Ferguson v Hodgson [2003] NZLLA 70 (26 February 2003)

Last Updated: 9 July 2010

Decision No. 70/2003

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 the suspension of General Manager’s Certificate number GM 1359/90 issued to PATRICK ALAN HODGSON

BETWEEN MARTIN FERGUSON

(Christchurch District Licensing Agency Inspector)

Applicant

AND PATRICK ALAN HODGSON

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at CHRISTCHURCH on 31 January 2003

APPEARANCES

Mr M Ferguson – Christchurch District Licensing Agency Inspector – applicant
Mr P A Hodgson – respondent
Sergeant J F Armstrong – New Zealand Police – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority is an application for the suspension of a manager’s certificate issued to Patrick Alan Hodgson.

[2] The ground for the application is that the manager’s conduct, is such as to show that he is not a suitable person to hold the certificate. In particular it is alleged that on 18 September 2002, Mr Hodgson was convicted in the Christchurch District Court for driving with an excess breath alcohol content. At the time of the conviction, Mr Hodgson was the holder of a current General Manager’s Certificate.

The Factual Background

[3] Mr A R Hodgson is forty six years of age. He has held a manager’s certificate for twelve years. At that time he was employed at the "Black Horse Hotel" in Lincoln Road, Christchurch. In 1995 he and a business partner took over the “Brougham Tavern". By the use of sound management skills, they managed to turn the neighbourhood tavern around, and get rid of the gangs who used to frequent the tavern. His management of the premises has not been a cause for concern. Mr Ferguson stated:

“I have no other concerns in relation to Mr Hodgson on the running of the Brougham Tavern. This application is brought because we are attempting to impose a consistent standard in relation to managers who obtain convictions while holding a managers certificate.”

[4] On Wednesday 4 September 2002, Mr Hodgson was working the day shift at the tavern. He finished working at 11.00 pm. He then drank a couple of jugs and a couple of bourbons. Later, he visited a friend and drank two more jugs. He was stopped at 11.50 pm that night because one headlight was not working on the vehicle he was driving. He admitted having consumed three to four jugs of beer and two bourbons. An evidential breath test revealed a reading of 667 micrograms of alcohol per litre of breath. Mr Hodgson has no other relevant convictions.

[5] On 18 September 2002, in the Christchurch District Court, Mr Hodgson was convicted and fined $500 and disqualified from driving for six months.

[6] Mr Hodgson acknowledged that the whole episode was not a good experience for him. He does not drink while working, and he asked the Authority to take into account his lack of any previous convictions, or adverse reports.

[7] The Authority reserved its decision pending the issuing of a decision on a similar matter involving Martin Ferguson v Alister Robert Lyon LLA PH 57/2003. In that decision, we said inter alia:

"New Zealand’s drinking culture has become defined by many factors and social changes. Its manifestation is often seen in binge drinking, or drinking harmfully. If the object of the Sale of Liquor Act is to be taken seriously, then eventually standards of good drinking behaviour will have to be set. Because people are inclined to be tolerant of alcohol abuse, then the focus must inevitably fall on the law. If the law becomes tolerant towards such behaviour, then the object of the Act will lose credibility. If managers of licensed premises are shown to lack discipline, then why should patrons take the issue seriously. The behaviour currently exhibited by younger drinkers is but a symptom of the malaise.

Nevertheless, it is our view that if managers are guilty of breaches of the drink driving provisions of the Land Transport Act, they must expect their certificates to be suspended for a period. The length of the period should represent a balance between the seriousness of the offending, and the maximum term of six months. In the majority of cases, such a result will be seen by the Authority as a desirable step towards the promotion of the object of the Act".

Conclusion

[8] Section 4(1) and (2) of the Act read:

4. Object of Act---(1) The object of this Act is to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse, so far as that can be achieved by legislative means.

(2) The Licensing Authority, every District Licensing Agency, and any Court hearing any appeal against any decision of the Licensing Authority, shall exercise its jurisdiction, powers, and discretions under this Act in the manner that is most likely to promote the object of this Act.

[9] As has been stated before, the Authority has high expectations of all managers who hold certificates. They are the people who should be able to resist the temptation to turn a blind eye to any potential breach of the Act or the licence. The example they set, and the discipline they impose, will have a significant impact on reducing liquor abuse.

[10] The sole issue in this case is the conduct of the manager. Was it such as to show that Mr Hodgson is not a suitable person to hold the certificate? In terms of suitability, the Authority has adopted the definition in the Concise Oxford Dictionary on a number of occasions:

“Well fitted for the purpose, appropriate.”

[11] In this case we are satisfied that the ground has been established. Mr Hodgson’s conduct in being convicted for driving with an excessive breath alcohol content, was such as to show that his suitability to hold the certificate had been brought into serious question. We believe that it is desirable to make an order for suspension. Because of the lack of any similar previous behaviour, and taking into account the level of alcohol in the breath, and in the light of Mr Hodgson’s record, we believe that a short term of suspension is desirable.

[12] For the reasons given, General Manager’s Certificate number GM 1359/90 issued to Patrick Alan Hodgson is hereby suspended for two weeks from Monday 10 March 2003.

DATED at WELLINGTON this 26th day of February 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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