Condon, re [2003] NZLLA 30 (31 January 2003)

New Zealand Liquor Licensing Authority

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Condon, re [2003] NZLLA 30 (31 January 2003)

Last Updated: 16 February 2010

Decision No. PH 030/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by ROBERT JOHN CONDON 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 Crookson

HEARING at TIMARU on 27 January 2003

APPEARANCES

Mr R J Condon – applicant
Mr P C James – Timaru District Licensing Agency Inspector – in opposition
Sergeant M S Lowrey – New Zealand Police – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] When Parliament passed the Sale of Liquor Amendment Act 1999, it amended s.115(1) to emphasise the fact that a manager must be on duty at all times when liquor was being sold or supplied. The effect of the Amendment was that in the future, all managers would be responsible for ensuring that the premises complied not only with the Act, but also with the conditions of the licence.

[2] The reasoning behind the Amendment was to encourage the drive to raise the standards of those charged with the responsibility of supplying liquor to the public. The expectation was that the management of licensed premises would be conducted by experienced persons who were committed to supervising the sale and supply of liquor, and concerned to give new meaning to the term ‘host responsibility’. The ultimate aim was to achieve the Act’s objective of reducing the incidence of liquor abuse.

[3] The standard expected of managers is perhaps best described in Deejay Enterprises Ltd LLA 531/97 – 532/97 where it was said:

“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 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.”

[4] In this case, the applicant first made an application for a General Manager’s Certificate in 2000. The hearing was commenced on 9 October 2000, and resumed on 28 February 2001, after certain criminal charges had been heard and disposed of. In a reserved decision dated 28 March 2001, the Authority refused the application. Mr Condon appealed the decision to the High Court. On 10 May 2001, His Honour Justice McGechan dismissed the appeal. Effectively the decision rested on the ‘suitability’ of Mr Condon to hold a General Manager’s Certificate. The major concern at that time was his recent conduct, and his list of previous criminal offences.

[5] On 30 August 2002, Mr Condon made a further application for a manager’s certificate. The application drew adverse reports from the Police, and the District Licensing Agency Inspector. Both reports were based on different grounds. The enforcement agencies were concerned that Mr Condon had little recent licensing experience, and no current employment in the hospitality industry. Because of the passage of time, the previous convictions were not considered to be as great an impediment to the granting of the manager’s certificate as previously. As a result of the adverse reports being filed, the matter was set down for a public hearing.

The Application

[6] In 1998, Mr Condon and his then partner, Ms Melissa Jane, decided to establish an inner city nightclub. Because of the concerns about Mr Condon’s suitability, the on-licence was issued to Ms Jane on 3 March 2000. The business known as “The Odyssey Bar” proved to be quite successful, and its management drew complimentary comments from the Police. As was stated in the earlier decision of the Authority:

“Nevertheless there is evidence before the Authority which indicate a measure of support for the operation of licensed premises in Ms Jane’s name. We find that Mr Condon exercised a measure of control over those licensed premises which in formal terms had been controlled by Ms Jane alone, the business being described by Mr Condon as a partnership.”

[7] Unfortunately there was a breakdown in the relationship, and in the management of the licensed premises. The domestic situation led to a period of instability, which impacted adversely on the business. Mr Condon became involved in further criminal proceedings arising from the relationship breakdown. These culminated in convictions for breaches of protection orders, and for assault. The last offending occurred in May 2001. Mr Condon explained at the hearing why he acted in such an ‘unprofessional’ way.

[8] As a consequence of the domestic breakdown, Mr Condon appears to have lost any equity in, or control over, the business. He retains a strong wish to issue proceedings against the current owners, based on his ‘ownership’ of the nightclub’s design and concept. Such proceedings have yet to be filed. He seemed to believe that if he were to be granted a manager’s certificate this ‘privilege’ would in some way, add authenticity to such a claim. Mr Condon is currently unemployed although in February 2003 he intends to return to study at the Aoraki Polytechnic to complete studies for the New Zealand Business Diploma.

[9] Mr Condon stated that he had no immediate employment plans because of his “continuing litigation and study responsibility”. He noted that a requirement to list future employment was not listed as one of the criteria in the Act. Mr Condon set out to refute some of the allegations that had been levelled at him in the previous hearing. He believes that to a large extent he was a victim during the troubled times between 2000 and 2001. He argued that the adverse publicity which followed the convictions, and the publicity which followed the previous refusal to grant a manager’s certificate, would make potential employers wary unless he was able to show that he had been approved as a suitable manager by the Authority. As we explained at the time, we take the view that this current application must be treated as a ‘greenfields’ application, and dealt with solely on its own merits.

[10] When Mr Condon filed the current application, he described himself as a student. In answer to the form’s question about recent experience, he stated that he had “designed, constructed and established the original Odyssey Entertainment Bar, including design, concept, security and staff training.” He confirmed that he had completed a course of training regarding sale of liquor managerial responsibilities with Aoraki Polytechnic on 6 July 2000, prior to the first application being filed. No supporting references from employers were filed. In answer to the question, “Does the applicant intend at this time to be the manager of any particular licensed premises?”, Mr Condon wrote “no”.

