Kain, re [2003] NZLLA 369 (27 May 2003)

New Zealand Liquor Licensing Authority

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Kain, re [2003] NZLLA 369 (27 May 2003)

Last Updated: 1 April 2010

Decision No. PH 369/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by GEORGE HARRY COUPER KAIN 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 CHRISTCHURCH on 12 May 2003

APPEARANCES

Mr G H C Kain - applicant
Mr M Ferguson - Christchurch District Licensing Agency Inspector - in opposition
Sergeant J F Armstrong - NZ Police - in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by George Harry Couper Kain for the renewal of his General Manager’s Certificate.

[2] Mr Kain first received his certificate on 26 February 1998. At that time he had a conviction for driving with excessive blood alcohol. The conviction was recorded on 28 February 1996. On that occasion, the level of blood/alcohol was 129 milligrams of alcohol per 100 millilitres of blood. Clearly the Agency decided that it was an isolated event showing no pattern of offending, and the manager’s certificate was granted.

[3] Mr Kain then renewed his certificate on or about 26 February 1999. It was renewed for three years.

[4] He then made application for the further renewal of his certificate. The application form asked whether he had been convicted since the certificate was last renewed. He was not clear about the date and left it blank.

[5] Eventually it was discovered that on 21 March 1999, at 2.30 am, Mr Kain was stopped, and produced an evidential breath test of 533 micrograms of alcohol per litre of breath. This was later converted to a blood alcohol concentration of 138 milligrams of alcohol per 100 millilitres of blood.

[6] Because the conviction was incurred shortly after the renewal date, there was opposition filed by both the Police and District Licensing Agency Inspector.

[7] The Police took the view that it was up to Mr Kain to satisfy the Authority that he was suitable to continue to hold a General Manager’s Certificate.

[8] The Inspector noted that the Police, Crown Public Health and the Agency are all actively involved in the Sale of Liquor course, which is conducted as a training component when persons seek a manager’s certificate. The reasoning is to lift the standards in relation to managers as they now have the control over licensed premises.

[9] The expectations are that managers will be people who will uphold the law and set examples for their patrons.

[10] It should be reasonably clear to any holder of any General Manager’s Certificate that any offence involving potential liquor abuse will place that certificate at risk.

[11] The Authority has received evidence that the premises operated by Mr Kain, known as "Barcelona", are very well run. The emphasis is on food. As Mr Kain has pointed out, excessive abuse of alcohol is not tolerated.

[12] Mr Kain is the proprietor of this establishment. He employs up to 20 members of staff, a number of whom have a General Manager’s Certificate.

[13] We note that had an application been made under s.135 for the suspension of the manager’s certificate, a conviction of this nature would probably have resulted in a suspension of between one and three months.

[14] It seems to us that to refuse to renew a manager’s certificate on the basis of this conviction would be unreasonable. On the other hand, a pattern has started to emerge. Mr Kain has indicated that as far as he was concerned there were extenuating circumstances, and that there is no inherent problem with liquor abuse.

[15] We accept his word on that, but nevertheless adopt the proposal suggested by the Inspector. The manager’s certificate will be renewed but will be for a period of two years. This means that it will next fall due for renewal on 26 February 2004, which is an adequate reminder to Mr Kain of the need for the standards of the holders of General Manager’s Certificates to be maintained.

[16] The application for renewal is granted accordingly for two years.

DATED at WELLINGTON this 27th day of May 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Kain.doc (md)