MacFarlane, re [2003] NZLLA 236 (16 April 2003)

New Zealand Liquor Licensing Authority

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MacFarlane, re [2003] NZLLA 236 (16 April 2003)

Last Updated: 3 March 2010

Decision No. PH 236/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by JEANETTE APORENA MACFARLANE 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 31 March 2003

APPEARANCES

Mrs J A Macfarlane – applicant
Mrs C F Fouhy - Tararura District Licensing Agency Inspector – in opposition
Sergeant E G Fincham - NZ Police – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Jeanette Aporena MacFarlane for a General Manager’s Certificate. There are five criteria which must be considered by the Authority when dealing with an application of this type. These criteria 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] In this case Mrs MacFarlane has a long and extensive history with the hospitality industry. She has been involved one way or another with the sale and supply of liquor for some 25 years. She received a General Manager’s Certificate in 1997, but allowed this to elapse. Her daughter has taken over the “Club Hotel” at Pahiatua, and Mrs MacFarlane decided that it would be appropriate that she make a fresh application for a certificate so that she could assist from time to time with the running of the “Club Hotel”. An application was lodged approximately one year ago. Mrs MacFarlane lives in Rotorua, but travels to Pahiatua from time to time to assist her husband and her daughter with the running of that hotel.

[3] Mrs MacFarlane has been a licensee for four years in Rotorua, and would be well aware of the emphasis by the Sale of Liquor Act on the reduction of liquor abuse.

[4] When she made her application Mrs MacFarlane was interviewed by the District Licensing Agency Inspector. As would be expected she displayed a good knowledge of the Act, but indicated that she had recently been caught drinking and driving and was about to go to Court.

[5] The conviction list discloses that on 5 September 2002 at Rotorua Mrs MacFarlane was convicted of driving with an excessive blood alcohol content. The level on that occasion was 837 micrograms of alcohol per litre of breath. Mrs MacFarlane failed to disclose a conviction that occurred about 13 years ago on 18 July 1990. This conviction was also recorded in the District Court in Rotorua and was also for driving with an excessive breath alcohol content. It showed a level of 900 micrograms of alcohol per litre of breath.

[6] Clearly there is a pattern and clearly both levels would indicate that there could be a problem with the use or abuse of alcohol. This is a difficult balancing exercise for the Authority. On the one hand Mrs MacFarlane has 25 years in the industry. On the other, there are the convictions, and the need to raise the standards of managers. It is the managers who the Authority and Parliament look to to manage the business, and to ensure that there are no breaches either of the Act or the conditions of the licence.

[7] It is accepted that the conviction was not recorded at a time when Mrs MacFarlane was working as a manager. It is also accepted that had she been a manager, a s.135 application for suspension would have resulted in the suspension of her manager’s certificate for approximately two months.

[8] In the circumstances we are prepared to be more lenient with Mrs MacFarlane than might otherwise have been the case. We propose to adjourn this application for nine months. During that time Mrs MacFarlane may use the advantages of s.128 of the Act, and be appointed as a temporary manager. The adjournment is to enable Mrs MacFarlane to take some treatment and/or counselling involving potential liquor abuse. In other words she is prepared to call on the local community alcohol and drug service for an assessment. If there is no treatment recommended, then so be it. If on the other hand as a result of any assessment, some treatment is required the Authority would be happy to grant the application on completion of the treatment.

[9] In the end result we require a report from an Inspector either from the Pahiatua area or from Rotorua, confirming that this has taken place. If it has we may be well prepared to deal with the matter on the papers. If it has not, then a further public hearing will be called.

[10] The application is adjourned accordingly for nine months.

DATED at WELLINGTON this 16th day of April 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

MacFarlane.doc(afw)