Martin, re [2002] NZLLA 364 (24 July 2002)

Last Updated: 1 April 2010

Decision No. PH 364/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by WALTER MANE MARTIN pursuant to s.118 of the Act for a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WHANGAREI on 11 July 2002

APPEARANCES

Applicant in person
Miss K Cole – Whangarei District Licensing Agency Inspector – in opposition
Sergeant H Clement – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Walter Mane Martin for a General Manager’s Certificate. Mr Martin is 59 years of age. His predominant work has been in the construction business. Over the last ten years he has worked at the “Port Arms Tavern” as a barman, cleaner and cellarman. This is a full-time job which he enjoys. The proprietor of the business, a Mr Doake, encouraged Mr Martin to apply for the manager’s certificate. It appears that the main reason for making the application was that Mr Doake was required to manage a tavern in Ruakaka. Although his wife and daughter have managers’ certificates it was felt that if Mr Martin could obtain a certificate he may obtain more responsible employment.
[2] Mr Doake accordingly paid for the fees to enable Mr Martin to have training concerning Host Responsibility and for knowledge as a Liquor Licence Controller. Certificates to this effect have been produced in support of the application. There is a reference from Mr Doake. It states that Mr Martin has been employed as cellarman, cleaner and barperson and that he had always shown himself to be honest and reliable in all tasks given to him. Mr Doake said he had no hesitation in offering this character reference for Mr Martin.
[3] It seems to us that there may be some doubt as to whether the application before us is fully supported by Mr Doake. However, the main grounds for concern by both the Police and the District Licensing Agency Inspector, were:

• [a] The number of convictions relating to drink/driving, together with two convictions for driving while disqualified.
• [b] Mr Martin’s failure to fully disclose those convictions, and
• [c] Mr Martin’s inability to display a good knowledge of the Act and Host Responsibility.
  

[4] In particular, both reporting agents referred to his lack of understanding as to how to deal with intoxicated patrons. On the other hand, as far as we can tell, the premises themselves where Mr Martin has been working for ten years are apparently well run.
[5] The convictions are the most serious hurdle to the granting of this application. Mr Martin was first convicted in 1983 for driving with an excessive blood alcohol level. He has four subsequent convictions. In 1986 he had a level of 173 micrograms per 100 millilitres of blood. He was sentenced to periodic detention. In 1990 he refused to accompany an enforcement officer. At the same time he had an excess breath alcohol level of 786 micrograms of alcohol per litre of breath. On that occasion an assessment centre order was made. Two years later Mr Martin was sentenced to community service for driving while disqualified. In 1994 he received his fourth actual conviction for driving with an excessive breath alcohol content. The level was 732 micrograms of alcohol per litre of breath. Once again an assessment centre order was made. Finally, Mr Martin was convicted on 23 April last year for driving while disqualified. He said that it was raining, and he had to get some pills, so he took the chance. He was subsequently fined and disqualified.
[6] The number of previous convictions for drink/driving, combined with the two non-alcohol related charges of driving while disqualified, is of considerable concern. Had Mr Martin been through a rehabilitation programme, or had he been on a strict regime concerning abstinence, then the position might have been different. He says that he has slowed his drinking down a lot. He has acknowledged that this change may have happened from October/November of last year. He says that he only drinks beer. The last time he drank was a couple of weeks ago when his daughter arrived back from Australia. He says that he sometimes has a beer after work because he is allowed one free drink. He does not drink while he is working.
[7] He put down his failure to disclose the convictions to fading memory for many of the convictions, and the fact that he knew that the convictions would be picked up by the computer.
[8] We have to say that after listening to Mr Martin, we are concerned about his ability to run licensed premises. We note that under s.115 of the Act the responsibility for ensuring compliance with the Act and the conditions of the licence now rests solely on the manager. We note the concern expressed by agencies such as the Police and the District Licensing Agency Inspector to raise the standards for general managers, in order that the object of the Act contained in s.4 can be achieved.
[9] There are a number of previous decisions of the Authority on this point. Probably the most pertinent is Vermeer, LLA 881/96 in which it was said: “If [a person] 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 comply with both the Sale of Liquor and Transport Acts.” From now on a close scrutiny is kept of persons having that responsibility.
[10] We accept that Mr Martin has achieved the return of his driver’s licence some two months ago. This indicates that as far as the Transport Authority is concerned, he is no longer regarded as a risk. Even so, it is too soon in our view, for us to be satisfied that he will conduct any licence in a responsible way. In other words, we regret to advise that we are unable to have confidence that he will obey the law in relation to the running of premises. As a consequence of our finding this application must be refused.

DATED at WELLINGTON this 24th day of July 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

martin.doc(aw)