McIntyre, re [2002] NZLLA 164 (10 April 2002)

Last Updated: 23 February 2010

Decision No. PH 164/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by ANGUS DAVID JOHN McINTYRE pursuant to s.118 of the Act for General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at CHRISTCHURCH on 13 March 2002

APPEARANCES

Applicant in person
Mr A C R Sullivan – Christchurch District Licensing Agency –
Sergeant J Armstrong – NZ Police -

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Angus David John McIntyre for a General Manager's Certificate. We remind ourselves of the criteria to which we must have regard in considering such an application. These criteria are listed as:

"(a) The character and reputation of the applicant:

(b) Any convictions recorded against the applicant:

(c) Any experience, in particular recent experience, that the applicant has had in managing any premises or conveyance in respect of which a licence was in force:

(d) Any relevant training, in particular recent training, that the applicant has undertaken and any relevant qualifications that the applicant holds:

(e) Any matters dealt within any report made under section 119."

These reports are provided to us by the District Licensing Agency and the New Zealand Police.

[2] In terms of the criteria there is no cause for concern with the character and reputation of the applicant. He has worked continuously in the hospitality industry since leaving school. Apart from the conviction, to which reference will be made shortly, he has the uncommitted support of his employers. A reference was provided. Although he is 22 years of age, he is a young man in whom both his employers and indeed the Authority would have confidence in his maintaining employment within the hospitality industry.

[3] In terms of experience, Mr McIntyre commenced employment at the Arts Tavern and Restaurant on 4 October 1997. He has worked his way up through the ranks. He has been a bar supervisor since 13 November 2000.

[4] In terms of relevant training, the application was accompanied by a certificate from the New Zealand School of Food and Wine certifying that Mr McIntyre had successfully completed the Sale of Liquor Act assignment approved by the District Licensing Agency.

[5] In may be that in the slightly artificial atmosphere of a public hearing, Mr McIntyre did not display a full understanding of his responsibilities to the law and the conditions of the liquor licence. Nevertheless, we are satisfied that he will have considerable support from the restaurant and bar managers who employ him.

[6] The only issue raised properly by the Police and by the Agency, relate to convictions for driving with an excessive breath alcohol content and careless driving. It appears that about 5.00 am Mr McIntyre was found to be driving a motor vehicle with a flat front left tyre. It had been considerably damaged. Evidential breath tests disclosed 844 micrograms of alcohol per litre of breath. Mr McIntyre came before the District Court on 10 March 1999. He was fined a total of $800 and was disqualified from holding or obtaining a driver's licence for eight months.

[7] The Police and the Agency have referred us to previous decisions of the Authority. They have left it to the Authority to make a decision as to whether in the light of those convictions the application should be granted.

[8] Mr McIntyre has given evidence before us. He acknowledged that he displayed poor judgment. He said that it was a wake-up call for him. He believes that he has matured considerably in the last three years. This belief is supported by his employers. The incident has been described as a youthful indiscretion. It is accepted that he does not have a drinking problem. Certainly, he has curtailed his drinking habits since then.

[9] The case of Osborne LLA Decision 2388/95 is appropriate. In that decision the Authority made a number of comments:

"Without fettering ourselves in this or other applications, it may be helpful if we indicate that we commonly look for a five year period free of any serious conviction or any conviction relating to or involving the abuse of alcohol or arising in the course of an applicant’s duty on licensed premises."

On the other hand it said further on:

"Less serious convictions are also weighed. By way of an example as an isolated excess breath blood alcohol conviction or a single driving offence disclosing no pattern of offending. Nevertheless all convictions must be weighed as required by s.121(1)(b). In these and similar cases we frequently indicate that a minimum of two years from the date of conviction may result in subsequent favourable consideration providing suitable reports from both the Police and the Licensing Inspector are received."

[10] While every case must be decided on its merits, there is no pattern of offending here. We were impressed with the committed support of Messrs Finn, the restaurant manager, and Herrick, the bar manager. These men have a combined 27 years of experience within the hospitality industry. They both hold current General Manager's Certificates. Both have seen fit to come here today to support Mr McIntyre. We have heard from Mr Herrick on behalf of both of them. They support this application. Indeed, the business has gone some way toward funding it.

[11] Because there is no pattern of offending, and in view of the support shown by the employers, and in the light of Mr McIntyre's long apprenticeship within the industry, we have determined that this is an appropriate case to grant the application.

DATED at WELLINGTON this 10th day of April 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

McIntyre.doc(nl)