Burgess v Russo [2003] NZLLA 899 (26 November 2003)

Last Updated: 25 January 2012

Decision No. PH 899/2003

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 or cancellation of General Manager’s Certificate number GM 2127/99 issued to DOMINIC ADRIAN RUSSO

BETWEEN RONALD FRANCIS BURGESS (Tauranga District Licensing Agency Inspector)

Applicant

AND DOMINIC ADRIAN RUSSO

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at TAURANGA on 18 November 2003

APPEARANCES

Mr R F Burgess - Tauranga District Licensing Agency Inspector - applicant
Mr N Elsmore - for respondent

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by the Tauranga District Licensing Agency Inspector to suspend or cancel a General Manager’s Certificate issued to Dominic Adrian Russo. The grounds for the application is that the manager had failed to conduct licensed premises in a proper manner. The particulars relate to a number of charges being:

• [a] Selling liquor outside authorised hours;

[b] Selling liquor otherwise in pursuant to the licence;
[c] Selling liquor on Easter Sunday.

[2] These charges have been dealt with in the District Court we understand and penalties have been imposed. The Inspector regards the particular charges as serious enough to warrant the possibility of the cancellation of the General Manager’s Certificate. The Inspector takes the view that this is a matter which should properly be dealt with by this Authority.

[3] Mr Elsmore acts for Mr Russo. Yesterday he made an application for an adjournment of the suspension application. He produced a medical certificate which indicated only that Mr Russo was unfit for work and had been unfit to work for at least six weeks. A more detailed medical certificate produced today shows that Mr Russo has sleep apnoea. This has resulted in day time sleepiness and poor concentration. There were concerns about the possibility of a brain tumour, and Mr Russo continues to have headaches.

[4] As a consequence of the visits to specialists, counsel has been unable to brief his evidence properly. Mr Elsmore was also concerned that Mr Russo might not be able to give a good account of himself on an issue which involved his future potential employment.

[5] As a consequence of the medical certificate and the submissions made, Mr Burgess, the Inspector accepted that there were grounds for the application to be adjourned. Mr Russo had already given an undertaking to the District Licensing Agency that he would have no involvement in the premises which he had previously operated known as “Deano’s”. That undertaking has been confirmed by Mr Elsmore and expanded. If an adjournment is granted, Mr Russo has undertaken that he would have no involvement in the running or management of “Deano’s” bar. Furthermore and for obvious reasons, he will not use his General Manager’s Certificate between now and the date of the hearing of the application without obtaining firstly the written confirmation from the District Licensing Agency Inspector or this Authority.

[6] The decision therefore is that the application stands adjourned. It will be dealt with next time the Authority visits Tauranga. If Mr Russo becomes well, and wishes to use his General Manager’s Certificate, he will make an appropriate request to Mr Burgess. If there is a difficulty in relating to the request, the case will be referred back to the Authority. The Authority will either deal with the application to enable Mr Russo to use his General Manager’s Certificate, or arrange to have an earlier hearing.

[7] The application is adjourned accordingly.

DATED at WELLINGTON this 26th day of November 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Russo Dominic.doc(afw)