McEwan, re [2004] NZLLA 168 (16 March 2004)

Last Updated: 24 February 2010

Decision No. PH 168/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by NICHOLAS JAMES McEWAN 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 NAPIER on 10 March 2004

APPEARANCES

Mr N M McEwan - applicant
Mrs A McCaw - Napier District Licensing Agency Inspector - in opposition
Senior Sergeant J H Lovatt - NZ Police - in opposition

ORAL DECISION OF THE AUTHORITY

[1] The Authority is required to rule on an application by Nicholas James McEwan for a General Manager’s Certificate. There are a number of criteria to which the Authority must have regard when making its decision. These criteria are listed in s.121 of the Act and include:

(a) The character and reputation of the applicant:

(b) Any convictions recorded against the applicant:

(c) Any experience, in particular recent experience, that the applicant has had in managing any premises or conveyance in respect of which a licence was in force:

(d) Any relevant training, in particular recent training, that the applicant has undertaken and any relevant qualifications that the applicant holds:

(e) Any matters dealt with in any report made under section 119.

[2] The law in relation to the management of licensed premises was changed on 1 April 2000. The responsibility for the management of all licensed premises was placed on the shoulders of a person who was the holder of a General Manager’s Certificate. As a consequence there has been a steady impetus to raise the standards of managers. Nowhere is the reason for improvement better expressed than in the case of Deejay Enterprises Limited LLA 531 – 532/97 in which the Authority said:

"The guiding hand or hands-on operator of any company or the potential holder of a General Manager’s Certificate now receive greater scrutiny from both the Police and other reporting agencies. Character and reputation are closely examined. The law and human desires of patrons frequently tug in different directions. The Police cannot be everywhere. Little but a licensee’s or manager’s character and suitability may stand between upholding the law and turning a blind eye. Self imposed standards in accordance with the law must be set by licensees and holders of General Manager’s Certificates who control and manage licensed premises."

[3] Against that background we record that Mr McEwan has received training and has a certificate of achievement from Brett Jones and Associates Limited. He was employed at “Legends Sports Bar Café” in Napier approximately 12 months ago. He has the committed support of the former and current manager of the premises, the latter having seen fit to come before the Authority to express her belief that Mr McEwan has the ability to make a very good duty manager.

[4] Mr McEwan is very young - he is still 21 years of age. He will be 22 in October. When the application was made in August 2003, Mr McEwan was then appointed as a temporary manager, and has acted in that role for some time.

[5] In his application he was asked whether he had been convicted of any offences and he said “no”. The Police evidence is that on 30 April 2003, Mr McEwan was convicted of wilful damage. The evidence shows that he threw a rock through a window at about 11.00 pm after having been drinking. Mr McEwan says that he was drinking for the wrong reasons. He was offered diversion but he did not complete the payment of the required donation, and as a consequence the matter was referred back to the District Court, and a conviction was entered.

[6] Mr McEwan was not really aware that this had happened, and in our experience, this is not an uncommon experience with persons involved in the diversion process. People do their best to make certain that defendants are aware of the process, but sometimes there can be misunderstandings.

[7] On this occasion we are prepared to give Mr McEwan the benefit of the doubt. However not only is there a conviction involving liquor abuse recorded less than 12 months ago, but on 11 August 2003, the day before Mr McEwan made his application for a manager’s certificate, Mr McEwan was found in a street in Napier smoking a cannabis cigarette. When Mr McEwan was searched, a cannabis tinny was found containing approximately half a gram of cannabis. This was destroyed, and Mr McEwan received a warning.

[8] As the Police quite properly have pointed out, Mr McEwan’s involvement with cannabis goes to his character. Mr McEwan quite candidly has acknowledged that he has a continued, (albeit sporadic), interest in the drug. He acknowledged partaking of the drug as up to once a month.

[9] There has always been a concern by the Authority about involvement by managers with cannabis and other drugs. Regrettably there can be a connection between the drug and the Sale of Liquor Act. There is also the consideration that at least 50% of all criminal activity in this country arises from the use or abuse of drugs including liquor.

[10] Having heard from Mr McEwan it is our view that it is too early for him to be granted a General Manager’s Certificate. Among other considerations he lacks maturity. The Authority is governed to some extent by its previous decision in G L Osborne LLA 2388/95, in which the Authority said:

“Less serious convictions are also weighed. By way of example is an isolated excess breath/blood alcohol conviction or a single driving offence disclosing no pattern of offending. In these and similar cases we frequently indicate that a minimum of two years from the date of conviction may result in subsequent favourable consideration.”

[11] Mr McEwan needs to take stock and decide where he is headed with the use of the drug. He needs to spend some time confirming that he is sufficiently mature not just to take over the operation of “Legends”, but the running of any licensed premises in Napier, if he is to be granted a certificate. We would have thought that two years from his apprehension in August 2003, might be an appropriate time period for Mr McEwan to prove that he has turned the corner. On the other hand if he were able to obtain some form of counselling or treatment from a local drug and alcohol agency, it may be that that period could be shortened.

[12] In any event the period of time that we suggest takes us beyond the normal 12 months adjournment period that we would have liked to have imposed. The decision of the Authority regrettably, is that we must decline the application today. Mr McEwan is welcome to apply in August 2005, when he may expect greater leniency. Alternatively if there is to be a form of treatment with an agency, that period of time may be reduced.

[13] The application is refused.

DATED at WELLINGTON this 16th day of March 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Nicholas McEwan.doc(afw)