Barker, re [2004] NZLLA 171 (16 March 2004)

Last Updated: 24 February 2010

Decision No. PH 171/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by DANIEL DINES BARKER 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 D D Barker - applicant
Mr E Le Roux - Hastings District Licensing Agency Inspector - in opposition
Sergeant R M Gordon - NZ Police - in opposition

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Daniel Dines Barker for a General Manager’s Certificate. The Authority is governed by the criteria which are set out in s.121 of the Act. These criteria relate to such matters as character, reputation, experience, training and previous convictions.

[2] By and large Mr Barker is well qualified to be the holder of a General Manager’s Certificate. He has received training from Brett Jones and Associates Limited. At the time of the application he was employed at “Matariki Wines Limited” on a casual basis operating the cellar door on weekends.

[3] His application for a manager’s certificate was supported by the company both financially, and by letter to the agency. Mr Barker left that employment in November 2003, and he has since been working at the “Sacred Hill Winery”. He is due to complete a degree in viticulture, and he has advised us that he works partly at the winery as a cellar hand, and partly at the cellar door, where a manager’s certificate would be required.

[4] There is no presence today from the employing company, and no supporting material. In view of the fact that the other aspects of the application are positive, we are prepared to accept Mr Barker’s word on the need for a certificate. He needs to know that if he is granted a certificate, and is not using it in one year’s time, then it is unlikely that the certificate would be renewed.

[5] The issue in this case is the convictions recorded against Mr Barker. In 1993 Mr Barker was convicted of driving with excess breath alcohol. The level on that occasion was 708 micrograms of alcohol per litre of breath. Mr Barker was disqualified and sentenced to 100 hours community service.

[6] On 9 November 1999, Mr Barker was apprehended for the second time. The level on that occasion was a very high 904 micrograms of alcohol per litre of breath. Mr Barker was convicted in the District Court in Auckland some two months later and was fined and disqualified.

[7] Mr Barker is now 30 years of age. He says that he is not proud of his past. There were also convictions for careless driving which did not necessarily involve liquor abuse. He believes that he has changed that aspect of his life particularly by moving from Auckland, and living a different lifestyle. He obviously enjoys working in the wine industry, where he says that regular drinking is frowned upon. He has made a good impression on the Authority, and seems to us to have changed his life around. Mr Barker is now well aware of the dangers inherent with excessive abuse of liquor.

[8] The Authority is governed by a previous decision of G L Osborne LLA 2388/95. In this case, guidance was given for persons who had convictions as to when they might be seen as suitable to hold a certificate, and uphold the law. The Authority said:

"Without fettering ourselves in this or other applications, it may be helpful if we indicate that 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."

[9] In that decision the Authority went on to say:

“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.”

[10] In this case it could be said that there is a pattern - although the first conviction was over ten years ago. We have often found that where there are two convictions, a period of three years conviction free can be regarded as appropriate, depending on the length of time between the convictions and the level of alcohol in the breath or blood. In this case there is a seven-year gap between convictions, and the last conviction was for a high breath alcohol level. In those circumstances we would not deviate from a three-year suggested guideline stand down period. In this case the evidence is that it is now four years since the last conviction was recorded.

[11] In those circumstances we think that it is time for Mr Barker to move on and up in the hospitality industry, and the application is therefore granted.

DATED at WELLINGTON this 16th day of March 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Daniel Barker.doc(afw)