Burgess v Smith [2002] NZLLA 211 (6 May 2002)

Last Updated: 28 February 2010

Decision No. PH 211/2002

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 3472/98 issued to ANTHONY JAMES SMITH

BETWEEN RONALD FRANCIS BURGESS

(Tauranga District Licensing Agency Inspector)

Applicant

AND ANTHONY JAMES SMITH

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at TAURANGA on 12 April 2002

APPEARANCES

Respondent in person
Mr R Burgess – Tauranga District Licensing Agency Inspector – applicant

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Mr R F Burgess, the Tauranga District Licensing Agency Inspector, for the suspension of a General Manager's Certificate. The Certificate was issued to Anthony James Smith on 15 September 1998.

[2] The ground for the application for suspension is that the conduct of the manager is such as to show that he is not a suitable person to hold a certificate. In particular, it was alleged as follows:

"During October 2000 Mr Smith sold his business, AJ's Bar Maungatapu to Guy Hulme and his mother, Helen Small, (Hulme Investments Limited). Mr Smith signed references for Hulme and Small knowing at the time that those references were to mislead the Agency in respect of manager applications of the two and in respect of their experience in the industry."

[3] The Inspector attached to the application the decisions of the Authority in which the Authority declined the applications by Mr Hulme and Mrs Small for manager's certificates. The Authority suggested that a minimum period of nine month's experience would be necessary.

[4] In the decisions themselves, the Authority outlined the details of the way in which attempts were made by Mr Hulme and his mother to mislead the Agency. We note that in paragraph 8 the following comments were made:

"The owner of the bar was a Mr A J Smith. He held a Manager's Certificate. Apparently it was he who gave Mr Hulme and Mr Hulme's mother certain advice as to how the requirements of section 121(1)(c) of the Act could be circumvented."

[5] Mr Smith has said that that statement is not correct. He said that it was a real estate agent who gave the advice in order to progress the sale of the licensed premises. He said that what he had done, (to his regret), was sign the documents which were presented to him. It is possible that there may have been some financial motivation for him to do so in order to encourage the sale to go through.

[6] Mr Smith apologised unreservedly to the Authority for what he described as an act of stupidity. He said that he had no intention to deceive, but we are unable to see how that could not be possible. He said that since the sale of the business, he has been virtually unemployed. He has been working to get a new bar established. The bar is due to open in approximately one month's time.

[7] It was his argument that the new business would be unable to sustain the employment of a certified manager for too long. Mr Smith placed himself at the mercy of the Liquor Licensing Authority. In his favour, we note that Mr Burgess, the Inspector, indicated that as far as he was concerned, Mr Smith had always been a person who had run licensed premises very well.

[8] Viewed objectively, this was a serious act of misconduct by a certified manager. Initially we had in mind a period of six months suspension. In view of the circumstances and Mr Smith's apology, we suspend the manager's certificate for three months.

DATED at WELLINGTON this 6th day of May 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

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