Tooth, re [2003] NZLLA 597 (26 August 2003)

Last Updated: 3 October 2010

Decision No. PH 597/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by KAREN LYDIA TOOTH pursuant to s.118 of the Act for 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 11 August 2003

APPEARANCES

Miss K L Tooth – applicant
Mr D W Sara – Auckland District Licensing Agency Inspector – in opposition
Mr R G Poole – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Karen Lydia Tooth for a Club Manager’s Certificate. When Miss Tooth filed her application she was employed at the Avondale RSA. She had completed a course of instruction conducted by Hospitality Management Consultants Limited. She was interviewed, and displayed a satisfactory knowledge of her legal responsibilities as a general manager.
[2] At the hearing, Miss Tooth produced a reference from the Avondale Returned Services Association indicating that she had joined the team in November 2001. Miss Tooth believes that is an error, and that she started working at the RSA in 1997. The reference was very positive. In addition we have heard from a member of the RSA, that Miss Tooth clearly made an impact while working there, and it was felt by management that she was deserving of a Club Manager’s Certificate.
[3] The evidence shows that Miss Tooth left the RSA approximately two months ago, and now has a job full-time as a caregiver. On the other hand, Miss Tooth has indicated that if the certificate was granted, she would be able to obtain work back at the RSA.
[4] The general evidence from Miss Tooth is that she enjoyed working in the hospitality industry, and that she felt that working in this way had turned her life around.
[5] The application drew opposition from the Police and accordingly was set down for public hearing. It is noted that Miss Tooth had made an earlier application in 2000, but had not appeared at the hearing because she did not feel that the application would be granted.
[6] The grounds for opposing the application relate to s.121(1)(b) of the Act. Under that subsection the Authority is required to take into account any convictions recorded against the applicant. Miss Tooth has an unenviable record in terms of driving after drinking and, indeed, driving while disqualified. She has no less than seven convictions for driving with an excessive blood or breath alcohol content, and ten convictions for driving while disqualified. It should be noted that as far back as 1978, she was charged with careless driving causing death or injury.
[7] The offending started in 1978, and we accept that the majority of convictions are historical. There were a series of drink/driving convictions and driving while disqualified convictions. In 1992, Miss Tooth received further convictions for driving while disqualified, and driving with an excessive breath alcohol content. She was also charged with driving under the influence of drink. Her licence was taken from her indefinitely, and she was required to attend an alcohol and drug assessment centre.
[8] Miss Tooth attended the Community Alcohol Drug Service and received some counselling. However, she continued to drive while disqualified, and was apprehended in 1994 and 1997. This was about the time when she started working at the RSA. It is noted that on 7 February 2000, Miss Tooth received her last convictions. At the Waitakere District Court she was sentenced to community service for driving with an excessive breath alcohol content, and driving while disqualified. Her breath/alcohol level was 648 micrograms of alcohol per litre of breath.
[9] Miss Tooth has stated that she has changed, and that although she continues to drink, she will never drive after drinking again. Indeed, she has not got her licence back since it was last taken from her.
[10] To some extent the Authority is bound by its decision in G L Osborne LLA 2388/95 in which the Authority said:

“Without fettering ourselves in this or other applications, it may be helpful if we indicate that we commonly look for a five year period free of any serious conviction or any conviction relating to or involving the abuse of alcohol or arising in the course of an applicant’s duty on licensed premises.”

In the same decision it was stated that where there are isolated offences then a lesser period may be appropriate. Where there are multiple convictions indicating a pattern of offending such as this case, we would have to say that the five-year rule should be applied. The reason is that the law requires a manager to be on duty and responsible for compliance with the Act, and the conditions of the licence at all times when liquor is being sold to the public. The same ruling is applied by the Avondale Returned Services Association.

[11] Since the Act was amended in 1999, the standards of managers have been incrementally increased both by the industry, and by those associated with, or working within the industry, and by the Authority, and the various District Licensing Agencies, and the Police. The aim, of course, is to try and train managers to set examples to their patrons and ensure their safety.
[12] With such a series of convictions, while we do not doubt the sincerity that Miss Tooth brings to her application, there are in our view, insufficient grounds to break the general rule that five conviction free years need to elapse. Miss Tooth may
[12] wish to return to the Authority, when she has been able to achieve that particular landmark. In addition, we would also need an assessment from someone like the Salvation Army or the Community Alcohol and Drug Service, confirming that Miss Tooth no longer has any problem with alcohol.
[13] If Miss Tooth was able to appear after 7 February 2005, with valid work references in the industry, and confirmation that she has no longer any problem with liquor, then it may well be that an application such as this can be granted. In the meantime we regret to say that it must be refused.

DATED at WELLINGTON this 26th day of August 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

kltooth.doc(aw)