Wharekura, re [2002] NZLLA 73 (26 February 2002)

Last Updated: 19 February 2010

Decision No. PH 73/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by PHILIP LESLIE WHAREKURA 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 ROTORUA on 14 February 2002

APPEARANCES

Mr W R ah Chan for applicant
Ms J A Smale –Rotorua District Licensing Agency Inspector – in opposition
Sergeant M Morehu – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Philip Leslie Wharekura for a General Manager’s Certificate. We remind ourselves of the criteria to which we must have regard in considering any such application. The criteria are listed in s.121 of the Act and read:

"(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] The position here is that Mr Wharekura has been involved with a restaurant known as "Chopsticks" for approximately 10 years. During that time he obtained a General Manager’s Certificate. In 1994 he completed a manager's certification course with the Rotorua District Licensing Agency. In July 2000 he allowed his manager's certificate to lapse. Apparently he was overseas. He reapplied for a new certificate. This was recommended to be granted by the District Licensing Agency Inspector. It is noted that at that time he neglected to mention his two previous convictions for driving with an excessive breath alcohol content. However, it was accepted by the Agency that there had been no deliberate attempt to mislead. Notwithstanding the proximity of a 1995 conviction, the application was granted.

[3] Regrettably Mr Wharekura failed to renew his certificate in July/August of last year. Apparently he was away from Rotorua again. As a consequence he has now had to make this application. When reporting on the application the District Licensing Agency Inspector said that one failure to renew could be regarded as an oversight. Two is an indication of unsuitability. The Authority has said in previous decisions that a failure to renew a licence is an example of a lack of suitability.

[4] The Police expressed some concern about the fact that Mr Wharekura has two convictions as we have indicated. The first conviction occurred in 1989. The charge was driving with an excessive breath alcohol content. The level was 850 micrograms of alcohol per litre of breath. There was a second conviction in December 1995. The level was 952 micrograms of alcohol per litre of breath. The Sergeant has correctly pointed out that the levels were significantly high. On the other hand Mr Chan on behalf of the applicant has referred to a previous decision of this Authority, being Osborne LLA 2388/95 in which we said:

"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."

[5] There are a number of concerns. There are the oversights referred to by the Inspector. There is the fact that the relevant training occurred in 1994. The initial interview with Mr Wharekura, and the fact that some of his answers to questions today indicated a basic lack of knowledge of his responsibilities under the Sale of Liquor Act.

[6] Mr Wharekura freely acknowledged his negligence in renewing the manager's certificates. He also said that he runs a restaurant. Not a great deal of liquor is consumed at the restaurant. He has assisted other people to obtain manager's certificates, and he has become aware over a period of time that he has fallen behind in his knowledge of recent amendments to the Act.

[7] He has, through his consultant, given an undertaking that he will complete a training course with W A Consulting Group in two units and also undertake the LCQ.

[8] There is no question that in our view Mr Wharekura has had a large wake-up call. As a consequence of this he has employed a liquor licensing consultant, and he has given an undertaking to complete training.

[9] We believe that Mr Wharekura is now fully aware of the recent attempts within the industry to increase the standard of training and knowledge of general managers. They have been required to assume much greater responsibility following the 1999 amendment to the Act.

[10] In all the circumstances of this case we have decided to adjourn the application for six months. If after that period, we receive a report from the District Licensing Agency Inspector to confirm that Mr Wharekura has completed the courses which he has undertaken to complete, and if at the same time, he has demonstrated to the Inspector a better knowledge of his responsibilities under the Act, then we would propose to grant the application on the papers.

[11] In ordering this adjournment, we would wish to point out to Mr Wharekura that in our view the adjournment would allow him to continue to work as a temporary manager in terms of s.128 of the Act.

DATED at WELLINGTON this 26th day of February 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

Wharekura.doc(nl)