4.2 Categories of Offences & Penalties

Why this matters

The Act creates a tiered set of offences and penalties. The LCQ exam expects you to know which section applies to which conduct, who is liable (licensee, manager, or "any other person"), and the maximum penalty for each. Get the section number and maximum penalty wrong and you will lose marks across multiple questions.

How the Act categorises offences

Four broad categories:

1. Offences by licensees and managers — the duty-bearing parties. Penalties typically combine a fine with licence suspension.
2. Offences by other persons — staff or patrons who are not the licensee or manager. Penalties are fines only.
3. Infringement offences (s260) — strict-liability, lower-level breaches dealt with by infringement fee, not prosecution.
4. Repeat-offender sanctions (ss288-290) — the "three negative holdings in 3 years" regime that can cancel a licence or certificate.

The principal offences and penalties

A note on s252 and s253: the licensee/manager has a defence if they took reasonable steps to take the person to a place of safety on the premises or to remove them from the premises.

Irresponsible promotions (s237) — what is banned

s237 prohibits, in the course of business:

• (a) doing anything that encourages (or is likely to encourage) people to consume alcohol to an excessive extent;
• (b) advertising/promoting discounts of 25% or more below ordinary price other than on the licensed premises or in an off-licence remote-sale catalogue;
• (c) holding a 25%+ discount promotion on the premises that can be seen or heard from outside;
• (d) promoting/advertising free alcohol (with limited exceptions, e.g. complimentary sampling on off-licence premises);
• (e) offering goods, services or prizes on the condition that alcohol is bought (other than offers made only on the licensed premises);
• (f) promoting alcohol in a manner aimed at, or with special appeal to, minors.

The 25% threshold is a favourite exam question. Memorise it.

Sale to minors (s239) — proof-of-age defence

It is a defence to a s239 charge if the defendant proves that:

• an approved evidence-of-age document was produced,
• it was believed on reasonable grounds to be genuine and to relate to the customer, and
• the defendant reasonably believed the customer was not under purchase age.

Alternatively, the defence is made out if the customer's age was verified using an approved evidence-of-age system in the approved manner. Approved evidence-of-age documents include a New Zealand driver licence, a New Zealand or foreign passport, and a Hospitality NZ-approved 18+ card / Kiwi Access Card.

Infringement offences (s260)

s260 lists the sections that are infringement offences: ss243, 244, 245, 250, 251, 254, 257 and 259. These are lower-level breaches — for example s244 (a minor found in a restricted or supervised area), s245 (a licensee or manager permitting that), s250 (manager intoxicated on duty), s251 (employee intoxicated on duty), and s257 (offences relating to evidence of age documents). An infringement fee is not more than $1,000 and is dealt with by an infringement notice rather than a court prosecution; the Police publish the actual fees, which include $250 for presenting false evidence of age and $250 for a minor being in a restricted or supervised area. A person issued with an infringement notice may elect to have the matter dealt with by a court.

Watch the section numbers here. Sections 250 and 251 are manager intoxicated on duty and employee intoxicated on duty — they are not the "allowing an intoxicated person to remain" offence, which is s252 and is not an infringement offence.

Note: the serious offences — s239 sale to a minor, s237 irresponsible promotion, s248 sale to an intoxicated person, s247 unauthorised sale — are not infringement offences. They are prosecuted through the courts and carry the higher penalties above.

Three holdings in 3 years (ss288-290)

This is the Act's "three strikes" regime and a high-yield exam topic.

• s288 defines a "negative holding": a finding by a court or the licensing authority that a licensee or manager has done one of a list of things — e.g. sold to a minor, sold to an intoxicated person, run an irresponsible promotion, or sold outside licence authority.
• s289 (licence): if a licensee accumulates 3 negative holdings within a 3-year period, all relating to the same premises, the licensing authority may cancel the licence. (Note "may" — it is discretionary for the licence.)
• s290 (manager's certificate): if a manager accumulates 3 negative holdings within a 3-year period, the licensing authority must cancel the manager's certificate. (Note "must" — mandatory for the certificate.) The cancellation takes effect immediately.
• 5-year disqualification (s292/s293): a person whose licence or certificate has been cancelled under s289/s290 cannot be granted a new licence (for the same premises) or a manager's certificate for 5 years.
• No High Court appeal: both s289(4) and s290(3) expressly provide that a cancellation decision cannot be appealed to the High Court. This is a carve-out from the usual s162 appeal on a point of law.

The contrast between "may cancel the licence" (s289) and "must cancel the certificate" (s290) is a classic exam trap.

Duty manager personal liability

A duty manager can be personally charged for offences committed on the premises — most notably under s239, s237, s248, s247, s252 and s253. This is separate from any action against the licensee. Personal liability is the reason the certificate holder must actively manage the floor, not just sign the duty roster.

Scenario

A tavern runs a "two-for-one Jagerbombs" night — a 50% discount advertised on a banner visible from the street. This is an irresponsible promotion under s237(b) and (c) (a 25%+ discount, visible from outside). If a 17-year-old is served, that is a separate s239 offence. If the duty manager personally pours the shot for an intoxicated patron, the manager can be charged personally under s248 as well as (or instead of) the licensee.