Harris v Fleck [2003] NZLLA 76 (26 February 2003)

New Zealand Liquor Licensing Authority

[Index] [Search] [Download] [Help]

---

Harris v Fleck [2003] NZLLA 76 (26 February 2003)

Last Updated: 19 February 2010

Decision No. 076/2003

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 cancellation of General Manager’s Certificate number 073/LMG/2967/00 issued to MATTHEW DILLON FLECK

BETWEEN ARTHUR JOHN HARRIS

(Police Officer of Invercargill)

Applicant

AND MATTHEW DILLON FLECK

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at INVERCARGILL on 17 February 2003

APPEARANCES

Ms K J Moore – for respondent
Sergeant P R Stratford – New Zealand Police – applicant

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority is an application for the cancellation of a General Manager’s Certificate issued to Matthew Dillon Fleck. By agreement between the parties, it has been acknowledged that the Authority also has the power in exercising its discretion, to impose an order for the suspension of the certificate.

[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 29 January 2002, Mr Fleck was convicted in the Invercargill District Court for driving with an excess breath alcohol content, and for careless driving. At the time of the convictions, Mr Fleck was the holder of a current General Manager’s Certificate.

The Factual Background

[3] Mr M D Fleck is twenty-six. He has held a General Manager’s Certificate since 9 October 2000. Mr Fleck’s first involvement with the hospitality industry was at Avenal Homestead. In December 2001, he commenced work with the Invercargill Licensing Trust as a trainee. He worked his way relatively quickly to being an assistant manager. He was part of the management team which was formed to open a new Trust premises known as "Waxy O’Shea’s".

[4] Mr Fleck was supported by Mr Gary Muir, the Assistant General Manager, and Marketing and Sales Manager for the Invercargill Licensing Trust. He also produced a work reference from the manager of "Waxy O’Shea’s". Both offered Mr Fleck their total support. Both persons clearly consider that Mr Fleck has a bright long-term future in the hospitality industry.

[5] On Thursday 24 January 2002, Mr Fleck had the day off work. He consumed a large quantity of liquor. Although he has no memory of what brought about his decision to drive, it appears that he initially walked to his friend’s place, and then caught a taxi into town. He then caught a taxi home. The next thing he remembered was regaining consciousness at 1.15 am on the Friday morning, with his car on its side, in a ditch. He made no attempt to leave the scene although he had the opportunity. An evidential breath test gave a result of 1049 micrograms of alcohol per litre of breath.

[6] Mr Fleck was convicted in the Invercargill District Court on 29 January 2002 of careless driving, and driving with an excessive breath alcohol content. He was fined a total of $1,000 and disqualified from driving for twelve months. His car was written off and he was required to borrow $10,000 to pay it off.

[7] Mr Fleck thought that he was stressed out from working at "Waxy O'Shea’s" which had been open for just over a month. He produced confirmation from Westside that he had attended with an alcohol and drug counsellor for three sessions described as a harm reduction programme. Mr Fleck acknowledged that he had a history of binge drinking. However, he stated that alcohol was no longer an issue for him as he had other priorities.

[8] Mr Fleck also produced a letter from the Principal of the Collingwood Intermediate School. It seems that he had been invited to address his old school’s prize giving. This was partly due to his public persona following an occasional appearance on the local television channel. He spoke about his drink driving "disaster" and the profound effect it now had on his attitudes and actions. His obvious remorse and the sincerity of his subsequent life goals made a significant impact upon the 600 plus pupils and others.

[9] In summary, Mr Fleck mounted a strong case for some mitigation of any penalty. He produced an excellent reference/explanation from his brother. We accept that in his job, he is very well regarded. We acknowledge that this incident represents the only blemish against his name. Mr Fleck has the responsibility of a young child, so that cancellation of the certificate might well have serious consequences for him. Mr Muir was careful not to say that his job would automatically be taken from him. As a highly regarded employee, we would expect that work would be found for Mr Fleck depending on the length of any suspension.

[10] Following the hearing, 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 made a number of comments about the issue including the following:

"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

[11] Section 4(1) and (2) of the Act reads:

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.

[12] As has been stated before, the Authority has high expectations of all managers. 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, and consequential abuse of liquor.

[13] The issue in this case is the conduct of the manager. Was the conduct such as to show that Mr Fleck 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.”

[14] In this case we are more than satisfied that the ground has been established. Mr Fleck’s conduct in being convicted for driving with such an excessive breath alcohol content, and for careless driving, 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 his subsequent behaviour, and his level of support, we believe that a short term of suspension is more desirable than cancellation. In other circumstances, the term of suspension may well have been increased.

[15] For the reasons given, General Manager’s Certificate number GM 073/LMG/2967/00 issued to Matthew Dillon Fleck is hereby suspended for four 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

Fleck.doc(nl)