Lim v Cruickshank [2003] NZLLA 527 (31 July 2003)

Last Updated: 2 October 2010

Decision No. PH 527/2003

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 General Manager’s Certificate number GM 005/195/2002 issued to GIHUN LIM

BETWEEN ANDREW BRYAN CRUICKSHANK
(Police Officer of Takapuna)

Applicant

AND GIHUN LIM

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 14 July 2003

APPEARANCES

Constable A B Cruickshank – NZ Police - applicant
Mr G H Lim - respondent
Mrs P M Cudby – North Shore District Licensing Agency – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application for the cancellation of a General Manager’s Certificate issued to Gihun Lim. The application is brought by Constable Andrew Bryan Cruickshank who is the North Shore Police Liquor Licensing Officer. The ground for the application is that the conduct of the manager is such as to show that he is not a suitable person to hold the certificate. The application was made because Mr Lim was convicted in the North Shore District Court on 14 October 2002 for driving with an excessive breath alcohol content. The level was shown to be 1220 micrograms of alcohol per litre of breath which will be noted as being over three times the allowable limit. Mr Lim was convicted and fined $1,000 with costs and disqualified for a period of 11 months.

[2] The facts show that around about 11 pm on Friday 4 October 2002 Mr Lim was driving his motorcar in Glenfield. He approached traffic lights at an intersection and stopped. He then fell asleep with his head on the steering wheel. The vehicle was therefore in the centre of the eastbound lane, and obstructing the traffic flow. Mr Lim was discovered by a marked Police vehicle. Eventually he returned a positive result of 1220 micrograms of alcohol per litre of breath. Mr Lim was a first offender and it could be said that this was an isolated event. It is quite clear that the ground for the application has been established on those facts, indeed Mr Lim has acknowledged that he acted quite irresponsibly. He had some concern with the suggestion made by the Constable that he was a danger to himself and a menace to other motorists on the road at that time. The issue of course is that one does not know what Mr Lim would have done once he had woken up.

[3] Mr Lim has explained that he obtained his General Manager’s Certificate on or about 19 August 2002. At that time he and his wife were negotiating to purchase a new business known as "Hiashi Japanese Restaurant”. Mr Lim explained that the take-over date was 19 August 2002. Renovations were expected to take two weeks but in fact took two months. Mr Lim was placed under extreme stress as he was paying the rent in the meantime. In October he was with a friend who was sympathetic to his situation. It is clear that for a period of two hours he and his friend consumed a large amount of Soju. Mr Lim said that he was well aware of the importance of a manager controlling the drinking habits of the patrons on the premises. He pointed out that there has never been one incident since the premises began operating, involving liquor abuse issues. He asked that the Authority not cancel his General Manager’s Certificate, but enable him to continue to help to operate the business. He referred to the stress which would be placed on his wife if the manager's certificate was cancelled.

[4] Mr Lim indicated that he had given up drinking altogether. He said that the incident had caused him to look at his drinking, and as a consequence he had decided not to drink any further. In those circumstances, and in view of the fact there were no other liquor abuse incidents relating to the premises, we are prepared to make an order for suspension of the manager's certificate rather than cancellation.

[5] We accept that Mr Lim has learned a valuable lesson. As the Constable has pointed out, the standards of managers has continually been raised. The expectations of general managers are that they will be persons who will set examples to their patrons, will ensure their safety, and they will obey the law. Mr Lim did not measure up to those expectations. He let himself down due to the stress of getting his restaurant into an operational status.

[6] We believe it is desirable to make orders for suspension not only to deter Mr Lim from further similar type of liquor abuse, but as an indication of the risk associated for any manager of losing one’s General Manager’s Certificate if he or she becomes involved in any abuse of liquor incident. Because the General Manager’s Certificate is due to be renewed on 19 August next the decision of this Authority is to suspend manager's certificate number GM 005/195/2002 issued to Gihun Lim for a period of three months from 19 August 2003.

DATED at WELLINGTON this 31st day of July 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Lim.doc(nl)