Pub wins 5 year smoking battle

By Peter de Graaf


"An absolute waste of time and money" is how a Kaikohe publican is describing a five-year legal stoush over claims he allowed smoking in his pub.

Kaikohe Hotel owner Neal Summers made history in 2008 when he was the first Northlander to be prosecuted under the then four-year-old Smokefree Environments Act banning smoking in enclosed public areas. He was also hit with a record fine, $5800 plus $970 in court costs and fees.

However, two hearings, an appeal and many court appearances later, the case against him has been dropped.

Complaints over Mr Summers allowing smoking inside his hotel date back to 2007 but the prosecution, brought by the Ministry of Health, first reached the Kaikohe District Court in August 2008.

Mr Summers said he turned up at court at 9am on the day of the hearing and left an hour later when there was still no sign of ministry officials or lawyers. They arrived soon afterwards and the hearing went ahead without him, finding him guilty on all seven counts of failing to take all reasonable steps to prevent smoking inside the hotel.

The first Mr Summers knew of the outcome was when a radio station called to ask for comment about the record fine.

He took the case to the High Court at Whangarei, arguing proper process had not been followed when the hearing went ahead without him.

The High Court sent it back to Kaikohe in late 2009 for a re-hearing, and in 2011 a judge found Mr Summers guilty of six of the seven charges.

Mr Summers then requested the judge's ruling in writing, along with the reasons for arriving at his decision, but the judge suffered a stroke before he could write it up.

The ruling was eventually written up by another judge not present at the hearing, which Mr Summers said neither he nor the Crown accepted, sending the case back to square one and a possible third trail.

However, the case has now been dropped, with the Ministry of Health saying it had withdrawn the charges due to "an unreasonable time delay".

Acting deputy director-general Ashley Bloomfield said it was a unique situation beyond the control of either party.

"Since the prosecution, smokefree officers from Northland District Health Board have been monitoring the venue closely and have informed the ministry that the publican has been compliant with smokefree laws. The health board has also not received any further complaints," Dr Bloomfield said.

Mr Summers said the prosecution had been "an absolute waste of time and money". It had cost him thousands of dollars in legal fees and would have cost more if he had not represented himself. He had no idea what it had cost taxpayers but it was likely to be a significant amount.

It was a "damn shame" the Crown had convicted and fined him in 2008 when he was not present to defend himself.

At the time Mr Summers said his patrons did not smoke inside, but rolled their cigarettes indoors and placed them unlit in their mouths before heading outside - as was the custom in Kaikohe.

When patrons did light up inside, the law only required him to take all reasonable steps to stop them.

"I did that, short of having my arse kicked by a guy twice my size ... I'm not a bad guy, I'm just trying to run a business," Mr Summers said.

The smoking prosecution is not Mr Summers' only legal battle. He is currently fighting fines relating to driving his Segway on the footpath in Kaikohe and Kerikeri.

- Northern Advocate

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