Loye v Finau [2005] NZLLA 312 (19 May 2005)

Last Updated: 14 March 2010

Decision No. PH 312-313/2005

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 005/12/2004 issued to MASELINO FINAU

BETWEEN JASON PETER LOYE

(Police Officer of Waitakere City)

Applicant

AND MASELINO FINAU

Respondent

AND

IN THE MATTER of an application by MASELINO FINAU 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 May 2005

APPEARANCES

Senior Constable J P Loye - NZ Police - applicant and in opposition to application for renewal of manager’s certificate
No appearance by or on behalf of respondent and applicant for renewal of manager’s certificate

Mr J P Sheehan - Waitakere City District Licensing Agency Inspector - in opposition to application for renewal of manager’s certificate

ORAL DECISION OF THE AUTHORITY

[1] On 21 January 2004, Maselino Finau was granted his General Manager’s Certificate by the North Shore District Licensing Agency. All manager’s certificates are initially granted for a period of one year. This is often described as a probationary year during which the applicant’s performance and conduct may be the subject of monitoring.

[2] On 14 October 2004, approximately nine months later, Mr Finau was the driver of a motor vehicle travelling in Albany. He was stopped at an alcohol check point, and subsequent breath test procedures resulted in a sample of his breath being found to contain 607 micrograms of alcohol per litre of breath.

[3] Mr Finau described himself at the time as an assistant manager. He was duly processed, and was due to appear in the District Court on 1 November 2004. Mr Finau completed an application for the renewal of his General Manager’s Certificate on 21 October 2004. He was able to state at that time that he had not been convicted for any offence. As it happens he came before the District Court on Monday 1 November 2004, when he was convicted and fined and disqualified.

[4] The application for renewal, although dated 21 October was not received by the Waitakere City Council until 8 November 2004. In his application for renewal, Mr Finau said that he was the assistant grocery manager of “Countdown”, Westgate. Senior Constable Jason Peter Loye is the liquor licensing officer for the Waitakere City District. When he received the copy of the application for renewal he noted that the place of employment being “Countdown Supermarket” was in an area covered by the Waitakere Licensing Trust. He was therefore aware that there would be no liquor licence issued to that supermarket.

[5] This was confirmed to some extent by Mr Jason Paul Sheehan, the District Licensing Agency Inspector for the Waitakere City. Mr Sheehan contacted “Countdown” in Westgate on 4 March 2005, and was advised that the applicant was no longer employed at this site. He then went to the trouble of contacting Progressive Enterprises Limited, and the company advised that Mr Finau had transferred to “Woolworths” in Gisborne. He then made contact with that organisation, but was advised that Mr Finau had ceased all employment with Progressive Enterprise Limited, and had left no contact details.

[6] As a consequence of the conviction, and to a lesser extent the fact that Mr Finau did not appear to be working in the industry, Senior Constable Loye made application for the suspension or cancellation of Mr Finau’s General Manager’s Certificate. The application was made on the grounds that Mr Finau’s conduct was such as to show that he is not a suitable person to hold the certificate.

[7] The Authority is therefore faced with two applications. The first is the application for suspension or cancellation of the General Manager’s Certificate, and the second is Mr Finau’s application to renew that certificate.

[8] The criteria concerning the renewal are set out in s.126 of the Act. The relevant criteria relate to any convictions recorded against the applicant since his certificate was issued, and also any matters dealt with in any report. Both the Police and the Inspector have made reference to previous decisions of the Authority to the effect that if a person is no longer in the industry, it is unlikely that they will continue to hold the privilege of a General Manager’s Certificate. An exception will be if they can show that there is some current expectation of returning to the industry.

[9] In this case Mr Finau has been unable to be contacted. Indeed the notices of hearing have been returned to the Authority’s Secretariat. Mr Finau is not present, and in those circumstances, it may be inferred that he has no further interest in maintaining his General Manager’s Certificate. He may well have never had the opportunity of using it, since it was granted in January 2004.

[10] We propose therefore to find that the grounds for the application for suspension or cancellation have been made out, and accordingly the General Manager’s Certificate will be cancelled. The application for renewal becomes redundant, but will nevertheless be refused.

DATED at WELLINGTON this 19th day of May 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

Maselino Finau.doc(aw)