The District Licensing Agency Report

[11] Mr P C James is a District Licensing Agency Inspector for Timaru. He noted that during an interview with the applicant, Mr Condon had explained that he had no immediate employment proposals, but needed a General Manager’s Certificate, to assist him in legal matters that were forthcoming in regard to a claim in respect of “The Odyssey Bar”. He also stated that he needed to have a General Manager’s Certificate in his CV for his future employment prospects. Mr James acknowledged that Mr Condon had adequate experience in the conduct of licensed premises, albeit not recent. He said that Mr Condon was aware of current legislative requirements.

[12] Mr James objected to the issue of a General Manager’s Certificate on the grounds that Mr Condon was not employed in the industry and appeared to have no immediate intention of becoming so employed. In other words he appeared to be seeking a manager’s certificate for the wrong reasons.

The Police Opposition

[13] Sergeant G A McCrostie carries the responsibility for liquor licensing within the Timaru District Local Authority. He acknowledged that Mr Condon’s most recent convictions related to the period of instability following the break up of the relationship with his business partner. He stated:

“Police were prepared to consider setting those convictions aside if the applicant met all other requirements in terms of the application”.

[14] In other words he appeared to accept that because of the lapse of time the convictions were of less relevance. The Sergeant confirmed that at a meeting with Mr Condon and Mr James it was clearly spelt out that Mr Condon would have to state where he would be employed as manager. He noted that Mr Condon had an expectation that he could be appointed without such a requirement. He also noted that Mr Condon has spent some time out of the hospitality industry.

Decision

[15] Any consideration of the grant or refusal of a manager’s certificate is governed by the criteria contained in s.121 of the Act. 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;

(e) Any matters dealt with in any report made under s.119 of the Act”.

[16] In this case, the relevant criteria is s.121(c), and to a lesser extent (a) of the Act. On the evidence before the Authority, the applicant has had no recent experience in managing any licensed premises. He last worked at “The Odyssey Bar” about November 2001. At that time he was not managing the premises in any legal capacity, nor did he appear to have been directly involved in the sale and supply of liquor. His only experience in the industry has been gained in setting up “The Odyssey Bar”. In our view, the lack of experience, in particular recent experience in managing licensed premises, is critical to the issue of overall suitability.

[17] The principles governing the grant of manager’s certificates have been stated by this Authority in the past. They include M L Sutton LLA 2590/95:

“Although the parliamentary draftsmen have used different words we have to be satisfied that the holder of a General Manager’s Certificate is a suitable person to have sole charge of licensed premises.”

[18] The Authority has been confronted by a number of applications over the past eighteen months, where applicants have completed their training and consequently sought a manager’s certificate so that it could form part of their ‘curriculum vitae’. Alternatively, they wished to be granted a certificate as a resource that might be used in the future. Their arguments have been that with a General Manager’s Certificate, they stand a better chance of gaining employment. Of course a manager’s certificate enables a person to have sole control over the sale of liquor in a busy inner city bar, or a nightclub, or a supermarket. It is our view that without worthwhile recent experience, there is no way that a person’s knowledge can be tested and monitored in a practical setting.

[19] We have not been prepared to grant certificates where there are no prospects of worthwhile employment in the hospitality industry. We have suggested to such applicants that if they gain experience and have the committed support of an employer licensee, then a certificate will be issued. In some cases we have been prepared to ignore recent convictions or other impediments where an applicant has received ‘on the job’ training and has the full support of his or her employer.

[20] To issue a certificate without the benefit of experience, is akin to issuing a work reference when the referee is unaware of the person’s ability. In this case, Mr Condon seeks some form of authenticity, so that he can pursue a legal challenge over his former business. We believe that any such litigation has no relevance whatsoever to the issue of a General Manager’s Certificate, and that he is seeking a certificate for the wrong reasons.

[21] In this particular case, Mr Condon seeks some form of exemption from the Authority’s expectations. We are not prepared to make an exception for him, especially as he received adequate notice from the enforcement agencies that his experience and ability to work within the industry were important factors in the grant or refusal of a certificate. We are unable to accept the suggestion that work in the industry such as a doorman’s or barman’s job would not initially be offered without a manager’s certificate issued by the Authority. As with many other applicants, Mr Condon would again need to work his way up in the industry. It is only after gaining such experience and having a competent licensee ready and willing to support him in the sole running of licensed premises, that we would be prepared to grant a General Manager’s Certificate.

[22] For the reasons we have tried to articulate, it is our view that the applicant has been unable to establish his suitability to be awarded the responsibility of running a public bar in an unsupervised capacity, at this time.

[23] The application is accordingly refused.

DATED at WELLINGTON this 31st day of January 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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