Mcdowell, re [2004] NZLLA 593 (24 August 2004)

Last Updated: 3 October 2010

Decision No. PH 593/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by DENISE MARION MCDOWELL 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 12 August 2004

APPEARANCES

Mrs D M McDowell - applicant
Mrs J W Edwards - Waitakere District Licensing Agency Inspector - in opposition
Senior Constable J P Loye - NZ Police - to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Denise Marion McDowell for the renewal of her General Manager’s Certificate. Mrs McDowell has held a certificate since 1986. At that time she worked at licensed premises in Auckland, and continued to do so until approximately 1992. Mrs McDowell had no further involvement with the hospitality industry from 1992 until the present, a period of approximately 12 years.

[2] Once the Inspector had established that she had not worked in the industry for such a long period, an adverse report was filed. While the Inspector had no doubt that Ms McDowell’s record in the industry was very good, and that she had her own personal reasons for being out of the industry for 12 years, he took the view that the matter should be dealt with by the Authority. He noted that in previous decisions, the Authority had clearly stated that managers’ certificates were not to be regarded as bankable resources to be used as an entry card to automatic employment.

[3] The Inspector made several attempts to contact the applicant to see whether employment had been gained so that if possible the opposition could be withdrawn.

[4] Mrs McDowell has given evidence. She said that her daughter is now 12 and is reaching the stage where this will give Mrs McDowell the freedom to go back into the vocation which she enjoys. She said that she had studied the new 1989 Act, but that she had not really considered whether to have further training. She said that she would like to have her manager’s certificate renewed so that she could get back into the industry. It was not clear from her evidence when this might happen or with which employer she hopes to work.

[5] The criteria to which the Authority shall have regard when considering a renewal application are:

(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 s.124 of the Act.

[6] In terms of character and reputation Mrs McDowell qualifies to be the holder of a General Manager’s Certificate. She has no convictions recorded against her. However there is no evidence that she has managed licensed premises in the last three, if not 12 years with the aim of contributing to the reduction of liquor abuse.

[7] In previous decisions, the Authority has ‘raised the bar’ for general managers. This is partly because of the amendment to s.115 of the Act passed on 1 April 2000. Pursuant to that amendment the sole responsibility for upholding the law and the conditions of the licence was reposed in the holders of General Manager’s Certificate. They therefore assumed a greater responsibility for host responsibility and/or the safety of patrons than the licensee.

[8] As a consequence, the Authority has issued a number previous decisions setting out reasons why managers’ certificates are to be regarded as living documents. The Authority has always taken the view that without the requisite experience, it would be wrong to issue a General Manager’s Certificate which could then be used as a reference for future employers. Employers about to offer employment to a person holding a certificate would expect that person to have recent experience, and also knowledge of the Act, and in particular, understand the responsibilities expected of the holder of a General Manager’s Certificate. After all such a person is to be trusted with the sole running of the licensed premises. If problems occur, the employer’s licence can be placed at risk. In New Zealand, there are approximately 30,000 holders of General Manager’s Certificates in existence. It is difficult to ensure that all those persons are upskilled and aware of their responsibilities.

[9] It would be wrong in our view to renew this certificate in view of the fact that the applicant has been out of the industry for 12 years. Once she has obtained further training of the type expected for an applicant for a General Manager’s Certificate, and once she has gained further experience, then of course her suitability would not be questioned.

[10] The position is this. Before Mrs McDowell can expect to get back into the industry in a managerial capacity, she will be required to gain experience working in licensed premises. She will need to have the full support of an employer who is prepared to place his or her licensed premises and the licence, in the sole hands of the applicant. It is for these reasons and for the lack of any involvement in the industry, that the renewal on this occasion must regretfully be declined.

[11] We confirm however that that finding is not infinite. Mrs McDowell is welcome to reapply once she has employment in the industry, the support of an employer, and has undergone retraining.

DATED at WELLINGTON this 24th day of August 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Denise McDowell.doc(afw)