Seymour v McPherson [2004] NZLLA 348 (27 May 2004)

Last Updated: 27 March 2010

Decision No. PH 348/2004

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 068/GM/71/03 issued to MARTIN ROBINSON MCPHERSON

BETWEEN BRIAN DOUGLAS SEYMOUR

(Police Officer of Alexandra)

Applicant

AND MARTIN ROBINSON MCPHERSON

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at QUEENSTOWN on 12 May 2004

APPEARANCES

Sergeant I C Temple - NZ Police - applicant
Mr M R McPherson - respondent
Ms T J Surrey - Queenstown-Lakes District Licensing Agency Inspector - to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application for the suspension of a General Manager’s Certificate issued to Martin Robinson McPherson. The ground for the application is that the manager’s conduct has been such as to show that he is not a suitable person to hold the certificate. In particular it is alleged that Mr McPherson was convicted of a charge of driving with excess breath alcohol.

[2] Mr McPherson is a mature person. He has held his General Manager’s Certificate since 29 April 2003. For the last 18 months he has been employed at “Waitakere Creek Wines” which is a winery at Gibbston near Queenstown. Mr McPherson has become a valued member of the winery team, and has a supporting reference from the company which operates the winery. Mr McPherson is also a member of the Alexandra Community Board of the Central Otago District Council.

[3] As a consequence, the conviction for driving after drinking received extra publicity because of the fact that Mr McPherson was a publicly elected official.

[4] The evidence is that on or about 26 September 2003, Mr McPherson was stopped as a driver of a motor vehicle. He was subjected to an evidential breath test which resulted in a reading of 562 micrograms of alcohol per litre of breath. Mr McPherson pleaded guilty and was convicted in the Alexandra District Court on 14 October 2003, and was fined and disqualified. This is the only matter of concern in relation to Mr McPherson’s otherwise good character.

[5] Mr McPherson has read a set of submissions prepared for him on legal advice. The application for suspension is opposed on the grounds that:

• [a] The breath alcohol reading was relatively low.
  
• [b] The incident was isolated, and completely out of character.
  
• [c] Mr McPherson has suffered more adverse publicity than other offenders for similar charges.
  
• [d] He works on a part time basis at the winery and has produced a reference.
  
• [e] Mr McPherson had believed that he was unaffected by alcohol when he elected to drive. It was therefore submitted that in all the circumstances a suspension may not be appropriate.
  

[6] Section 4 of the Act reads:

4 Object of Act

(1) The object of this Act is to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse, so far as that can be achieved by legislative means.

[7] Section 4(2) is relevant to this case. It requires that the Authority, every District Licensing Agency and any Court hearing any appeal against any of the Authority’s decisions shall exercise its jurisdiction, powers and discretions under the Act in a manner that is most likely to promote the object of the Act. The Authority has determined in the past that one of the ways of establishing a reasonable system of control over the sale of liquor to the public, with the aim of contributing to the reduction of liquor abuse, is to ensure that managers have high standards on both sides of the bar. They are the people who are on duty at all times when liquor is being sold to the pubic. In terms of s.115 of the Act they are responsible for compliance with the Act.

[8] The Authority, District Licensing Agencies, and the Police, have high expectations of all managers. They are the people who should be able to resist the temptation to turn a blind eye to any potential breach of the Act or of the licence and consequential abuse of liquor.

[9] It is because of these reasons that the Authority has stressed the need for standards of managers to be raised. Although the decision was given prior to the amendment to the Act, the principle is nowhere better stated than in Deejay Enterprises Limited LLA 531 – 532/97. In that case 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."

[10] In the decision of Alastair Robert Lyon LLA PH 57/03, the Authority stated:

“In our view 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.”

[11] In this case the submissions from Mr McPherson have been persuasive. We accept his general submission that he comes before the Authority as a person of otherwise good character. The cases which he presented, are all applications by persons for a new General Manager’s Certificate, or for a renewal of a General Manager’s Certificate. There are no cases involving an application for suspension of the certificate.

[12] We take the view that Mr McPherson is entitled to some leniency for his otherwise good character, but that a period of suspension is appropriate, particularly as the incident happened during the first year’s operation of the manager’s certificate. We accept that not every person who offends in this way may have their manager’s certificate suspended, but we see no particularly exceptional circumstances in this case.

[13] For the reasons that have been stated the General Manager’s Certificate will be suspended for a period of two weeks from Wednesday 12 May 2004.

DATED at WELLINGTON this 27th day of May 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Martin McPherson.doc(afw)