Hepburn v Mccauley [2004] NZLLA 491 (27 July 2004)

Last Updated: 18 July 2010

Decision No. PH 491/2004

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 or cancellation of General Manager’s Certificate number GM/069/035/2002 issued to PETER FRANCIS MCCAULEY

BETWEEN MARTIN CLAUD HEPBURN

(Police Officer of Dunedin)

Applicant

AND PETER FRANCIS MCCAULEY

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at DUNEDIN on 12 July 2004

APPEARANCES

Sergeant M C Hepburn - NZ Police - applicant
Mr P F McCauley - respondent
Mr A S Mole - Dunedin District Licensing Agency Inspector - to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by the Police for the suspension or cancellation of a General Manager’s Certificate issued to Peter Francis McCauley. The ground for the application is that Mr McCauley’s conduct has been such as to show that he is not a suitable person to hold the certificate.

[2] The facts to support the application show that on 29 May 2003 Mr McCauley was apprehended as part of a random stopping operation. There was no traffic offence. Mr McCauley was breath tested and produced a level of 637 micrograms of alcohol per litre of breath. Mr McCauley was subsequently convicted in the District Court in Dunedin on 9 June 2003 and was fined and disqualified. The offence was aggravated by the fact that he has a relatively historical conviction in 1997 for similar offending. On the previous occasion the breath alcohol level was 960 micrograms of alcohol per litre of breath.

[3] Mr McCauley has explained how the offending came about. It was his last day of work and he was to meet his employer for a drink after completing a very busy day and to say goodbye. It so happens that he over indulged and went to bed, having arranged to meet his wife after catching a bus. He got up at some stage in the evening and found that he was hungry and drove off to get some food from the local “KFC”.

[4] Mr McCauley has a good history of working in the hospitality industry. There is other suggestion of liquor abuse. Mr McCauley works at the “Statesman” and has done so for five years having gained his General Manager’s Certificate on 11 February 2002. This was subsequently renewed for three years. There has been a change of ownership and Mr McCauley’s main duties are as a day time duty manager, and the running of the casino, as well managing the licensed premises.

[5] Mr McCauley has asked the Authority not to interfere with his General Manager’s Certificate. He says that he is dependent upon it for his employment and is not in a position at his age of 53 to start a new career. We accept in general the evidence that he has given, although we have only heard from the employer by written reference.

[6] The issue then is whether it is desirable that the General Manager’s Certificate be suspended as a form of deterrent to other managers. A suspension would also underline the message to all managers that if they are convicted of any offence involving liquor abuse, then they place their General Manager’s Certificates at risk.

[7] The object of the Act is broadly to reduce liquor abuse. Pursuant to s.4(2) of the Act, the Authority is required to make its decisions or exercise its jurisdictions in a manner that is most likely to promote the object of the Act. The Authority has stated in the past that it is has 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 the licence, and consequential abuse of liquor. The principle is best stated in a decision of Deejay Enterprises Limited LLA 531 – 532/97 in which 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."

[8] The issue is whether Mr McCauley’s case should be an exception to the general rule that those apprehended for drink driving must expect their certificates to be suspended for a period.

[9] In this case we have not been satisfied that exceptional circumstances exist, although because of the circumstances described above, we are prepared to reduce the normal period by one half. The decision of the Authority is to suspend the General Manager’s Certificate for 14 days.

[10] Accordingly for the reasons stated the General Manager’s Certificate GM/069/035/2002 issued to Peter Francis McCauley will be suspended for 14 days from 6.00 am on Monday, 16 August 2004.

DATED at WELLINGTON this 27th day of July 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Peter McCauley.doc(afw)