Hepburn v Fitzsimmons [2004] NZLLA 492 (27 July 2004)

Last Updated: 5 July 2010

Decision No. PH 492/2004

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/069/351/2001 issued to HUGO SAMUEL FITZSIMMONS

BETWEEN MARTIN CLAUD HEPBURN

(Police Officer of Dunedin)

Applicant

AND HUGO SAMUEL FITZSIMMONS

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
No appearance by or on behalf of respondent

ORAL DECISION OF THE AUTHORITY

[1] This is an application brought by the Police for the suspension or cancellation of a General Manager’s Certificate issued to Hugo Samuel Fitzsimmons. The ground for the application is that the conduct of the manager has been such as to show that he is not a suitable person to hold the certificate.

[2] The evidence received by the Authority is that Mr Fitzsimmons was first granted a General Manager’s Certificate on or about 24 August 2001. The certificate was subsequently renewed a year later. Mr Fitzsimmons was part of a company which held an off-licence in respect of premises in North Road, Dunedin. That off-licence was granted in October 2001.

[3] Encouraged by the success of that business Mr Fitzsimmons submitted a further application for an off-licence on 20 December 2002 in respect of new premises to be situated in Cumberland Street, Dunedin. Mr Fitzsimmons was to be the sole director and shareholder of the company. The premises were situated in the central university area and required a Resource Consent. However Mr Fitzsimmons was clearly keen to start the business at about the time of the commencement of the university year.

[4] Prior to obtaining a Resource Consent and prior to obtaining his off-licence Mr Fitzsimmons began trading on 12 February 2003. He was subsequently apprehended for being an unlicensed person selling liquor. On 28 March 2003 Mr Fitzsimmons was fined $250. It is noted that the Court made an order suppressing his name and although it might be appropriate for this Authority to do likewise it can only do so pursuant to s.107(5) of the Act. According to subs.(5) no order can be made prohibiting the publication of the names and descriptions of the parties to the matter. In this case Mr Fitzsimmons is the respondent.

[5] The evidence shows that following the conviction, the Police advised Mr Fitzsimmons that an application for suspension or cancellation of the certificate would be made because he was no longer considered to be suitable. Mr Fitzsimmons indicated that he was getting out of the industry in any event and leaving for overseas.

[6] Sergeant Martin Claud Hepburn has advised that to the best of his knowledge Mr Fitzsimmons is now overseas. The respondent has not appeared to resist the current application. Prior to leaving, he handed back his manager’s certificate to the District Licensing Agency. There is no administrative ability to cancel the licence in this way. Initially the Police were looking for a period of suspension, but in view of the fact that Mr Fitzsimmons is now overseas and is not represented, the Authority has no hesitation in making an order that General Manager’s Certificate GM/069/351/2001 is now cancelled.

DATED at WELLINGTON this 27th day of July 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Hugo Fitzsimmons.doc(afw)