Cruickshank v Illingworth [2003] NZLLA 408 (12 June 2003)

Last Updated: 6 April 2010

Decision No. PH 408/2003 –
PH 409/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act for cancellation of Club Manager’s Certificate number CM 204/99 issued to WILLIAM LOUIS ILLINGWORTH

BETWEEN ANDREW BRYAN CRUICKSHANK

(Police Officer of Takapuna)

Applicant

AND WILLIAM LOUIS ILLINGWORTH

Respondent

AND

IN THE MATTER of an application by WILLIAM
LOUIS ILLINGWORTH

pursuant to s.123 of the Act for renewal of a Club Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at AUCKLAND on 28 May 2003

APPEARANCES

Mr J H Wiles – for respondent and applicant for renewal
Constable A B Cruickshank – applicant
Mrs P M Cudby – North Shore District Licensing Agency Inspector - to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are two applications before the Authority for determination.

[2] The first application is brought by Constable Andrew Bryan Cruickshank, the North Shore Police Liquor Licensing Officer. The application seeks the cancellation of a Club Manager’s Certificate issued to William Louis Illingworth. By agreement between the parties, it is accepted that the application may also result in a suspension of the certificate.

[3] The ground for the application to cancel the Club Manager’s Certificate is:

That the conduct of the manager is such as to show that he is not a suitable person to hold the certificate.

[4] The factual allegation supporting the application, is that while being the holder of a Club Manager’s Certificate, Mr Illingworth was convicted of driving a motor vehicle while the proportion of alcohol in his breath exceeded the statutory limit.

[5] During the hearing, evidence was also lead concerning an allegation that Mr Illingworth had supplied liquor at a time when the club he was managing, was required to be closed. There were also allegations that he was drinking while on duty.

[6] The second matter to be determined is an opposed application by Mr W L Illingworth for the renewal of his Club Manager’s Certificate. The application for renewal drew adverse reports from the Police and the District Licensing Agency Inspector, based on the conviction for drink driving referred to above. The other issues referred to in paragraph [5] above were also raised in relation to the renewal application.

[7] Mr J H Wiles argued that the cancellation application has had a significant impact on Mr Illingworth and the club where he works. He said that Mr Illingworth was very embarrassed by the proceedings. Mr Wiles submitted therefore, that it was undesirable for the manager’s certificate to be suspended. It was also contended that there was a number of mitigating factors, which should persuade the Authority to make an exception in this case, and not impose any sanction. Alternatively he asked for the opportunity for Mr Illingworth to see out the club’s soccer season, before any action was taken.

The Background Facts

[8] Mr Illingworth has held a Club Manager’s Certificate since 4 May 1999. For the last three years he has been employed on a full time basis, as the bar manager of the Birkenhead United Football & Sports Club Incorporated. The “Birkenhead United Soccer Club” (the Club) was said to be one of the busiest soccer clubs in the country.

[9] We heard evidence from the Club President, and the Club Captain, that Mr Illingworth has carried out his duties to a very high standard. His efforts have contributed to the re-establishment of the Club’s financial stability. The President confirmed that since the incidents referred to above, the Club now has an alcohol zero tolerance policy for all staff while they are on duty. The Club Captain stated during the many times he has been at the Club premises, he had never seen Mr Illingworth consuming liquor while working, or in a state of intoxication.

[10] On Saturday 9 March 2002, at about 1.00 am, Mr Illingworth was stopped at a check point operation. He had been drinking at home with two friends, and was in the process of driving them home. He acknowledged that he had been drinking at the Club during the previous day, and that he had worked there until midnight. His breath was found to contain 770 micrograms of alcohol per litre of breath. Mr Illingworth was subsequently convicted in the North Shore District Court on 21 March 2002, and fined and disqualified. He had a previous conviction although this was incurred in 1974. Mr Illingworth denied that he had any problem with the use or abuse of alcohol.

[11] At about this time the Police received anonymous information that Mr Illingworth was selling liquor outside the authorised hours. The Club is allowed to sell liquor to its members between 6.00 pm and 10.00 pm on Mondays to Thursdays. It has more relaxed hours in the weekend.

[12] Just prior to 11.00 pm on Thursday 11 April 2002, a Team Policing Unit visited the Club’s premises. Mr Illingworth was observed serving liquor to a patron. When questioned, Mr Illingworth stated that he thought the licence was until 10.30 pm. Mr Illingworth had been drinking. He acknowledged that over the previous five hours, he had consumed five 12 oz beers. He said that the members had been reluctant to leave the bar as the World Darts Championship was being televised. Mr Illingworth acknowledged supplying liquor after hours but said that it was a free drink to one of the members who had volunteered to help clean up.

[13] As a result of the incident, an urgent meeting was arranged between Sergeant Cruickshank, the District Licensing Agency Inspector, Mr Illingworth, the Club President, and the Club’s legal representative. Since the meeting there has been no other reported incidents.

Decision

[14] The criteria to be considered on the renewal of a manager’s certificate are contained in s.126 of the Act. These criteria are:

(a) The character and reputation of the applicant

(b) Any convictions recorded against the applicant since the certificate was issued or last renewed

(c) The manner in which the manager has managed the sale and supply of liquor pursuant to the licence with the aim of contributing to the reduction of liquor abuse

(d) Any matters dealt with in any report made under section 124 of this Act.

[15] In this case, there has been one conviction recorded against Mr Illingworth since his Club Manager’s Certificate was last renewed. In addition, there have been two incidents where he has been drinking while working as the manager. Finally, there is the incident of supplying liquor after hours. The manner in which the sale and supply of liquor has been managed by Mr Illingworth is a cause of some concern.

[16] On the other hand, it is quite clear that both Mr Illingworth and the Club have received a timely “wake up” call. Certain measures have been put in place. We are reasonable confident that the standards will not be allowed to slip again. In the light of the actions taken and the Club’s support for Mr Illingworth, we believe that to refuse the application for renewal, would be unreasonable and oppressive.

[17] Nevertheless, it is our view that Mr Illingworth’s conduct should receive some sanction from the Authority. Bearing in mind that we intend to suspend the certificate, we have decided that the application for renewal will be granted but for two years only. This means that Mr Illingworth’s conduct of the premises will come before the scrutiny of the reporting agencies a year earlier than might otherwise have been the case.

[18] The ground for the application for suspension of the certificate has been established. Indeed there is more than one indication of unsuitability. We have decided to deal with both matters on a “totality” basis. In addition to the reduced period of renewal, we believe that it is desirable to make a suspension order. Any manager who has been convicted of any charge involving the abuse of liquor has placed his or her certificate at risk. When combined with the other allegations, we believe that a period of six weeks is appropriate.

[19] Mr Wiles was concerned that any suspension may create problems for the Club during its busy time of the season. We were not persuaded that the suspension of the certificate would have such an impact. Nevertheless, we have allowed a longer period than usual before the suspension takes place.

[20] For the reasons given we make the following rulings:

(a) Club Manager’s Certificate number CM 204/99 issued to William Louis Illingworth is renewed for two years.

(b) Club Manager’s Certificate number CM 204/99 issued to William Louis Illingworth is suspended for six weeks from 14 July 2003.

DATED at WELLINGTON this 12th day of June 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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