Shortland, re [2003] NZLLA 228 (16 April 2003)

New Zealand Liquor Licensing Authority

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Shortland, re [2003] NZLLA 228 (16 April 2003)

Last Updated: 2 March 2010

Decision No. PH 228/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by LINDA GIRVAN SHORTLAND 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 PALMERSTON NORTH on 1 April 2003

APPEARANCES

Miss L G Shortland – applicant
Mr R McEwan – Palmerston North District Licensing Agency Inspector – to assist
Sergeant D Matheson – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] In a decision Deejay Enterprises Limited LLA 531 - 532/97 the Authority stated:

"The guiding hand or hands-on operator of any company or the potential holder of a General Manager’s Certificate now receive greater scrutiny from both the Police and other reporting agencies. Character and reputation are closely examined. The law and human desires of patrons frequently tug in different directions. The Police cannot be everywhere. Little but a licensee’s or manager’s character and suitability may stand between upholding the law and turning a blind eye. Self imposed standards in accordance with the law must be set by licensees and holders of General Manager’s Certificates who control and manage licensed premises."

[2] Against that background, we turn to consider an application for a General Manager’s Certificate. The applicant in this case is Linda Girvan Shortland. Miss Shortland is a mature woman who has now been working in the hospitality industry for a little under two years. She started as a bar person at premises known as “The Grand Bar and Casino” where she worked up to the role of duty manager, while being supervised.

[3] At the time of her application, Miss Shortland had received a certificate of attainment from Liquor Industry Licensing Advisors Limited. When she made her application, she disclosed that she had a conviction for driving under the influence.
[4] The Police check revealed that there were in fact three such incidents. The issue before the Authority is to balance the convictions for driving with excessive breath or blood alcohol, against the profound impact that Mr Kent has made upon us when he took the trouble to give evidence before the Authority in support of the application.

[5] Miss Shortland received her first conviction in 1986. The charge was driving with excessive breath alcohol content, and the level recorded was 650 micrograms of alcohol per litre of breath. She was convicted, fined and disqualified. The second conviction was recorded four and a half years ago in the District Court at Palmerston North. On 1 September 1998, Miss Shortland was convicted of driving with excessive breath alcohol content. The level on that occasion was 993 micrograms of alcohol per litre of breath. Miss Shortland was sentenced to community service and disqualified from driving for 10 months. It will be noted that the level was extremely high.

[6] On 23 October 2001, Miss Shortland was apprehended for the third time, and appeared in the Palmerston North District Court on 6 December 2001. She was fined and disqualified and a final warning was imposed on her record. The level on that occasion was 721 micrograms of alcohol per litre of breath.

[7] Miss Shortland has given evidence before us. She believes that she has no difficulty with liquor abuse. She certainly is more aware of the potential problems that liquor can cause. The conviction itself has had an impact on her working capacity.

[8] The convictions are one of five criteria which must be considered by the Authority under s.121 of the Act. Miss Shortland fulfils the majority of the criteria. The concern of the Authority is with this potential for abuse of liquor, and the Authority’s requirement by s.4(2) of the Act to exercise it’s jurisdiction in a manner that is most likely to promote the object of the Act.

[9] As mentioned earlier Mr Kent is the general manager of the “Cobb & Co” group which has four licensed premises in Palmerston North, and which has a staff of 119. Mr Kent has had a General Manager’s Certificate since 1987. For 22 years he has either been managing hotels or employing staff. He stated that he would not have appeared before the Authority unless he was confident that Miss Shortland would not let him down. It was his view that he would like to have the opportunity to give Miss Shortland a chance of assuming the responsibility of managing licensed premises in an unsupervised capacity.

[10] We have taken time to think about this matter. Our main concern is that if we grant this application, (notwithstanding the comments made by Mr Kent), we would in our view be reducing the standards that we are trying to set to ensure that licensed premises are run by people who have reasonably unblemished personal lives, and are therefore able to set an example to others.

[11] We do not believe that at this time Miss Shortland has achieved that high standard. After taking into account the previous decisions of the Authority, including the guidelines that are suggested in Osborne’s case, LLA 2388/95, a five year period has been suggested whereby applicants show that they can be conviction free. In Miss Shortland’s case we think that is too severe, particularly in the light of the recommendations from Mr Kent.

[12] We do believe however that a period of three years should elapse from the last offending. In other words we are talking about 18 months from today. If Miss Shortland is able to show that she has been conviction free during that period of time, then we believe that any further application could be made with confidence. In the meantime we regretfully find that we must decline the application.

DATED at WELLINGTON this 16th day of April 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Shortland.doc(afw)