Panpayap, re [2003] NZLLA 219 (7 April 2003)

New Zealand Liquor Licensing Authority

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Panpayap, re [2003] NZLLA 219 (7 April 2003)

Last Updated: 1 March 2010

Decision No. PH 219/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by PANTUMART PANPAYAP 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 NELSON on 27 March 2003

APPEARANCES

Mr P Panpayap – applicant
Mrs A J Ward-Hamilton - Nelson District Licensing Agency Inspector – to assist
Sergeant T V Walker - New Zealand Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Pantumart Panpayap for a General Manager’s Certificate. It is the second application made by Mr Panpayap. He was granted a General Manager’s Certificate on 1 October 2001, but due to the fact that the renewal papers were mislaid, there was no renewal application. Accordingly the certificate lapsed on 1 October 2002.

[2] The second application was completed by Mr Panpayap’s wife as she has a much better understanding of the English language than her husband. She is the holder of a General Manager’s Certificate. She incorrectly completed the application form in respect of a conviction. She has explained that she had not appreciated that traffic convictions could be as important as criminal convictions. It was because of the conviction that the Police have opposed the application. The Police also had concerns about the incorrect completion of the application form.

[3] The conviction itself arises from Mr Panpayap attending the “Shark Club” on the night of 30 September 2002, shortly before his manager’s certificate was due to expire. At 1.49 am on the morning of 30 September last, he was driving a motor vehicle at Rutherford Street. Evidential breath tests procedures were carried out and a positive result of 444 micrograms of alcohol per litre of breath was obtained. This was Mr Panpayap’s first conviction. In the light of the level obtained we are prepared to accept that he does not have an alcohol problem and does not generally drink to excess.

[4] Mr and Mrs Panpayap run the “Suki Thai Restaurant” in Hardie Street, Nelson. Because the premises is operated under a restaurant licence, and because of its ethnic nature, liquor abuse is very unlikely to be an issue. Nevertheless the conviction was entered for driving with an excessive breath alcohol content, quite recently on 21 October 2002. The Sergeant has submitted that the decision Osborn’s case, LLA 2388/95, is on point. In that case, the Authority suggested that a guideline of a minimum of two years conviction free from the date of conviction in isolated cases which involve liquor abuse.

[5] The other issue which has arisen during the course of the hearing is that Mr Panpayap does not have a good grasp of the English language. In situations such as this, his ability to maintain the law would be dependent on his knowledge of the law. If he is unable to read or comprehend English, then we would have some concerns about his ability to ensure that, for example, prohibited persons are not served with liquor on the premises. This is very much a balancing exercise. In these circumstances we have taken into account, (a), the fact that he has already had a manager’s certificate; and (b) that if an application had been brought pursuant to s.135 of the Act, on the assumption that his manager’s certificate was renewed, then there would have been a suspension order of between one and three months.

[6] In balancing all factors, and in particular the type of licensed premises, and the level of alcohol in the breath, we have decided to adjourn these proceedings for 12 months. During that period of 12 months we would require an undertaking from Mr Panpayap that he would only use a manager’s certificate for the running or assisting to run the “Suki Thai Restaurant” in Hardie Street without the prior written permission of the District Licensing Agency Inspector, or this Authority. Mr Panpayap’s command of the English language and the conviction has rendered him in our view unsuitable to hold a General Manager’s Certificate enabling him to run a busy inner city bar. Provided he gave an undertaking that he would only use the certificate for running of this particular licensed premises, then it may well be that the application could be granted in due course.

[7] We would also require an undertaking from Mr Panpayap that in the event of a General Manager’s Certificate being granted, an English speaking member of staff would be available at all times when liquor was being sold, and when Mr Panpayap was the duty manager.

[8] If after 12 months there are no other reported incidents, and if the above undertakings have been signed, we would propose to grant the application on the papers.

[9] That leaves at issue the question of whether or not Mr Panpayap might be appointed from time to time as a temporary manager. We understand there have been no notices of appointment up until now. If a notice is filed it will be up to the Police to make a decision as to whether or not to oppose such a request.

[10] The issue may well be the length of the period of time when Mr Panpayap was to be appointed, and the reason for the appointment.

[11] For the reasons we have given therefore, this application is adjourned for a period of 12 months.

DATED at WELLINGTON this 7th day of April 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Panpayap.doc(afw)