Harris v Culhane [2004] NZLLA 217 (1 April 2004)

Last Updated: 1 March 2010

Decision No. PH 217/2004

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/1212/94 issued to PAUL MARTIN CULHANE

BETWEEN ARTHUR JOHN HARRIS

(Police Officer of Invercargill)

Applicant

AND PAUL MARTIN CULHANE

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at INVERCARGILL on 25 March 2004

APPEARANCES

Sergeant I C Temple - NZ Police - applicant
Mr G J Muir - for respondent
Ms D M McDonald - Invercargill District Licensing Agency Inspector - to assist

ORAL DECISION OF THE AUTHORITY

[1] When Parliament passed the Sale of Liquor Amendment Act 1999, it amended s.115(1) to emphasise the fact that a manager must be on duty at all times when liquor was being sold or supplied to the public. In future all managers would be responsible for ensuring that the premises complied not only with the Act, but also with the conditions of the licence.

[2] The reasoning behind the amendment was to encourage the drive to raise the standards of those charged with the responsibility of supplying liquor to the public. The expectation was that the management of licensed premises would be conducted by persons of integrity, committed to supervising the sale and supply of liquor, and concern to give real meaning to the term ‘host responsibility’. The ultimate aim was to achieve the Act’s objective of reducing the incidence of liquor abuse.

[3] A number of initiatives have been undertaken by the Police, District Licensing Agencies and Public Health Officers to support that general raising of the standards of managers. As part of the effort to increase awareness and standards, the local enforcement policy in Southland is that when managers are convicted of drink driving, they must appear before the Authority and explain why they should retain their manager’s certificates.

[4] Accordingly when the respondent in this matter, Paul Martin Culhane, was convicted of just such a charge, the Police brought an application for the suspension of his certificate. This was despite the fact that they acknowledged that he was a professional manager, and that he had not come to the attention of the enforcement authorities before, and that in their judgement, he had no particular personal issue with the use of abuse of liquor.

[5] The application was filed in August 2003. The ground for the application was that Mr Culhane’s conduct had been such as to show that he was not a suitable person to hold the certificate. The evidence which we have heard indicates that Mr Culhane was apprehended driving at 12.40 am on Saturday 28 June 2003. He admitted to having consumed a couple of pints of beer. An evidential breath test gave a result of 453 micrograms of alcohol per litre of breath. Mr Culhane had no previous record of any type. He was convicted in the Invercargill District Court some four days later, and was fined a relatively nominal amount of $350.00, and disqualified for six months.

[6] In this case Mr Culhane has been represented by Mr G J Muir, the Marketing Manager and Assistant General Manager of the Invercargill Licensing Trust. Mr Muir has known Mr Culhane personally and professionally for some years. He described Mr Culhane as a dedicated, hard working professional manager, who has been employed for a number of years managing licensed premises known as “The Clifton Club”. He has succeeded in giving that particular licensed premises a club type atmosphere. The motto seems to be that the premises are to be regarded as the patron’s country pub in town. Mr Muir spoke about Mr Culhane’s other personal characteristics, and described him as honest and reliable. He believed that there had been a serious miscalculation which had resulted in his being stopped and subsequently breath tested.

[7] Mr Culhane has also given evidence. It is clear that he is embarrassed by the fact that not only has he had to appear in the District Court, but also before the Authority. He has been working for the Invercargill Licensing Trust for some 13 years and he finds the job very rewarding. He said that on the night in question he was in a hurry as they were very busy. He consumed two pints of beer in a relatively short space of time, and had had nothing to eat.

[8] As with the Police, we retained some scepticism that two pints of beer would produce a breath alcohol level of 453 micrograms of alcohol per litre of breath, although Mr Culhane was taking some medication at the time. At any event, evidence has satisfied us that there is no concern with Mr Culhane’s use and abuse of liquor. He has the appropriate attitude to his responsibility to his patrons to ensure their safety, and he appears to be committed to the overall object of the Act.

[9] We find that the ground for the application has been established. This is almost inevitable when managers incur convictions against the drink driving laws.

[10] The next issue is whether it is desirable to make an order for suspension. That particular balancing exercise is not quite so straight-forward. In terms of the establishment of the ground, any manager who is convicted for any offence involving the abuse of liquor will inevitably place his General Manager’s Certificate at risk.

[11] In this case Mr Culhane has been ably supported by Mr Muir. There are few persons who have appeared before us with such an impeccable record, and with such a supportive referee. In the light of the way in which he has dealt with this matter, and the actions he has taken, and bearing in mind the breath/alcohol level, we believe that it is more appropriate in this case to adjourn the application pursuant to s.135(7) of the Act.

[12] We note that Mr Culhane’s General Manager’s Certificate falls due for renewal in approximately two months time. In coming to our decision we are not unmindful of a previous decision in Martin Ferguson v Alastair Robert Lyon LLA PH 57/03 in which we said 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 the maximum term of six months. 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.

[13] In this case we believe that the circumstances are sufficiently unique as to make it an exception to the majority of cases which come before us. The application will be adjourned for six months. This will give Mr Culhane the opportunity to continue to remedy the matters which brought about the conviction in the first place. If after six months time there are no other such incidents, then the application will be taken no further. If there are other incidents then clearly a further public hearing will be necessary.

[14] The application is adjourned accordingly.

DATED at WELLINGTON this 1st day of April 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Paul Culhane.doc(afw)