Nightingale [2003] NZLLA 814 (30 October 2003)

Last Updated: 23 January 2012

Decision No. PH 814/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by NAOMI GLORIA NIGHTINGALE (nee Wakefield) pursuant to s.123 of the Act for 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 PALMERSTON NORTH on 21 October 2003

APPEARANCES

Mrs N G Nightingale – applicant
Sergeant D Matheson – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Naomi Gloria Nightingale for the renewal of her General Manager’s Certificate. The certificate was issued in Mrs Nightingale’s maiden name Naomi Gloria Wakefield on 9 August 2002.

[2] Mrs Nightingale had worked hard to obtain a General Manager’s Certificate. When she made her application she disclosed a number of historical convictions. It is clear that these convictions were not regarded as an impediment to her being granted a certificate and it was duly granted.

[3] The application to renew the certificate was made on 25 July 2003. Mrs Nightingale did not disclose the fact that at the time she made her application, she had been apprehended for driving with an excess blood alcohol content some six days previously. There was no need for her to record of course any conviction because there had been none at the time.

[4] As it happens the conviction was recorded on 9 September 2002. The level of alcohol in Mrs Nightingale’s blood was 105 milligrams of alcohol per 100 millilitres of blood. Mrs Nightingale was duly convicted in the Taihape District Court and fined.

[5] The aggravating feature of the matter is that the offence occurred when Mrs Nightingale was in her probationary year of being the holder of a General Manager’s Certificate. Mrs Nightingale has indicated that she does not drink at work, she does not have a problem with the abuse of liquor and indeed she does not particularly wish to work behind a bar because she believes she lacks the patience to do so.

[6] She is a hard working member of the executive committee of the “Taihape Working Mens Club”. Although she ceased working at the club when she received her conviction, she intends to assist with the running of that club and will use her General Manager’s Certificate to do so.

[7] She has indicated that one of the reasons she wished to retain her General Manager’s Certificate was for her CV, although she has now been advised that it is necessary for the certificate to be used if it is to be maintained.

[8] This is another situation where had the Police or Inspector been aware of the conviction at the time it occurred in September 2002, an application pursuant to s.135 may well have been brought for the suspension of the manager’s certificate for a limited period. This has the effect of bringing home to managers the need to maintain high standards, and set examples to their patrons in terms of harm minimisation. This has not happened. We have taken the view that where there is a lapse of time and an isolated offence, it would be unduly unreasonable to refuse the renewal.

[9] On the other hand in cases such as this it is more appropriate to renew the General Manager’s Certificate for a limited period thereby placing the applicant under a further period of probation. If the applicant is able to show that the event is isolated, and that there are no other difficulties in terms of s.126 of the Act then no doubt further applications can be granted.

[10] In this case we have taken into account the fact that Mrs Nightingale has effectively stopped work in the interim period of time although she was legally allowed to do so. In all the circumstances we propose to grant a renewal of her General Manager’s Certificate in her married name of Naomi Gloria Nightingale for a period of 18 months. This will mean that on 7 February 2005 a further renewal application will be required.

[11] The renewal is made accordingly.

DATED at WELLINGTON this 30th day of October 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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Nightingale.doc(afw)