Sinclair [2000] NZLLA 835 (7 June 2000)

Last Updated: 16 February 2012

Decision No. PH 835/2000

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by IVAN BARRY SINCLAIR pursuant to s.123 of the Act for renewal of a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum:

Mr R J S Munro
Mr J W Thompson

HEARING at INVERCARGILL on 3 May 2000

APPEARANCES

Mr I B Sinclair – applicant – in person
Sergeant A R Christie – NZ Police – in opposition
Mr D F Rooney – Gore District Licensing Agency Inspector – in opposition

DECISION

This is an application by Ivan Barry Sinclair pursuant to s.123 of the Act for renewal of a General Manager’s Certificate. Renewal is opposed by the Police and a District Licensing Agency Inspector, resulting in the matter being set down for public hearing.

By consent, we heard the Police evidence first.

Sergeant P J Payne said that on 4 July 1999 Mr Sinclair made an application to renew General Manager’s Certificate No GM 346/97. Mr Sinclair first applied for a Certificate in December 1996. At the time he had previous convictions on five charges of driving while disqualified, three charges for driving with excess blood alcohol, one charge of driving with excess breath alcohol, one charge of refusing to provide a blood sample, one charge of careless use of a motor vehicle, one charge of cultivating cannabis and one charge of a minor consuming liquor in a public place.

Despite those convictions, neither the Police nor the Gore District Licensing Agency Inspector opposed Mr Sinclair's original application. On 3 March 1997 the Executive Officer of the Authority advised Mr Sinclair that because of his convictions the Authority wished to be satisfied that he was a suitable person to hold a Certificate and a public hearing would be held. On 26 June 1998 a Gore District Licensing Agency Inspector wrote to the Authority advising it that Mr Sinclair had not come to the attention of the reporting authorities in the interim and had no further convictions. The Agency requested the Authority to deal with the application "on the papers". On 28 July 1998 the Authority issued Mr Sinclair with a General Manager’s Certificate.

Sergeant Payne told us:

"On the 7th November 1998, Mr SINCLAIR was processed by the Police for Excess Breath Alcohol with his breath level reading 1037, just under three times the legal limit. He appeared in the Gore District Court on 18 November 1998, was convicted of the offence and Disqualified from Driving for 1 year, required to do 200 hours community service."

Mr D F Rooney, a Gore District Licensing Agency Inspector said that when Mr Sinclair first applied for a Certificate he listed only three offences committed between 1979 and 1996:

"It was subsequently found that the three previous convictions listed on the original application by Mr Sinclair were only a small portion of his previous convictions."

Mr Rooney supported Police opposition to renewal.

Mr Sinclair told the Authority that when he applied to renew his Certificate he was "under a lot of pressure" and had been to see a doctor. He works as a barman at the Falls Hotel in Mataura and is paid more if he holds a General Manager’s Certificate. On the morning he was apprehended he had finished work at 6.30 pm the previous day. He had not been drinking before that time. His recollection was that he left the hotel premises between 8.30 pm and 8.45 pm.

At the conclusion of the hearing we invited Mr Sinclair to obtain written references from his employer. These have now been received.

Mr J J Lynch, General Manager of the Mataura Licensing Trust wrote that "at all times Ivan has proved himself competent in all aspects of his employment." He had "no hesitation in recommending him as a suitable person to be issued with a Managers Certificate ..."

Mr Paul Matheson, Manager of Falls Hotel wrote:

"Ivan has worked at the Falls Hotel for over ten years, the last 2 ½ years while I have been manager. Ivan is very good at his job and is well liked by the locals. With longer hours in the hotel industry and Sunday trading, Ivan has been given more responsibility, being in charge of many shifts for which having a Manager's Certificate is of great importance. He has thrived on this responsibility and trust.

Ivan has a good relationship with our local Police Force and knows what is expected of him."

Conclusion

In considering any application for the renewal of a Manager’s Certificate, the Authority is directed by s.126 of the Act to have regard to the following matters:

"(a) The character and reputation of the applicant:
(b) Any convictions recorded against the applicant since the certificate was issued or last renewed;
(c) The manner in which the manager has managed the sale and supply of liquor pursuant to the licence, with the aim of contributing to the reduction of liquor abuse;
(d) Any matters dealt with in any report made under section 123 of this Act."

Mr Sinclair's management of the sale and supply of liquor is not directly in question, but his list of convictions is of considerable concern. The most recent one is of direct applicability pursuant to s.126(b), and the lengthy list is relevant in this renewal application pursuant to s.126(a) and (d). Despite no opposition being indicated in reports when the application was initially granted, the Authority originally intended to conduct a public hearing because of the listed convictions.

Time passed. No further offences occurred and the Agency actively supported Mr Sinclair by recommending approval of the certificate "on the papers". The Authority agreed and granted the certificate.

Only three months after being granted the Certificate – a legal privilege – Mr Sinclair was apprehended with a breath/alcohol level nearly three times the legal limit indicating heavy consumption of alcohol. In his evidence Mr Sinclair said he had drunk no alcohol before 6.30 pm and that he had left the premises between 8.30 pm and 8.45 pm. He was stopped by Police at 12.30 am.

This leaves the Authority in doubt as to willingness and ability to uphold the law. It is the willingness and ability to encourage others to uphold the law – sometimes under trying conditions that we look for. A Manager's personal example is an obvious factor.

In these circumstances we will follow the recommendations of both the Police and the Agency Inspector.

The application is refused.

DATED at WELLINGTON this day of 2000

R J S Munro J W Thompson
Member Member

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