Prendergast v Cooper [2003] NZLLA 846 (6 November 2003)

Last Updated: 24 January 2012

Decision No. PH 846/2003

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 suspension of General Manager’s Certificate number 033/GM/252/2001 issued to COLIN CLIFFORD COOPER

BETWEEN MATTHEW PHILIP JOSEPH PRENDERGAST
(Police Officer of New Plymouth)

Applicant

AND COLIN CLIFFORD COOPER

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at NEW PLYMOUTH on 28 October 2003

APPEARANCES

Sergeant M P Prendergast - NZ Police - applicant
Mr J B M Henderson - for respondent
Mr M E Clearwater - New Plymouth District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] On 7 December 2001 Colin Clifford Cooper was granted a General Manager’s Certificate. He was 52 years of age at the time, and for the majority of his working life he had been employed at the Post Office. He and his wife had subsequently run two small businesses. He had been approached to work at a licensed premises known as “Shifties Sports Bar and TAB”. He was asked to help because of his knowledge of computers and managerial experience. He also worked as a barman. In the course of time he attended a polytechnic course, and studied for his General Manager’s Certificate which was duly granted.

[2] At the time of the grant of the certificate Mr Cooper had been married for approximately 20 years. His wife was suffering from emphysema. On 19 June 2003, after the General Manager’s Certificate had been renewed, Mr Cooper’s wife sadly died, and his life fell apart.

[3] He had purchased another house. He and his wife had sold their three storey property, and purchased a smaller house. There was a week or so when they had to stay with friends, and it was during that time that Mrs Cooper died.

[4] Mr Cooper moved in to the new house on his own on 26 June 2003, about a week later. The following day Mr Cooper went into New Plymouth, and returned to his place of work as he said, “to face the world”. He was not on duty, and there is no question that he drank to excess, helped to some extent by a number of people who came up and passed on their condolences to him.

[5] That night, 27 June 2003, he decided to travel the one kilometre to his new home by car. He now recognises the absolute stupidity of that decision. He was apprehended and produced a breath alcohol level of 1,065 micrograms of alcohol per litre of breath. It should be noted that when he made his original application for a General Manager’s Certificate he had received a similar conviction in the year 2000. The level on that occasion was also reasonably high at 732 micrograms of alcohol per litre of breath. It would seem that both the Police and the District Licensing Agency Inspector acknowledged that it was an isolated event, and the application was granted.

[6] Because this was a second conviction, an assessment centre order had to be made. When Mr Cooper pleaded guilty and was dealt with on 10 July 2003, he was fined $1,000. He was disqualified for an unlimited period being not less than two years, and he is unable to get his licence back until it was restored to him by the Secretary for Transport. This could only happen after he has been through an alcohol and drug assessment. In addition his motor vehicle was confiscated.

[7] As a consequence of that conviction, the Police quite properly brought an application for the suspension of the General Manager’s Certificate. The application was received by the Authority on 29 September 2003. It is unusual that the application has had a hearing so quickly.

[8] The grounds for the application were that Mr Cooper’s conduct was such as to show that his suitability had been brought into question. There were other factors that influenced the Police in bringing the application. When Mr Cooper was interviewed by the Sergeant in charge of liquor licensing for New Plymouth, he was not in a positive frame of mind. He indicated to the Sergeant that he did not really care whether he worked or not, but if he did he would carry out his duties in a professional manner.

[9] He also indicated to the Sergeant that alcohol had been a feature in his family during his life, and that his tolerance to alcohol may have been higher than others. The Police quite properly had a number of concerns which they felt should be brought before the Authority, and they have done so.

[10] Mr Henderson has suggested that Mr Cooper has been punished already and should not be punished further and we are inclined to agree.

[11] Another matter that affected Mr Cooper’s situation was that when his wife died, his employer showed no great understanding or support of his plight. In fact the employer was quite indifferent to him. This form of negativity did not help Mr Cooper deal with his loss and his grief.

[12] It so happened that on 22 September 2003, just a few weeks ago, Mr and Mrs Gallagher purchased the business and the change of ownership and transformation of the business has been quite significant for Mr Cooper. The new owners are considerate and fully supportive of the staff. Mr Cooper has regained an interest in the work that he has been doing. Mr Gallagher has seen fit to come before the Authority, and talk about Mr Cooper’s honesty and reliability, and his dependence on him, particularly in relation to the running of the TAB.

[13] It was suggested by Mr Gallagher that if the certificate was suspended then Mr Cooper’s employment might be at risk. We do not accept that. The attitude of the Authority is summed up in the case of Albert Robert Lyon PH 57/2003. Some of the quotations from that decision read as follows:

“When Parliament passed the Sale of Liquor Amendment Act 1999 it amended s.115(1) to emphasise the fact that a manager must be on duty at all times when liquor was being sold or supplied to the public. All managers would be responsible for ensuring that the premises complied not only with the Act but also with the conditions of the governing licence.

The reasoning behind the amendment was to encourage the drive to raise the standards of those charged with the responsibility of supplying liquor to the public. The expectation was that the management of licensed premises would be conducted only by persons of integrity committed to supervising the sale and supply of liquor and concerned to give new meaning to the term host responsibility. The ultimate aim was to achieve the Act’s objective of reducing the incidents of liquor abuse.

At issue in this and other cases is the example set by managers of licensed premises. For example how can it be possible to impose on others the virtue of self restraint when the lack of it is not regarded seriously by others. 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 or 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. If behaviour currently exhibited by younger drinkers are 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 would be seen by the Authority as a desirable step towards the promotion of the object of the Act.”

[14] Those comments must be taken into account in the particular circumstances of this case. The Court of Appeal has enjoined us to be reasonable and even handed. This is a case where Mr Cooper has explained to us that he never drinks while he is at work, and he acknowledges what he has done. It seems that he only works during the day in any event, but even if he did not, he would have no trouble in dealing with those who are served by him and who may be intoxicated.

[15] In the Authority’s view this is a rare case where a term of suspension should not be made. We do not condone what has happened, but we can understand how Mr Cooper reacted in this way. In our view Mr Cooper, in this unusual case, is deserving of sympathy. As we have said before it is unusual that the case has been dealt with so swiftly, during a time when quite probably, he is still grieving.

[16] We accept that the case has properly been made out by the Police. However, we have decided to use our discretion pursuant to s.135(7) of the Act. Instead of making a suspension order, we can adjourn the application for such period as we think fit to give the manager an opportunity to remedy any matters that the Authority may require to be remedied within that period.

[17] Liquor abuse is always a serious issue but in the circumstances we propose to adjourn these proceedings for 12 months. In that time Mr Cooper’s management of licensed premises will be monitored by the reporting agencies. During that time, we would expect that Mr Cooper would commence undergoing the Assessment Centre order which was ordered by the Court. It may well be that the assessment report is sent to the Authority. If, after 12 months, there are no signs of any liquor abuse by Mr Cooper, and there are no other untoward or adverse incidents, then as far as the Authority is concerned that will be the end of the matter.

[18] On the other hand if there are concerns expressed by the reporting authorities, a further public hearing may be necessary.

[19] The application is adjourned accordingly.

DATED at WELLINGTON this 6th day of November 2003

B M Holmes
Deputy Secretary

Cooper Colin.doc(afw)