Bork, re [2002] NZLLA 157 (9 April 2002)

Last Updated: 22 February 2010

Decision No. PH 157/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by STEPHEN WILLIAM BORK pursuant to s.123 of the Act for renewal of a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at AUCKLAND on 25 March 2002

APPEARANCES

Applicant in person
Mr G S Whittle – Auckland District Licensing Agency Inspector – in opposition
Constable J Muir – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] Mr Bork is currently employed as the bar manager at the Mt Wellington Bowling Club. He has held that position for two years. It is a full-time position. He works 40 hours per week, although during the season he tends to work longer hours. Part of his job is to look after the poker machines. The club has approximately 200 members. There are two other people at the club who have manager's certificates.

[2] Mr Bork said that he had been involved in the industry all his life. He had worked at the White Heron Hotel in Parnell as the Food and Beverage Manager. Later he worked as an assistant manager at the Liquor King chain of stores.

[3] He obtained a General Manager's Certificate in 1991 following the change from the 1962 Act to the 1989 Act. The latter Act emphasised the need for such a qualification. He renewed his certificate in 1992, and again in 1995 and 1998. He has never been convicted of any offence under the Sale of Liquor Act.

[4] The Police and District Licensing Agency Inspector opposed Mr Bork's application on two counts. First, on the basis of Mr Bork's convictions. Secondly because he understated his convictions when completing the application form. When completing the application form Mr Bork was asked "Has the applicant been convicted of any offence since the previous Manager's Certificate was issued or last renewed?" Mr Bork ticked the "No" box.

[5] The applicant's combined conviction and history sheet discloses that since Mr Bork's General Manager's Certificate was last renewed he has received two convictions for driving with an excess breath/blood alcohol level. On 19 April 2000 he was convicted for having a level of 142 mgs of alcohol per 100 mls of blood. On 8 August 2001 he was convicted for driving with an excess breath alcohol level of 618 mgs per litre of breath. He was fined $1,250 and disqualified from driving for one year. That was his third conviction. He had previously been convicted on 20 May 1987 for an excess blood alcohol level of 101 mgs of alcohol per 100 mls of blood.

[6] Mr Bork said that he had no intention of misleading the Authority by not disclosing his convictions. He said that he filled in the form in haste because his certificate was due to expire that day. He said that he had asked a lady at the District Licensing Agency Office if he needed to disclose his traffic convictions. She told him that it was unlikely that such convictions would be relevant.

[7] Mr Bork said that his conviction on 19 April 2000 was the result of having just gone through a relationship break-up. He had gone to a bar in Ellerslie and had consumed too much liquor. He was off duty at the time. Even though the breath test showed that he was over the statutory level he felt that he was under that level so he requested that the blood sample be taken.

[8] Mr Bork's conviction on 8 August 2001 came about because he had been invited to attend a function at work for a member who was leaving. It was his day off, he had not eaten, and when he was driving home he went through a Give Way sign. He was stopped and breath tested.

[9] Mr Bork said that he currently attends AA meetings one day a month. He did not think he was physically dependent on liquor, and he still has the occasional drink.

[10] Although he holds a General Manager's Certificate, he said that he has never undergone any training in the Sale of Liquor Act. He said that he knows what he is supposed to do, but he does not have any knowledge of the Act. Consequently he was unaware of the significance of having convictions for driving with an excess breath/blood level, or the significance of being totally honest when completing the renewal application form.

[11] Mr Whittle drew Mr Bork's attention to the application form, and in particular the word "any" was in bold type. He acknowledged that the word "any" was in bold type. When all of the evidence had been given the Authority indicated to Mr Bork that he may wish to seek legal advice. Mr Bork accepted the offer of an adjournment and today he has advised us that had taken legal advice and he wished to take the matter no further. The Authority is governed by s.126 of the Act. That section reads:

In considering any application for the renewal of a manager's certificate, the Licensing Authority shall 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 124 of this Act.

