Lally v Fulton [2004] NZLLA 829 (30 November 2004)

Last Updated: 23 January 2012

Decision No. PH 829/2004

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 the cancellation of General Manager’s Certificate number GM/223/94 issued to ALAN WILLIAM FULTON

BETWEEN CHRISTOPHER DAVID LALLY
(Police Officer of Papakura)

Applicant

AND ALAN WILLIAM FULTON

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 22 November 2004

APPEARANCES

Constable C D Lally – NZ Police – applicant
Mr P D Swain – for respondent
Mr P Radich – Manakau District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application brought by the Police for the cancellation of a General Manager’s Certificate issued to Alan William Fulton.

[2] The ground for the application is that Mr Fulton’s conduct has been such as to show that he is not suitable person to hold this certificate. The basis on which the allegation is made is that on 25 December 2003, Mr Fulton was stopped at a Police checkpoint. He underwent the breath test procedures, and produced a reading of 889 micrograms of alcohol per litre of breath. His driver’s licence was immediately suspended for 28 days. Approximately three months later on 18 March 2004, in the Manukau District Court, Mr Fulton was convicted and fined $600 and disqualified for holding or obtaining a driver’s licence for six months. Mr Fulton had a previous conviction for similar offending back in 1992.

[3] Mr Fulton’s General Manager’s Certificate was first issued 10 years ago on 22 February 1994. When he made his application for the renewal of his General Manager’s Certificate in January of this year, he had been apprehended but not convicted. He attached a letter to the District Licensing Agency Inspector confirming that this had happened. The application was forwarded to the Police for comment, and no objection was received to the renewal, notwithstanding the information that a charge was pending. Accordingly, Mr Fulton’s General Manager’s Certificate was renewed until 22 February 2007. When a new Policing unit was formed, it was noted that Mr Fulton was the subject of a charge, and an application pursuant to s.135 was filed.

[4] Mr P D Swain has been appointed as agent to represented the interests of Mr Fulton. He contended that it was an unreasonable exercise of power for Mr Fulton to suffer a suspension approximately 12 months after the event. His submission was that had the Police objected to the renewal of his General Manager’s Certificate, it is probable, given previous decisions of the Authority, that a truncated or reduced period of renewal would have been imposed. Mr Swain novel argument has found favour with the Police and with the District Licensing Agency Inspector.

[5] Because of the special circumstances, and in particular Mr Fulton’s openness in disclosing the potential conviction, all parties are of the view that an appropriate sanction in the circumstances would have been a reduced period of renewal of the General Manager’s Certificate. We are prepared to accept this proposed compromise. We, therefore, intend to deal with the cancellation application in this way. The application itself will be adjourned for six months pursuant to s.135(7) of the Act. If there are no further matters raised by any of the parties during this time, then it will be deemed to have been withdrawn.

[6] We have taken it upon ourselves, (with the consent of all parties) in the special circumstances of this case, to review the decision to renew the General Manager’s Certificate for three years. All parties have agreed that it should have been renewed for a period of 18 months, that is to 22 August 2005, in approximately nine months time. We think that is appropriate.

[7] We request that the District Licensing Agency amend its records accordingly, so that the agreed sanction can accordingly be applied.

DATED at WELLINGTON this 30th day of November 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Fulton.doc(ac)