King v Booth [2003] NZLLA 95 (28 February 2003)

Last Updated: 20 February 2010

Decision No. PH 95/2003 -
PH 96/2003

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 GM 2007/92 issued to MICHAEL JOSEPH BOOTH

BETWEEN GRAEME KENNETH KING

(Police Officer of Invercargill)

Applicant

AND MICHAEL JOSEPH BOOTH

Respondent

AND

IN THE MATTER of an application by MICHAEL JOSEPH BOOTH 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 INVERCARGILL on 20 February 2003

APPEARANCES

Mr M J Booth – respondent and applicant for renewal - in person

Ms D M McDonald - Invercargill District Licensing Agency Inspector – in opposition to application for renewal

Sergeant P Stratford – New Zealand Police – applicant and in opposition to application for renewal

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority are two applications. The first is an application brought by the Police to suspend Mr M J Booth’s General Manager’s Certificate. The ground for the application is that the manager’s conduct is such as to show that he is not a suitable person to hold the certificate. In particular it is alleged that on 28 June 2002 Mr Booth was convicted in the Invercargill District Court for driving with an excessive blood alcohol content. At the time of the conviction Mr Booth was the holder of a current General Manager’s Certificate.

[2] The application was brought by the Police to show consistency in bringing all managers before the Authority, who transgress against the drink driving provisions of the Land Transport Act or who commit any other serious offending.

[3] The second application is an application by Mr Booth for the renewal of his General Manager’s Certificate. Mr Booth, (as will be explained shortly) has had a General Manager’s Certificate for a number of years. It so happens that the certificate became due for renewal in October 2002. It was felt appropriate that opposition adverse reports be filed by the Police and the District Licensing Agency Inspector, in the light of the application for suspension, so that both matters could be dealt with by the Authority at the one time. The criteria for considering the application for the renewal are contained in s.126 of the Act. The criteria are:

(a) The character and reputation of the applicant;

(b) Any convictions recorded against the applicant since the certificate was issued or last renewed;

(c) The manner in which the manager has managed the sale and supply of liquor pursuant to the licence, with the aim of contributing to the reduction of liquor abuse;

(d) Any matters dealt with in any report made under s.124 of the Act.

[4] Mr Booth has provided us with a dossier detailing his involvement with the hospitality industry going back almost 20 years. Mr Booth is a mature 55 year old, with four adult children. He has produced copies of an impressive number of courses that he had attended in order to keep up to date with any changes in the law as they may affect the running of licensed premises. He first ran a hotel around about 1985 at Nightcaps. He has produced copies of the Inspector’s reports and various other reports over the years in relation to the running of that hotel, and other licensed premises. As indicated earlier he has had a General Manager’s Certificate for the last ten years. Since 1996, Mr Booth has been the club manager of the Makarewa Country Club. The Sergeant of Police who gave evidence has acknowledged that this is an extremely well run club under the leadership of Mr Booth, and this has been the case for the last six years.

[5] On Saturday 18 May last year, Mr Booth had the weekend off. He attended a television production of a Highlanders’ super twelve game at the Country Club. He clearly drank to excess, and did not eat. Regrettably, he made the decision to drive. Just after 11.00 pm his vehicle was seen to be driving in an erratic manner. It was stopped. The evidential breath test gave a reading of 584 micrograms of alcohol per litre of breath. A subsequent blood specimen showed a concentration of 142 micrograms of alcohol per 100 millilitres of blood. Sergeant Harris stated that Mr Booth co-operated fully with the Police, and was very remorseful for his actions, and apologised to the Court.

[6] There is some irony in the fact that Mr Booth takes great pride in his profession. The Country Club where he works provides a courtesy coach, and Mr Booth personally has driven customers home from time to time, and if necessary taken the car keys from them.

[7] Mr Booth has produced a medical certificate confirming that over the 30 years that the doctor has known him, he has never known him to have an alcohol problem. We accept that this is the case.

[8] Finally Mr Booth has produced an up-to- date reference from the Country Club about his efficiency and co-operation at the club.

[9] The issue then is not only whether the ground has been established in terms of the application for suspension, but whether it is desirable that a suspension order be made.

[10] The secondary issue is whether or not the General Manager’s Certificate should be renewed, and if so for how long. In terms of the criteria, it is clear that Mr Booth’s character and reputation are without fault. The manner in which he has managed the sale and supply of liquor pursuant to the licence with the aim of contributing to the reduction of liquor abuse, has the full support of the Police. The only issue is the conviction.

[11] We are bound to remind ourselves of the object of the Act contained in s.4(1) of the Act, which is to establish a reasonable system of control over the sale and supply of liquor to the public with the aim to contributing to reduction of liquor abuse so far as that can be achieved by legislative means. All decisions that we make as an Authority should be exercised in a manner that is most likely to promote the object of the Act. Clearly liquor abuse is a problem. We have said in a recent case involving Martin Ferguson v Alistair Robert Lyon LLA PH 57/203:

“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 a maximum term of six months.”

[12] In the majority of cases such a result will be seen by the Authority as a desirable step towards the promotion of the object of the Act. We have said in the past and we repeat that the Authority has high expectations of managers. They should set an example for patrons in terms of self discipline and self restraint.

[13] In normal circumstances involving a one off conviction such as this, a manager could expect to have his or her manager’s certificate suspended for between two and four weeks. In the light of the impressive history that Mr Booth brings to this Authority, and taking into account his stewardship and administration of the club, we do not believe that it is desirable that his manager’s certificate be suspended. In other words it is our view that this is a unique situation which requires more consideration other than a suspension. The system which we are required to help establish must be ‘reasonable.’

[14] We therefore propose to adjourn the application for suspension for a period of six months. If during that time there is any repetition of such behaviour, or any further allegations of inappropriate conduct, then the matter can come before us in a public hearing.

[15] If at the end of six months there is no such request then the application will be withdrawn.

[16] In terms of the renewal we have no hesitation in confirming the renewal for the period of three years.

DATED at WELLINGTON this 28th day of February 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

095-96-2003Booth.doc(afw)