McPeake, re [2002] NZLLA 365 (24 July 2002)

Last Updated: 1 April 2010

Decision No. PH 365/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by MAXWELL NEIL McPEAKE 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
Mr G J De Klerk – Whangarei District Licensing Agency Inspector – in opposition
Sergeant M F Stapp – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Maxwell Neil McPeake pursuant to s.118 of the Act for a General Manager’s Certificate. We remind ourselves at the commencement of this decision, of the criteria to which this Authority must have regard in considering such an application. These criteria are listed in s.121 of the Act, and are:

(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 with in any report made under section 119.

[2] In terms of those criteria Mr McPeake fills each category adequately, except in relation to his experience in the conduct of licensed premises. He is a mature 53 year old. He has had a wealth of work experience in the meat industry. He has been a Pastor and a Dean for 15 years. Over the last 6 years he has worked in the meat division of Big Fresh. He is currently the Meat Team Leader.
[3] The application comes about as a result of difficulties experienced by Big Fresh in obtaining duty managers to cover the hours that it trades, and to allow the full-time managers to have holidays and sick leave. As a consequence of the application being filed Mr McPeake was interviewed both by the Police and the District Licensing Agency Inspector. Both the Police and the Inspector were concerned at the lack of experience which Mr McPeake has had in the hospitality industry. They noted that he was working in the meat department and would continue to do so.
[4] Sergeant Stapp was concerned about a manager’s ability in terms of s.115 of the Act, to accept responsibility for compliance with the Act and the licence, if the manager was not in the vicinity of the checkout operation, and was unable to observe sales taking place. We share that concern. We accept that when interviewed Mr McPeake had very limited experience in the management of licensed premises. It was inappropriate for the application to be granted because of that lack of experience. It was also inappropriate for the application to be granted if Mr McPeake was going to continue with his present occupation only.
[5] When he gave evidence, however, Mr McPeake confirmed that over the last three weeks he has been appointed as a duty manager. He works 40 hours a week in the meat department, but then on Saturdays he has worked as the sole manager of the supermarket. He estimates that about 20 per cent of his time is involved in the checkout area. When working as duty manager, he has accepted responsibility for the proper running of the supermarket in terms of the Act.
[6] We take the view that that experience is not sufficient for the application to be granted. On the other hand Mr McPeake is a mature individual who comes with good character references. We see no reason why he should not become involved in the hospitality industry.
[7] We propose to adjourn this application for six months. The adjournment will have the advantage of enabling Mr McPeake to continue as duty manager. We will be requiring the Inspector and the Police to re-interview Mr McPeake in order to monitor his performance over the next six months.
[8] If at the end of that time they wish to continue with their opposition we will arrange a further public hearing. On the other hand, if they become satisfied that he has gained the necessary experience, then we propose to grant the application on the papers. In doing so we will be requiring an undertaking from Mr McPeake that he will not use his certificate other than with his present employer without the written consent of either the Inspector or this Authority.

DATED at WELLINGTON this 24th day of July 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

mcpeake.doc(aw)