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Ryder v Smith [2010] NZLLA 915 (26 August 2010)

Last Updated: 3 September 2010

[2010] NZLLA PH 915

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number GM/007/1191/09 issued to SHAY LLEWELLYN SMITH

BETWEEN JOANNA KATE RYDER

(Police Officer of Auckland)

Applicant

AND SHAY LLEWELLYN SMITH

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Ms J D Moorhead
Mr P M McHaffie

HEARING at AUCKLAND on 12 August 2010

APPEARANCES

Constable C D Lally - NZ Police - applicant
Mr S L Smith - respondent
Mr D Thomson - Auckland District Licensing Agency Inspector - to assist

DECISION OF THE AUTHORITY

[1] Before the Authority for determination is an application by the Police pursuant to s.135 of the Act for suspension of the General Manager's Certificate issued to Shay Llewellyn Smith.

[2] The ground for the application is that the conduct of the manager is such as to show that he is not a suitable person to hold the certificate. In particular it was alleged that Mr Smith had incurred a conviction for driving while impaired, in that his blood contained a controlled drug.

[3] Sergeant Christopher David Lally is the officer in charge of the eastern area liquor licensing section. Part of his duties is to oversee the monitoring of persons holding General Managers’ Certificates to ensure they continue to meet and maintain the criteria to hold such a certificate.

[4] Sergeant Lally gave evidence that on 31 May 2010 the Police received an application for renewal of the Ellerslie “Cock and Bull”, liquor licence. Routine Police checks were conducted on the list of duty managers provided. These checks showed that one of the listed duty managers, Mr Smith, had an active charge.

[5] On 4 January 2010 Mr Smith was the driver of a motor vehicle on Eaglehurst Road, Ellerslie. He was stopped by Police due to his manner of driving and exhibited signs of recent cannabis consumption. Mr Smith admitted to smoking cannabis before driving and was required by the Police Officer to undergo a compulsory impairment test. This test gave the officer cause to suspect that Mr Smith was impaired by his cannabis consumption. He was subsequently required to provide a blood sample. The blood test returned a positive result for tetrahydrocannabinol, the active ingredient in cannabis. Mr Smith was subsequently charged with driving while impaired.

[6] On 24 June 2010 Mr Smith was convicted in the Auckland District Court, fined $450, ordered to pay Court costs of $130 and disqualified from driving for six months.

[7] Sergeant Lally produced a copy of the Police summary of facts in regard to the incident, as well as Mr Smith’s conviction history which Mr Smith agreed was correct. Sergeant Lally also noted that Mr Smith is currently in his probationary year of holding a manager’s certificate which is due for renewal on 20 November 2010.

[8] We heard from Mr Smith. He said that he had made a foolish and stupid error of judgement when he chose to drive his vehicle after consuming cannabis. He said that at the time he did not think about the consequences or the impact that it might have on his General Manager's Certificate.

[9] He said that he had been working in the hospitality industry since the middle of 2003 and had started working at the “Cock and Bull” in September 2008. He said that he enjoyed working in the hospitality industry and that this was his career choice. While Mr Smith initially said that this was a one time offence, he then admitted that he was still using cannabis and was equivocal about his intentions as to whether he would continue to do so. In this respect he was extremely candid in his responses.

[10] Mr Smith said he realised he had made a serious mistake and that there needed to be consequences. He said that he was willing to complete any probation or stand down period or other requirements that may be asked of him in order to prove that he is a fit and proper person to have in the hospitality industry.

[11] Mr Smith was extremely fortunate to have the support of his employers, particularly given that he had not initially advised them of the situation that he was in as a result of the conviction.

[12] Mr Alexander Ford is the site manager at the Ellerslie “Cock and Bull” and although he has only been with the company for eight weeks he has some 20 years in the industry. He said that in the time he had been working with Mr Smith he had never had any reason to suspect illicit drug taking on shift. Despite being shocked to hear that Mr Smith was still using drugs he was prepared to continue in his support of Mr Smith and had found him to be a very loyal and valuable employee.

[13] Ms Kirsten Franklin is the Human Resources Manager for the “Cock and Bull” group and has known Mr Smith for the time that he has been employed there. She said that as duty manager he had shown great potential and that he had previously had a clean record with the company, otherwise he would not have received its support. She also had not been aware of the continued drug taking and said that the company had a zero tolerance to drug use.

[14] After discussions with his employer Mr Smith agreed that he would stand down for 12 months as a duty manager. During that time the company intends to work with him and may require him to undergo drug testing. It was also suggested that they would support him undertaking a CADS course.

[15] The Authority’s view in relation to drug use was made clear in the decision of Wesley Tua NZLLA PH 375/2008 where the Authority commented in relation to Mr Tua’s drug related past that had not resulted in criminal convictions as follows:

“Mr Tua faces two difficulties firstly the incidents involving drugs. It is accepted that these are not convictions however experience shows that there is quite often a connection between the sale of liquor and dealing in drugs. Both items are of course drugs although one is legal and the other is not. We have a policy that attempts to ensure that people who have an involvement with the drug subculture do not enter the hospitality industry in a managerial or leadership role. Mr Tua has yet to establish that he is completely free of the drug subculture.”

[16] In relation to the current application we are satisfied that the grounds for suspension have been made out. However, given Mr Smith’s undertaking made at the hearing to stand down from managerial duties, we have decided that it is not desirable to make an order for suspension. He is standing down from his duties as of the date of the hearing. We note that the General Manager's Certificate is due to be renewed in November 2010. Mr Smith has also agreed that he will not make an application for renewal.

[17] If Mr Smith chooses to make a new application at a future date we would expect that he be able to show that he is free of his drug use. That however, is a matter for the future.

DATED at WELLINGTON this 26TH day of August 2010

B M Holmes
Secretary

Shay Smith.doc(aw)