Ivamy, re [2004] NZLLA 397 (9 June 2004)

Last Updated: 5 April 2010

Decision No. PH 397/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by DAILEE JANE IVAMY 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 BLENHEIM on 1 June 2004

APPEARANCES

Miss D J Ivamy - applicant
Mr G R Congdon - Marlborough District Licensing Agency Inspector - to assist

ORAL DECISION OF THE AUTHORITY

[1] The object of the Sale of Liquor Act is contained in s.4 of the Act. It 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. Pursuant to s.4(2) of the Act, this Authority is required to exercise its jurisdiction, powers and discretions in a manner that is most likely to promote the object of the Act. In attempting to promote the object of the Act, the Authority has tried (in conjunction with the reporting agencies) to raise the bar in relation to the standards set by managers. As a consequence there are high expectations of what managers are required to achieve. In a case known as Deejay Enterprises Limited LLA 531 – 532/97 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."

[2] Against that background we are required to consider an application by Dailee Jane Ivamy for a General Manager’s Certificate. There are a number of criteria to which we must have regard in considering the application. These criteria are contained in s.121 of the Act and are:

(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.

[3] Miss Ivamy is just 21 years of age. She has received relevant training with Brett Jones and Associates Limited. She has been working as a bar person for some six months or so in a licensed premises in Picton known as “The Yacht Club”. She has the full support of the manager of that premises as well as from her mother, both of whom have seen fit to appear before the Authority to support her. Mr Harward is the manager of “The Yacht Club” and he has been working with Miss Ivamy since “The Yacht Club” took over the existing business in October of last year. It is his view that Miss Ivamy has had no difficulty in working at the bar on her own, although there were certificated managers in the building. He trusts her implicitly to ensure that prohibited persons are not served. In other words he believes that Miss Ivamy is suitable to hold a General Manager’s Certificate.

[4] The only outstanding issue relates to two convictions recorded against Miss Ivamy for an incident involving her driving with excess breath alcohol in September last year. The Police quite properly objected to the manager’s certificate based on the two convictions, although they have not appeared to support the objection. When she made her application, Miss Ivamy disclosed that she did have a conviction for drink driving on 8 December 2003, and had lost her licence for some 10 months and had been ordered to do 120 hours of community work. The facts show that Miss Ivamy was stopped and produced the level of approximately 900 micrograms of alcohol per litre of breath. She was eventually allowed to be released after being processed. She then drove again in order to get her car home. She was stopped again and on that occasion her level was over 700 micrograms of alcohol per litre of breath. She was disqualified for 10 months and ordered to carry out 120 hours of community work. It is accepted that the two convictions do not necessarily represent a pattern of offending, but on the other hand, they do represent quite serious involvement with liquor abuse.

[5] Miss Ivamy advised that she has been to a drug and alcohol clinic, and that the assessment revealed that there was no underlying issue with the use and abuse of liquor.

[6] The question before the Authority is at what stage Miss Ivamy should qualify to hold a General Manager’s Certificate. We accept in general the submissions or arguments advanced on her behalf that she should be given an opportunity to get ahead, and to make something of her own career. On the other hand the Authority has previous decisions which are well-known if not accepted in the industry. One of the decisions is that of G L Osborne LLA 2388/95 in which is was stated:

“Less serious convictions are also weighed, by way of example is an isolated excess breath or 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.”

It will be recalled that in that decision the Authority indicated that for a person to be regarded as suitable, a five year period free of any serious conviction was a prerequisite. We are prepared to accept that although there was a very high reading, that because of the support that Miss Ivamy has, two years may be a satisfactory period for her to prove that she is qualified and suitable, and that there is no underlying issue with the irresponsible use of alcohol.

[7] We think that the period should run from the date of offending rather than the date of conviction. In cases like this we are often keen to adjourn proceedings to give people an opportunity to be appointed as a temporary manager, and for their involvement in the industry to be monitored by the reporting agencies. However we have never adjourned any application for more than 12 months. This offending occurred some nine months ago. For us to adjourn the proceedings for 12 months would still take the period of offending well within that two-year limit. We regret therefore that notwithstanding the supportive references that Miss Ivamy has, we have to decline the application today. On the other hand we accept that opportunities should be made available for people to enter the industry if possible.

[8] By way of a scenario it may be possible for Miss Ivamy to make a further application in six months time. That application could be placed on hold for a period of a further six months. During that time we would suggest that she be given the opportunity to be appointed as a temporary manager pursuant to s.128 of the Act. That is of course provided the criteria in s.128 have been met. After that period of time it may be that the reporting authorities could look at the matter in a more positive light. If that is the case, the application could be granted “on the papers”. In the meantime however as far as the Authority is concerned we feel bound to deal with the matter in the way that is consistent nationally.

[9] Because of the recent conviction involving liquor abuse, the application must be declined.

DATED at WELLINGTON this 9th day of June 2004

B M Holmes

Deputy Secretary

Ivamy.doc(nl)