Wiley, re [2003] NZLLA 262 (17 April 2003)

New Zealand Liquor Licensing Authority

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Wiley, re [2003] NZLLA 262 (17 April 2003)

Last Updated: 7 March 2010

Decision No. PH 262/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by GORDON JOHN WILEY pursuant to s.123 of the Act for renewal of 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 J Wiley – applicant
Mr R McEwan – Palmerston North District Licensing Agency Inspector – to assist
Sergeant D Mattheson - NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Gordon John Wiley for the renewal of his General Manager’s Certificate. Mr Wiley has had a General Manager’s Certificate for a considerable period of time, although currently his main occupation is as an Operations Sales Supervisor. He has over the recent years tended to use the General Manager’s Certificate on a part time basis. Mr Wiley is aged 47. He has used his manager’s certificate in helping out with the running of the “Shamrock Inn” which the Police have advised is a non problem premises at this time.

[2] When Mr Wiley made his application he was asked whether he had been convicted of any offence since the certificate was last renewed and he answered “no”. This was incorrect, and the Police quite properly have brought the omission to our attention. Mr Wiley has given evidence, and stated that he honestly believed that because he had been convicted for traffic offending that this was not a criminal offence, and therefore need not have been disclosed.

[3] This is not the first time we have heard this explanation. In the final analysis Mr Wiley is entitled to the benefit of the doubt. We have no reason to believe that he acted in any sinister or deliberate way in order to try and produce some form of misleading information. In other words, we do not see the omission as necessarily reflecting on his honesty and character.

[4] We turn then to the convictions themselves. On 11 May 2001, Mr Wiley had been watching a sporting contest. He had delivered somebody home, and was on his way back when he was stopped at a checkpoint. He did not think that he was over the allowable limit. It transpires that he had a breath alcohol level of 520 micrograms of alcohol per litre of breath. He was convicted about a month later. This is the only conviction recorded against him which involves potential abuse of liquor. He did have a conviction some four months later for driving while disqualified, and for that he was fined and disqualified.

[5] Mr Wiley seeks the renewal of his manager’s certificate. The Police and District Licensing Agency Inspector quite properly have suggested to us that if a manager is convicted of an offence which involves the abuse of alcohol then his certificate has been placed at risk.

[6] We have said in the past that it is more important that managers rather than ordinary citizens not be convicted of such an offence because of the responsibility which they carry to reduce the incidence of liquor abuse.

[7] There have also been decisions by the Authority in the past that isolated offending would call for a period of two years conviction free. In this case it is nearly two years since Mr Wiley was apprehended.

[8] In coming to a decision on this matter we have taken into account the fact that had an application been brought by the Police or the Agency Inspector for suspension of the manager’s certificate pursuant to s.135 of the Act, and had those enforcement agencies been aware of the convictions prior to the application for renewal, then the probability is that the manager’s certificate would have been suspended for between one and two months, taking into account the isolated nature of the offence. To some extent this application has been overtaken by time because of the fact that Mr Wiley has been conviction free for quite a period of time.

[9] Mr Wiley stated that the certificate forms part of his CV although the evidence shows that he has used it in the last 12 months. As far as the Authority is concerned Mr Wiley would need to demonstrate in any future application that he was using his manager’s certificate, otherwise it is unlikely that any future application would be opposed.

[10] In the meantime in balancing all factors as best we can, but in particular noting that the offending occurred on 11 May 2001 we have decided to grant the renewal.

[11] The application is granted accordingly for three years.

DATED at WELLINGTON this 17th day of April 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Wiley.doc(afw)