Parkes, re [2003] NZLLA 232 (16 April 2003)

New Zealand Liquor Licensing Authority

[Index] [Search] [Download] [Help]

---

Parkes, re [2003] NZLLA 232 (16 April 2003)

Last Updated: 3 March 2010

Decision No. PH 232/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by GARY DOUGLAS PARKES 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

Mr G D Parkes – 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] This is an application by Gary Douglas Parkes for a General Manager’s Certificate. In considering this application, the Authority is governed by s.121 of the Act. This section sets out the criteria to which the Authority must have regard in considering the application. There are five criteria and they 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; and
• [e] Any matters dealt with in any report made under s.119.
  

[2] The relevant sections so far as this application is concerned are (b) and (e). That is the convictions recorded against the applicant, and the adverse reports received from the Police and the District Licensing Agency Inspector.

[3] Mr Parkes has correctly submitted that his character and reputation, and experience and training fit in with the job in hand. He has produced witnesses and references as to his integrity. He has been involved in helping to run on a part time basis “Manawatu Wings Limited”. This is a company owned and operated by the Manawatu Districts Aero Club. It has an on-licence and operates as a functions centre.

[4] We understand that for the majority of occasions persons employed with manager’s certificates by “Manawatu Wings Limited” act in a voluntary capacity. There have been character witnesses from Mr Pat Debney and Mr David Lees. There is no question that notwithstanding his convictions, Mr Parke’s is well liked and well known in the community. He has the requisite experience and he has produced a certificate that he had completed on an approved course under the Sale of Liquor Act and host responsibility.

[5] He asks the Authority to balance these factors against his three convictions for driving with an excessive breath alcohol content. These convictions commenced in 1987. In the District Court in Hawera Mr Parkes was convicted and fined for driving with a level of 700 micrograms of alcohol per litre of breath.

[6] In 1991 some four years later, he was again convicted with a level of 600 micrograms of alcohol per litre of breath. He said there were extenuating circumstances on both occasions. However on 2 February 2002, he was again apprehended and a month later he was convicted in the District Court at Palmerston North and fined and disqualified. The level on that occasion was 600 micrograms of alcohol per litre of breath.

[7] In 1999, Parliament increased the penalty for driving with excessive breath alcohol (on a third or more occasion) from three months to two years, to try and do something about the road toll, and the tendency by so many citizens to binge drink and then drive.

[8] It may well be that these convictions would not be looked at with too much concern by other agencies and other clubs which do not hold licences under the Act. Mr Parkes could be welcome anywhere. The issue is, is he a person in whom this Authority would have confidence in his ability to run on his own a busy inner city bar?

[9] The obtaining of the General Manager’s Certificate is different to most other vocational attainments. This is because the object of the Act as described in s.4 is to establish a reasonable system of control over the sale and supply of liquor to the public, with the aim of contributing to the reduction of liquor abuse so far as that can be achieved by legislative means.

[10] Section 4(2) requires us, and every agency and any other Court to exercise its jurisdiction, powers and discretions under the Act in a manner that is most likely to promote the object of the Act. In other words, every decision we make should be made with the aim of reducing the incidence of liquor abuse.

[11] Mr Parkes had drug and alcohol counselling in 1991. When he was again convicted in 2002 he went back to his books. He did not tell us that he had stopped drinking, nor did he indicate that he had taken any up-to-date treatment. He is asking us to grant him the responsibility of conducting licensed premises on his own. The emphasis for which must be on the reduction of liquor abuse.

[12] The position is that from time to time the Authority has made various statements about its discretion in granting managers’ certificates. One of these was made in Osborne LLA 2388/95 where the Authority stated:

“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.”

[13] In a recent decision of the Authority, a certificated manager had been convicted of driving with an excessive breath alcohol content. His employer came to the Court to explain that he was a very good employee and a good bar manager. The suggestion was that if people work well then this Authority should ignore the fact that they abuse liquor from time to time. We are not prepared to do that.

[14] On that occasion the manager’s certificate was suspended for six weeks because the conviction was his third.

[15] We accept that Mr Parkes has produced a good case, but in our view he has not satisfied us as to his suitability at this time. It may be that if he forsook drinking altogether, or it may be that if he had taken treatment, we might have looked at the matter differently, and preferred the positive factors to the negative ones. But for us to appoint a person with three convictions, the most recent of which was only last year to a position of such responsibility, would create a precedent which in our view would destroy the attempts that have been made to increase the standards of managers.

[16] When Parliament altered the Act on 1 April 2000 it provided in s.115 that at all times when liquor is being sold or supplied to the public on any licensed premises, a manager must be on duty and responsible for compliance with this Act and the conditions of the licence. All the responsibility for any licensed premises in this country rests on managers. The expectation from Parliament is that these people will be persons who will know the law and be persons with high personal aspirations and standards. In our view Mr Parkes has been unable to achieve that rather high goal today.

[17] We find ourselves in the position that we will have to refuse the application. We have held in the past that no such findings should be infinite. There is every reason to encourage Mr Parkes with his history of community service to further that record. We suggest that in this case a period of three years should elapse from the date of the last offending, unless of course Mr Parkes is able to show that any such offending will not be repeated. The only way that can be done is for him to successfully complete a rehabilitation programme.

[18] All other things being equal, we would be happy for him to make a further application after he has shown that he can last for three years without any similar convictions.

[19] The application for those reasons is declined.

DATED at WELLINGTON this 16th day of April 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Parkes.doc(afw)