The NSW Government is set to announce more welcome news for publicans, as cabinet considers plans to shift burden of the dreaded ‘Strikes’ from premises to operator.
Liquor & Gaming’s Three Strikes scheme is intended to “target licensees or managers” that wilfully and repeatedly break serious liquor licensing laws, such as serving underage or breaching licence conditions.
To date Strikes have – to the frustration of many venue owners – been linked to the physical location, or ‘bricks & mortar’, rather than the specific operator or licensee that was negligent.
This has resulted in many instances of freehold owners left with a property seriously devalued due to the mistakes or poor behaviour of a leaseholder or employee.
Strikes have also begun influencing financial arrangements, with banks inserting conditions or clauses relating to the venue incurring a Strike, purchasers encountering difficulty securing finance for venues that hold Strikes, and even LVR issues when financiers choose to revalue licensed venue assets after they receive a Strike.
Sources have confirmed to PubTIC that correcting this mis-targeting is the goal of a proposal by the NSW Liberal Government now before cabinet.
The proposal seeks to transfer the recording of a Strike to the actual perpetrator – in the spirit of the original legislation.
The news will be music to the ears of many freehold owners and operators around the State, and will hopefully apply retrospectively to some of the pubs currently enduring licence conditions as a result of someone else’s performance.
Former Redcape and PHMG executive Alistair Flower bought the Settler’s Inn Tavern in Port Macquarie earlier this year, after hoop acrobatics to overcome the Strike incurred by the previous leaseholder.
Once the purchase was secured, Flower still had to abide by tough licensing conditions and consequences of being tarred with the ‘naughty’ brush despite no incident history.
“This is welcome news indeed,” Flower told PubTIC.
“When we bought the hotel we had to cop the Strike. It was out of our control.
“Since then we’ve made sure we’re running a squeaky clean operation, and the pub has gone from being in receivership to recently winning a local business award for the Best Pub, Club or Bar in the region.
“We haven’t had any issues, we’ve got a renovation underway, and we’re really starting to hit our straps. Losing the Strike would be a great help and incentive.”
A licensed venue will automatically incur a Strike upon conviction for a single relevant offence. Second and third Strikes, for later offences, are at the discretion of the Secretary of the NSW Department of Justice and Independent Liquor & Gaming Authority (ILGA), respectively. Once incurred, they are on record for three years.
When determining the application of a Strike, authorities consider the venue’s size and capacity, compliance and incident history, and changes to business practices.
Consideration is in theory given to any change of licensee or owner of the business, but this has not officially applied to the new or incoming owners of a venue already holding a Strike.
A third Strike will typically result in the premises either losing or having its liquor licence suspended.
The Australian Hotels Association NSW welcomes today’s news, even going further to note some Strike offences themselves need to be reviewed or revised.
“The 3 strikes scheme needs to be changed so those who are actually responsible for the offence are the ones penalised,” a spokesperson responded to PubTIC.
“There also needs to be reform on what constitutes a strike. For example, currently allowing staff to have a drink after closing is a Strike-able offence.”
OFFENCES THAT CAN LEAD TO A STRIKE
- Sale or supply of liquor outside of the approved trading hours for the licensed premises (section 9)
- Breach of a licence condition (section 11(2)) relating to:
- conditions imposed under section 144E (i.e. as a result of strikes being incurred)
- Clauses 2A–5 or 7 of Schedule 4 (applying to premises included in the violent venues scheme)
- Part 6, Division 3 of the Act – Kings Cross Precinct special licence conditions
- Part 6, Division 4 of the Act – Sydney CBD Entertainment Precinct special licence conditions
- Permitting intoxication or indecent, violent or quarrelsome conduct (section 73(1)(a) or (b))
- Selling or supplying liquor to an intoxicated person (section 73(2))
- Permitting the sale, possession or use of any substance that the licensee suspects of being a prohibited plant or a prohibited drug (section 74(1)(b) or (2))
- Failure to comply with a direction given by the Director General (section 75(3))
- Failure to comply with a short-term closure order (section 82 (6))
- Failure to comply with a long-term closure order (section 84 (7))
- Failure to comply with a notice issued by the Director General* restricting or prohibiting activities that encourage misuse or abuse of liquor (section 102A (2))
- Selling or supplying liquor to a minor or allowing such sale or supply (section 117 (1), (2) or (8))
- Licensees and managers liable for act of employees etc in respect of a contravention of sections 73(2), 75(3) or 117(1) or (2) (section 149)