Whitham, re [2004] NZLLA 148 (8 March 2004)

Last Updated: 22 February 2010

Decision No. PH 148/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by JEREMY WILLIAM WHITHAM pursuant to s.118 of the Act for a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at HAMILTON on 26 February 2004

APPEARANCES

Mr J Whitham - applicant
Mr T Van Der Heijen - Hamilton District Licensing Agency Inspector - to assist
Sergeant F A Grace - NZ Police - in opposition

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Jeremy William Whitham for a General Manager’s Certificate. There are a number of criteria to which this Authority must have regard in considering such an application. The relevant criteria in this case are Mr Whitham’s character and reputation, and a serious conviction recorded against him.

[2] Mr Whitham has held a General Manager’s Certificate in the past although this was allowed to lapse. As a consequence, a fresh application has been filed. Mr Whitham has a reasonable amount of experience in the conduct of licensed premises. He has worked at the “Glenview Hotel” in Hamilton, the “Alvian Hotel” in Auckland, and the “Te Rapa Tavern” in Hamilton. In addition he has worked at a “Liquorland” store and more recently he has worked on a part time basis at “Moose’s Bar” and “Aleways Bar”.

[3] Mr Whitham’s application drew an adverse report from the Police based on a conviction for male assaults female. The circumstances of this conviction were as follows. On the night of 11 May 2002, or the early hours of the following morning, Mr Whitham had been drinking. His behaviour was such that he was asked to leave the home. Despite the request, he refused to do so and he only left when the Police were called. Because of his level of intoxication, Mr Whitham was taken to the Police Station where he was placed in the cells for detoxification. He was released at 6.30 am on 12 May and went back to the address where his girlfriend was. It was then that he became involved in an argument which escalated to the extent that there was a punch to the mouth of the girlfriend, resulting in the loss of a tooth. The applicant then left the scene, and later expressed sorrow for his actions.

[4] He duly came before the Hamilton District Court on 3 July 2002, and was ordered to pay $500 which went to the victim. Mr Whitham has indicated that the Judge did not consider that he needed either alcohol or anger management counselling. In an explanation both to the Inspector and this Authority, Mr Whitham stated that he developed a brain tumour in 1999, for which he has had a considerable amount of treatment. The combination of being unwell, sometimes depressed, and alcohol, led to what he says was abnormal behaviour.

[5] Mr Whitham wanted to bring his former partner to the hearing to give her side of the story. In our view any explanation, and any mitigating factors which formed part of the assault, are not the issue to be determined.

[6] What has happened since is that Mr Whitham has found that because he was unqualified for managerial work in the hospitality industry, he has obtained full time employment as the manager of a wool store. He still hopes it seems, to return to the industry even on a part time basis. The negative aspects to the application are:

• [a] The fact of the conviction;
  
• [b] The fact that he is not currently working in the industry; and
  
• [c] The lack of any appearance by, or any reference from any employer.
  

[7] We understand that the proprietor of “Moose’s Bar” and “Aleways Bar” did pay for the application. To that extent it could be said that Mr Whitham’s employment is supported. and it may well be that Mr Whitham could obtain more responsibility if he was granted a certificate.

[8] We acknowledge the extensive submissions which have been made by the Police. They see the conviction as serious because it involves violence and abuse of liquor. The Police asked whether Mr Whitham would be able to control his behaviour in the future. They submitted that in order to maintain and raise the bar for those who are afforded the privilege of holding a manager’s certificate, the application should be declined.

[9] To some extent we are governed by a previous decision. In G L Osborne LLA 2388/95 the Authority said:

“We commonly look for a five year period free of any serious conviction or any conviction relating to or involving the abuse of alcohol or arising in the course of an applicant’s duty on licensed premises.”

[10] In view of the positive matters which Mr Whitham brings to the application, a period of three years from the date of the offending might be considered more reasonable. This period is beyond the normal 12 months for which we might adjourn such an application. It is our view that because of the serious offending, and the other circumstances concerning current employment, we cannot grant the application at this time.

[11] No such findings should be infinite. If Mr Whitham is able to show that he has learned the error of his ways and stayed out of trouble for a minimum of three years, and if he has the support of a future employer in the hospitality industry, it may be that a future application can be looked at with confidence.

[12] In the meantime the application must be declined.

DATED at WELLINGTON this 8th day of March 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Jeremy Whitham.doc(afw)