Harris, re [2004] NZLLA 372 (2 June 2004)

Last Updated: 2 April 2010

Decision No. PH 372/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by DAVID ALEXANDER HARRIS pursuant to s.123 of the Act for the renewal of a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at PAIHIA on 26 May 2004

APPEARANCES

Mr W Puriri – agent for applicant

Sergeant J Rogers – NZ Police – in opposition
Mrs L A Little – Far North District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] David Alexander Harris applies to renew his General Manager’s Certificate. He was originally granted a certificate on 7 October 2002. The application before the Authority is therefore the first renewal since the certificate was granted. Because the period under review is known as a “probationary” period, the application will normally be given closer attention by the reporting agencies and the Authority.

[2] The application for renewal attracted an adverse report from the Police. The letter from the Police stated that the Police had objections to the renewal of the General Manager’s Certificate. The letter was subsequently expanded upon by the Police. In her report dated 18 March 2004, Mrs L A Little, the Far North District Licensing Agency Inspector, supported the Police opposition.

[3] Mr W Puriri submitted that the Police letter of opposition was not a report under s.124(2) of the Act, and that therefore the Inspector has a duty to grant the application. We reject the argument on the basis that there is no required form for such a report. What the report needs to contain are details of any “matters in opposition”. In this case, the details were sparse but no doubt could have been obtained on request. As we explained to Mr Puriri the matter had to come before the Authority as a result of the Inspector’s report as any event. Furthermore, pursuant to s.108 of the Act, any member of the Police has the right to appear and be heard in any proceedings before the Authority.

The Factual Background

[4] According to a reference from Ms Z Cameron, the proprietor of “The Kaikohe Hotel”, Mr Harris has worked there for two years as a manager of the wholesale department, and quite often the hotel. In July 2002, Mr Harris and his partner were granted an on-licence for a nightclub in a section of the hotel which had been leased to them from the licensee. The running of the nightclub as well as trying to assist in the management of the hotel turned into challenge which was too much for Mr Harris to handle.

[5] The Police evidence consisted of a series of incidents which were connected directly or indirectly with the running of the nightclub. It is unnecessary to detail the incidents. Suffice to say that there were nine incidents between August 2002 and June 2003. There were allegations of disorder and/or intoxication. Even Mr Harris’s health was affected. Furthermore, the nightclub appeared 14 times in the Last Drink Survey between October 2002 and August 2003. Mr Harris was prosecuted in the District Court for a breach of the Act, and received diversion.

[6] When the on-licence fell due for renewal, the Police objected and the file was sent to the Authority in Wellington for determination by public hearing. However, Mr Harris subsequently withdrew the renewal application and the licence lapsed. When he gave evidence, Mr Harris did not accept responsibility for all the incidents. Nevertheless, he seemed to acknowledge that the episode had not been successful and would not be repeated. The impact of the evidence was sufficient to raise doubts about Mr Harris’s suitability to hold a General Manager’s Certificate.

The Legal Principles

[7] 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 the future all managers would be responsible for ensuring that the premises complied not only with the Act, but also with the conditions of the governing licence.

[8] 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 management of licensed premises would be conducted only by persons of integrity, committed to supervising the sale and supply of liquor, and concerned to give new meaning to the term “host responsibility”. The ultimate aim was to achieve the Act’s objective of reducing the incidence of liquor abuse.

[9] In this case, the Authority is governed by s.126 of the Act. That section reads:

In considering any application for the renewal of a manager’s certificate, the Licensing Authority shall have regard to the following matters:

(a) The character and reputation of the applicant:

(b) Any convictions recorded against the applicant since the certificate was issued or last renewed:

(c) The manner in which the manager has managed the sale and supply of liquor pursuant to the licence with the aim of contributing to the reduction of liquor abuse:
(d) Any matters dealt with in any report made under section 124 of this Act.

[10] In Noel Justin Allen LLA 1388/97 the Authority had this to say:

“Following the introduction of a competitive regime on 1 April 1990 under the new Act, the Authority allowed a settling in period. In more recent years, we have endeavoured to gently raise the requisite standards both of licensees and the holders of Manager’s Certificates in order to improve both knowledge of the Sale of Liquor Act, and the conduct of licensed premises. As Dormer, Sherriff, and Crookston “Sale of Liquor” (Butterworths 1990) state in their text introduction at para 22 “licences will be easier to get and easier to lose.” Provisions for Manager’s Certificates should, in our view, follow a similar pattern.”

Decision

[11] In this case Mr Harris gave an undertaking that if granted the renewal of his certificate for a limited period, he would only use the certificate in managing off-licence premises. The Authority has previously drawn a distinction between the two types of premises. It is clear there is less likelihood of any increase in liquor abuse (particularly intoxication) in respect of the operation of an off-licence.

[12] Both the Police and the District Licensing Agency Inspector accepted that such a result would be in keeping with the object of the Act and would ensure that Mr Harris could continue in the industry. It may be that he can occasionally be appointed as an acting manager provided the criteria in s.129 of the Act are observed. In the light of the undertaking, we expect this provision would be used sparingly.

[13] Mr Puriri took further instructions from Ms Cameron and advised that the proposed compromise was acceptable. In coming to this decision we have taken into account the remorse shown by Mr Harris, the loss of the business, and consequent break up of a relationship. He has suffered reasonably severely, and lessons will have been well and truly learned. If there are no adverse reports at the next renewal, Mr Harris can be relieved of his undertaking.

[14] For the reasons we have stated, the application for the renewal of Mr Harris’s General Manager’s Certificate is granted for eighteen months to 7 April 2005.

DATED at WELLINGTON this 2nd day of June 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

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