For some licensees, receiving an infringement notice from time to time may simply seem like part and parcel of operating a small bar, tavern, nightclub or hotel in much the same way road users may occasionally receive a speeding fine.
It is easier, more efficient and certainly more cost effective in the short term to deal with an infringement notice like a speeding fine. By just paying the penalty and moving on, the infringement notice may seem like a minor speed bump in the otherwise long and often unpredictable road of owning and operating licensed premises. However, this is where the similarities between speeding fines and infringement notices end.
There may be a very big sting in the tail of the infringement notice. This sting may come in the form of a section 95 complaint lodged against the licensee by the Commissioner of Police. Section 95(4)(fa) of the Liquor Control Act 1988 (Act) states that there shall be proper cause for disciplinary action if “the licensee has been given an infringement notice under section 167 and the modified penalty has been paid in accordance with that section”. Once an infringement is paid, it is very difficult to successfully defend a section 95 complaint made pursuant to section 95(4)(fa) because by paying the infringement notice, the licensee has effectively admitted to breaching the Act.
The unsuccessful defence of section 95 proceedings can have significant consequences for licensees. The Liquor Commission (Commission) has at the one end of the spectrum, power to suspend or even cancel a licence altogether. More generally, a successful section 95 prosecution results in a sometimes substantial monetary penalty (potentially up to $60,000) and/or the imposition of strict trading conditions on the licence. The trading restrictions may include banning the sale of certain types of drinks by the licensee (such as energy drinks mixed with liquor or even cocktails), imposing a lockout on the licensed premises or any other condition the Commission deems necessary, to prevent further breaches of the Act.
The imposition of strict trading conditions can bring heavy detriment to the financial viability of the business.
So whilst it may seem like the easier option at the time to simply pay an infringement notice and be rid of the inconvenience, payment of the infringement may not be the end of the matter.
If a licensee receives an infringement notice, it is strongly recommended that the incident be the focus of a thorough internal investigation and if there is scope to potentially challenge the notice, serious thought should be given to initiating that challenge.
