Hubbard, re [2004] NZLLA 547 (13 August 2004)

Last Updated: 2 October 2010

Decision No. PH 547/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by KILEY RENEE HUBBARD 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 Crookston

HEARING at AUCKLAND on 10 August 2004

APPEARANCES

Ms K R Hubbard - applicant
Ms M J McLeod - Auckland District Licensing Agency Inspector - in opposition
Constable K M Skelton - NZ Police - in opposition

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Kiley Renee Hubbard for the renewal of her General Manager’s Certificate. When Ms Hubbard made application for her certificate in July 2003, she disclosed that she had previous offending going back to 1994 and 1996. She also disclosed that she had a driving offence pending. What she did not disclose was that the offence related not just to driving, but driving after drinking to excess. This would have made a difference to her application, because in 1995 Ms Hubbard had been convicted of driving with excess breath alcohol with a level of 565 micrograms of alcohol per litre of breath.

[2] The second conviction for driving with excess breath alcohol was entered on 7 July 2003. The facts show that in January 2003, Ms Hubbard was driving a motor vehicle when she lost control of the vehicle on a wet, slippery road and crashed into a power pole. Breath procedures returned a result of 551 micrograms of alcohol per litre of breath. Ms Hubbard admitted to drinking in a bar. She said that she was driving a friend home before driving herself home. At the hearing, she said she was going to another licensed premises when she was apprehended.

[3] As can be seen, the conviction was entered four days after the General Manager’s Certificate was issued. Both the Agency and the Police had taken the view that the first offending was historical and isolated, and that Ms Hubbard should be given the benefit of any doubt.

[4] When Ms Hubbard made application for the renewal of her General Manager’s Certificate a year later, she was asked whether she had been convicted of any offence since the certificate was issued. Her answer was recorded as ‘no’. That appears to have been quite wrong. Ms Hubbard stated that she was confused by the dates, and had thought that the conviction had occurred prior to her being granted the General Manager’s Certificate. At least the offending had occurred earlier.

[5] All in all it seems to us reasonably apparent that Ms Hubbard gained her General Manager’s Certificate when quite probably it would not have been issued had the full facts been known. We are not at the stage where we can say definitively that the Agency and the Police were misled, although we have to say that the explanations that we have received at the hearing, were less than impressive.

[6] On the other side of the coin Ms Hubbard has been working in the industry, and has found considerable enjoyment if not fulfilment in doing so. More recently she has been on ACC and had to resign from her job because of the time taken off work. She says that she is keen to get back into the industry, although she has been applying for work for the last two months.

[7] As indicated earlier, we have not reached the stage that we should refuse the application for renewal. This is partly because Ms Hubbard has advised us that since the accident she no longer drinks at all. It may be that she still can find a place in the industry. However, the established principle is that manager’s certificates will not be issued in a vacuum. In this case a certificate will only be renewed issued if there is the committed support of an employer who is prepared to trust Ms Hubbard to run licensed premises, in accordance with the conditions of the licence and the Act.

[8] As indicated the issue of suitability is very much alive. In view of the fact that Ms Hubbard may have taken a different direction in life, she will be given a final opportunity to obtain employment to see whether she can justify the faith which was placed in her when the General Manager’s Certificate was issued.

[9] Accordingly the Authority’s decision is to renew the General Manager’s Certificate but only for six months. This means that it will fall due for renewal on 3 January 2005. We might mention that Ms Hubbard may have been under the misunderstanding that because of the opposition, she could not apply for jobs carrying responsibility consistent with the holding of a General Manager’s Certificate. She now has the opportunity but on the clear understanding that if she still not employed in the industry using her General Manager’s Certificate, then a further public hearing will be required following her next application for renewal. In such a situation, the chances of a fresh application being granted, would not be high.

[10] On those limited terms, the application is therefore granted.

DATED at WELLINGTON this 13th day of August 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Kiley Hubbard.doc(afw)