King v Bogue [2003] NZLLA 94 (28 February 2003)

Last Updated: 20 February 2010

Decision No. PH 94/2003

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 cancellation of General Manager’s Certificate number GM 5286/99 issued to JOANNE PATRICIA BOGUE

BETWEEN GRAEME KENNETH KING

(Police Officer of Invercargill)

Applicant

AND JOANNE PATRICIA BOGUE

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at INVERCARGILL on 20 February 2003

APPEARANCES

Sergeant P Stratford – New Zealand Police - applicant
Miss J P Bogue - respondent
Ms D M McDonald – Invercargill District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application for the cancellation of a General Manager’s Certificate. The ground for the application is that the manager’s conduct is such as to show that she is not a suitable person to hold a certificate. In particular it is alleged that on 9 April 2002, Miss Bogue was convicted in the Invercargill District Court on a charge of driving with excess breath alcohol. This was a third offence for her. At the time of the conviction, she was the holder of a current General Manager’s Certificate.

[2] Miss Bogue was first granted her General Manager’s Certificate on 21 December 1999. When she made her application, the Police did a background check as they are required to do. There were previous convictions, and in particular there were two convictions against the drink driving provisions of the Transport Act. In 1998 Miss Bogue was convicted in the Invercargill District Court for driving with an excessive breath alcohol content. The level on that occasion was 750 micrograms of alcohol per litre of breath. In 1991 Miss Bogue received her second conviction for a similar offence. On that occasion the level of alcohol in her breath was 514 micrograms per litre of breath.

[3] Accordingly, the Police having noted that the last conviction had occurred eight years previously, decided that they would not oppose the application. Nevertheless they wrote to Miss Bogue on 11 November 1999 confirming that there would be no opposition, but cautioning Miss Bogue to the effect that if she were to re-offend, then an application for the cancellation of the manager’s certificate would be made.

[4] Having obtained her certificate, Miss Bogue worked from time to time at the “Glengarry Tavern” for almost a year. She subsequently worked for shorter periods of time at the “Southland Tavern” and the “Highlander Café Bar”. When she was apprehended on this latest charge, Miss Bogue was working at the freezing works. Accordingly, no decision was taken immediately to apply to cancel her manager’s certificate, as she was not using it. It was only when she obtained employment at licensed premises, that this application was filed.

[5] On 16 March 2002, Miss Bogue was the driver of a motor vehicle. She had been drinking at the “Glengarry Tavern”. An evidential breath test gave a result of 824 micrograms of alcohol per litre of breath. It is noted that this was over twice the allowable limit. Miss Bogue says that she has no problem with the use or abuse of alcohol. It is significant that the Land Transport Act 1998 increased the penalty for a third or more conviction for such an offence by eight times. The previous penalty was a maximum of three months imprisonment. With two previous convictions Miss Bogue’s potential penalty was two years imprisonment. It would be difficult to find a more significant example of Parliament’s intention to get serious about the ongoing problem of driving after drinking.

[6] Miss Bogue has given evidence. She is not currently working in the industry but she is not discounting the possibility that during the off season with the freezing works, she might use her manager’s certificate if it were available to her. We note that her manager’s certificate is due for renewal on 21 December 2003. She would have to make a decision at that time at any event whether or not to continue with a vocation in the hospitality industry.

[7] The issue before the Authority is whether the certificate could be cancelled or suspended. Although the application was made for a cancellation only, we have attempted to be consistent with other similar applications that have come before us. It is true that Miss Bogue received a written warning which clearly set out the options available to her. In the light of that warning she still drove after drinking. On the other hand, there is no suggestion that while she has used her certificate, she has ever breached the Act.

[8] We are governed by s.4 ss.2 of the Act which reads that:

“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.”

[9] The object of the Act is to establish a reasonable system of control over the sale of 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. In recent cases we have been at pains to point out that if managers incur convictions which have arisen through abuse of liquor, then at the very least, they must expect a suspension of the manager’s certificate.

[9] In a recent case involving Martin Ferguson v Alistair Robert Lyon LLA PH 57/2003 it was said by the Authority:

“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.”

[10] In this case the conduct of Miss Bogue in incurring a third conviction for driving with excessive breath alcohol content is such that we do not consider it appropriate that she continues to hold a General Manager’s Certificate. In our effort to be consistent with other decisions we have made, we believe a term of suspension is more desirable than cancellation.

[11] However the term of suspension will be for the maximum period available. For the reasons given the General Manager’s Certificate number GM 5286/99 issued to Joanne Patricia Bogue will be suspended for six months from today.

DATED at WELLINGTON this 28th day of February 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Bogue.doc(afw)