Mitchell-Derman [2003] NZLLA 810 (30 October 2003)

Last Updated: 23 January 2012

Decision No. PH 810/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by CAMERON MITCHELL-DERMAN pursuant to s.123 of the Act for the 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 QUEENSTOWN on 15 October 2003

APPEARANCES

Mr C Mitchell-Derman - applicant
Ms T J Surrey – Queenstown Lakes District Licensing Agency Inspector
– in opposition
Sergeant P F Stratford – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Cameron Mitchell-Derman for the renewal of his General Manager’s Certificate. Mr Mitchell-Derman was first granted a General Manager’s Certificate on 29 August 2000. At that time he had a conviction for driving with excess blood alcohol. The conviction had occurred approximately two years previously. The level could be described as a moderate 106 milligrams of alcohol per 100 millilitres of blood.

[2] Mr Mitchell-Derman was fined a moderate fine and disqualified for six months. Clearly the reporting agencies considered that this was an isolated event and that there was no impediment to Mr Mitchell-Derman being granted a General Manager’s Certificate.

[3] Regrettably the faith in Mr Mitchell-Derman’s character was misplaced. On 4 November 2000, that is some two and a half months after issue of his certificate, Mr Mitchell-Derman was again apprehended for similar offending. He said that he had had a big day at work. After a long day, and having had little to eat, he had a couple of drinks. As a consequence he was found to have a level of 96 milligrams of alcohol per 100 millilitres of blood. It is noted that this was not much over the allowable limit. That may have been reflected in the penalty when Mr Mitchell-Derman was fined $400 and disqualified from driving for eight months.

[4] It was this conviction which brought about opposition to the renewal of the General Manager’s Certificate. It was perhaps partly aggravated by the fact that the offending had occurred during the first probationary year of the holding of a General Manager’s Certificate. The criteria to be considered on the renewal are contained in s.126 of the Act. Mr Mitchell-Derman fulfilled the majority of the criteria except for the conviction.

[5] In the interim period of time, the case was set down for hearing, but Mr Mitchell-Derman was in Auckland for a period of time and also in Australia. Regrettably therefore the file was firstly sent to Auckland then returned. Mr Mitchell-Derman eventually came back to Queenstown. For the past year or so he has been working at another licensed premises known as “Bunkers”. Therefore the Inspector is quite right when she submits that to a large extent the application has been overtaken by time, through no particular person’s fault.

[6] Mr Mitchell-Derman has given evidence before us and he has produced a reference from a director of “Bunkers”. He is described as enthusiastic, hard working and vivacious. It is said that he will always have a job because he acts in a responsible and professional manner. Certainly he has displayed those characteristics to us. He has acknowledged a massive error in judgement. He has tended his apologies, and he has stated that the place where he works would never tolerate intoxication.

[7] It is clear in a case like this that an application for suspension would have resulted in a moderate period of suspension pursuant to s.135 of the Act. This period would have reflected the fact that this was a second conviction, and that it occurred during a probationary year and the low level of alcohol in the blood.

[8] On that basis we accept that it is probable that there is no problem with liquor abuse. The only other option available to the Authority in an attempt to be consistent with other decisions would be to reduce the period of time that the application could be renewed for. If the period of time was reduced for two and a half years then the manager’s certificate would fall due again for renewal next April. This seems to us to be rather contrived.

[9] In the circumstances we believe that the application has been overtaken by time through no individual fault. In those circumstances we propose to grant the application.

DATED at WELLINGTON this 30th day of October 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Mitchell-Derman.doc(afw)