The First Three Strikes law which was enacted earlier this year is aimed at targeting repeat offences and not to adversely affect responsible licensees according to authorities. The first strike is incurred when the licensee or manager of the licensed premises commits a prescribed offence such as permitting intoxication or breaching of a liquor licence and will remain on the venues record for 3 years.
The second strike would be incurred at the discretion of the Director-General if the licensee or manager of the licensed premises commits a prescribed offence during the three year period in which the first strike is in force.The third strike is incurred at the discretion of the Casino, Liquor and Gaming Authority if the licensee or manager of the licensed premises commits a prescribed offence during the period in which two strikes are in force.
However, now the First Three Strikes Legislation has been dealt a blow by a case involving The St. Kilda Hotel in New South Wales. The venue successfully challenged the allegations made against it and had its name removed from the register. The venue was placed on the Register earlier this year due to an intoxicated patron. However the new ruling has found that the venue did make a reasonable effort to prevent intoxication.
This has implications for the system according to the lawyer that represented the venue. It shows that patrons can slip through the cracks even if venues do their best to prevent intoxication. It also demonstrated, according to the lawyer, that the system is flawed and would basically be clogging up the judicial system which is already so over extended.
While the aim of the legislature was to catch culprit venues that were not adhering to responsible alcohol service laws, many feel it has failed in this regard.
This post on TheShout.com has more:
The St Kilda Hotel in Armidale, NSW – one of the first venues to be placed on the Register, in March – challenged the allegation of ‘permit intoxication’ in Armidale Local Court.
Magistrate Richardson found that, although the relevant patron was intoxicated, the licensee had taken all reasonable steps to prevent intoxication and was therefore not guilty of any offense.
Tony Hatzis, of liquor and gaming specialist lawyers Hatzis Cusack, told TheShout that the ruling has wide-reaching significance for venues, not the least of which is that the Register was challenged and the venue removed.
“The old view was that the licensee would automatically be guilty if a patron was found to be intoxicated at a hotel.
“Now it is recognised that, despite best efforts by licensees, one or two patrons might slip through the net.
“So long as the licensee has taken reasonable safeguards to prevent intoxication, the licensee will not be guilty.”
The Australian Hotels Association welcome the decision, pointing out that this is a significant example of how the legislation has failed to do the job for which it was intended.
“Three Strikes is not working,” AHA (NSW) CEO Paul Nicolaou told TheShout. “So called rogue operators targeted have escaped sanction, whilst country pubs, small clubs and restaurants have acquired strikes under a scheme best described as an administrative basket case.
“The intent of the legislation is well removed from the reality of its operation.”
“The current legislation just means that every subjective allegation of intoxication lodged by police will be defended and most times successfully, clogging up an overstretched court system and costing licensees and Police legal fees.
“We were told the intent of the Three Strikes legislation was to capture the rogue operators but so far, this has not been the case at all and we’ve seen everyday operators being incurred with Strikes or legal fees defending allegations.”
Source: http://www.theshout.com.au/2012/08/31/article/Pub-wins-first-3-strikes-challenge/AJOSLFPRCW.html