Fraser, re [2003] NZLLA 453 (25 June 2003)

Last Updated: 18 April 2010

Decision No. PH 453/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by CLARK JAMES FRASER 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 HAMILTON on 30 May 2003

APPEARANCES

Mr C J Fraser - applicant
Mr P Challis – Matamata Piako District Licensing Agency Inspector – to assist
Sergeant F A Grace – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Clark James Fraser for the renewal of his General Manager’s Certificate. The criteria to which this Authority must have regard in considering the application are set out 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 s.124 of the Act.

[2] Mr Fraser has held a manager's certificate since 4 May 2001. The application is the first such application for renewal and is considered by the Authority to be the most important. The reason is that it follows the normal probationary one year period during which the performance and conduct of the applicant can be monitored. If it is found wanting then the Authority is able to refuse the application or to grant it, but on restricted terms.

[3] Mr Fraser obtained his manager's certificate so he could help run a café in Matamata. This café is a licensed café. There are some 12 people who are employed and from the Police perspective there are no issues about the way in which Mr Fraser has managed the business. More recently he purchased the share of his partner and is now the sole proprietor.

[4] The issues relate to a conviction recorded against Mr Fraser since the certificate was issued and, to some extent, the adverse report made by the Police about an apprehension for alleged drinking prior to driving. Balancing the adverse report are two references produced by Mr Fraser from a Mr Colin Reid and a Mr A G Boyce. Mr Fraser is a mature married man with a family. He is held in high regard, certainly by Mr Reid and Mr Boyce.

[5] There were two issues in this case. The first relates to an apprehension of Mr Fraser at about 4 o’clock in the morning of Saturday 19 January 2002. Mr Fraser was stopped as he was driving home and a breath test procedure showed that his breath was found to contain 889 micrograms of alcohol per litre of breath. Mr Fraser said it had been a long day at work and he acknowledged that he had had at least three handles of beer at work. The charge was in fact withdrawn because the apprehending Constable left the country. Nevertheless Mr Fraser has not taken issue with the fact that he had been drinking. He did say that he was working long hours, obviously he had let his guard down. He said that the business has a zero tolerance policy regarding staff drinking on the job or while on duty. His wife says that he doesn’t drink much at home. He denies that he has a problem with the abuse of liquor. He does have convictions but the previous one was in 1981 and prior to that, there was a conviction in 1979.

[6] It is a fact that any manager who is apprehended for a charge which involves the abuse of liquor will place his certificate at risk. In the past if applications have been brought for offences of this nature, for suspension of manager's certificates, we have suspended such certificates for anything up to three months. That is in our view a more reasonable way of dealing with an issue such as this rather than the refusal to renew a manager's certificate which means that a manager might have to wait for up to a year before he or she can reapply.

[7] The second issue involves a former employee by the name of Steven Grant Sines. Mrs Fraser gave evidence that there were problems involving his employment at the café. While not going into the details it became apparent that Mr Sines was no longer regarded as a valuable employee and his services were terminated. According to the Frasers this resulted in a series of threats to the Fraser family generally, but Mrs Fraser in particular. In the view of Mrs Fraser, her husband did what any husband would be expected to do. He got two friends and he went round to visit Mr Sines. This is apparent from his statement that he was angry and he was frustrated and he took some friends because they are “not boys to mess around with”. It is not totally clear what happened at the address, but clearly Mr Sines was intimidated and there was damage done. As a consequence Mr Fraser was convicted on 4 February 2003. He was ordered to pay $200 of reparation and to do 90 hours of community work.

[8] The Authority has to balance that incident with the fact that Mr Fraser has generally been out of trouble for 20 years. He is running what appears to be a worthwhile business and he is a person of some maturity. Indeed he impressed the Authority sufficiently for us to take the view, by way of a balancing exercise, that he should have the opportunity to continue in his role as a general manager. We accept the Police position firstly that persons who drive on roads after drinking are a menace and that the Police regard such a matter very seriously. We accept also the suggestion that holding a manager's certificate is a privilege and that the standards of managers are continually being raised. In view of the fact that it is they alone who have the responsibility of ensuring that the law in relation to the abuse of liquor is obeyed, managers are expected to set examples and it is clear that on both occasions Mr Fraser was not doing so.

[9] He has given an explanation for the latest event and in the circumstances it is the decision of the Authority to grant the renewal but for only two years. This means that Mr Fraser will have to reapply for the renewal of his certificate prior to May of next year. Mr Fraser therefore should be under no misapprehension that if there were further incidents of a similar nature then another renewal would be most unlikely.

[10] The renewal application is granted for two years.

DATED at WELLINGTON this 25th day of June 2003

B M Holmes
Deputy Secretary

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