[12] In D J Enterprises Limited LLA 531-532/97, the Authority said:

"The guiding hand or hands-on operator of any company while the potential holder of a General Manager's Certificate now receive greater scrutiny from both the Police and other reporting agencies. Character and reputation are closely examined. The law and human desires of patrons frequently tug in different directions. The Police cannot be everywhere. Little but a licensee's or manager's character and suitability may stand between upholding the law and turning a blind eye. Self-imposed standards in accordance with the law must be set by licensees and holders of General Manager's Certificates who control the managed licensed premises."

[13] We have said a number of times that the standards for managers of licensed premises have been raised significantly following the passing of the Sale of Liquor Amendment Act 1999. On 1 April 2000 the Amendment to s.115 of the Act came into force. The new relevant provision says:

"At all times when liquor is being sold or supplied to the public on any licensed premises a manager must be on duty and responsible for compliance with this Act and conditions of the licence."

[14] The Amendment to the Act represented Parliament's intention to shift the responsibility of running licensed premises from the licensee to the manager. The expectation was that in future managers would be fully trained to understand the Act. They would have experience in the conduct of licensed premises, and they would be responsible citizens, able to lead by example. Such a person would be on duty at all times when the bar was open.

[15] The reasoning behind the Amendment was that if the managers were fully conversant with, and upheld the requirements of the law, then the object of the Act, being the reduction of liquor abuse, should be more achievable. In Vermeer LLA 881/96 the Authority approved a submission that:

"Because of Mr Vermeer's convictions, all of which relate to alcohol and motor vehicles, and the fact that he has accumulated four convictions over a ten year period, this leads Police to the inevitable conclusion that he is not a fit and proper person to hold a Manager's Certificate. If Mr Vermeer cannot control his own drinking habits and comply with the law then he is going to be totally unable to influence others to act responsibly, and to comply with both the Sale of Liquor and Transport Acts."

[16] It is for the above reason that self-imposed standards referred to in D J Enterprises Limited are so important.

[17] Also in Paul John Davidson LLA 419/2001 we said we regard a conviction against the holder of a General Manager's Certificate with greater seriousness. We take the view that people in the industry should be more aware of the problems relating to the abuse of liquor than the ordinary citizen.

[18] In another recent case we said that how a General Manager conducts his or her private life is of relevance to whether that person should hold a General Manager's Certificate. We refer to the Authority's comments in Henry v Strange LLA 1632/96, regarding an application for cancellation of a General Manager's Certificate:

"A serious question raised by this application is how off-duty conduct involving the consumption of alcohol should be weighed when considering the suitability of an individual to continue to hold a General Manager's Certificate.

In many occupations off-duty conduct is commonly ignored. An exception may arise when the conduct impacts upon work performance. Few trades or professions have a direct legislative link which requires that conduct - including out of hours activities, be considered under the quasi-disciplinary procedure of s.135 of the Act. Nevertheless, that burden is imposed by Parliament on licensees (under s.132) and managers under the Sale of Liquor Act 1989. Their conduct and suitability may be examined at any time if an application is brought before this Authority.

Section 135 provides a cancellation, or suspension of the Certificate for up to six months, may be imposed where on stated grounds. A Police Officer or Licensing Inspector brings an application before the Authority."

[19] As the holder of a General Manager's Certificate, Mr Bork's lack of training and failure to keep up with changes to the Act is of concern, although it is acknowledged that he has no convictions under the Sale of Liquor Act. Nor does he appear to enjoy the support and endorsement of the club where he works.

[20] As the Inspector submitted, one conviction involving liquor abuse may be excusable. Two cannot be ignored, especially when viewed against the backdrop of the 1987 incident.

[21] The application for renewal must be declined. We indicate that a period of 2½ years from the date of the last conviction would have to pass before an application could be considered again with confidence.

DATED at WELLINGTON this 9th day of April 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

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