Clark [2005] NZLLA 710 (13 October 2005)

Last Updated: 30 December 2011

Decision No. PH 710/2005

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by STEPHANIE JANE CLARK pursuant to s.118 of the Act for a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at KERIKERI on 30 September 2005

APPEARANCES

Miss S J Clark - applicant
Mr J Thorne - Far North District Licensing Agency Inspector - to assist
Sergeant R D S Laurie - NZ Police - in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Stephanie Jane Clark for a General Manager’s Certificate. There are a number of criteria to which we must have regard and these criteria are set out in s.121 of the Act as follows:

(a) The character and reputation of the applicant:

(b) Any convictions recorded against the applicant:

(c) Any experience, in particular recent experience, that the applicant has had in managing any premises or conveyance in respect of which a licence was in force:

(d) Any relevant training, in particular recent training, that the applicant has undertaken and any relevant qualifications that the applicant holds:

(e) Any matters dealt with in any report made under section 119.

[2] Ms Clark fulfils the majority of these criteria. She is a relatively mature person with an impressive Curriculum Vitae. She has had experience for some time in working behind a bar, although her managerial experience in the conduct of licensed premises is somewhat limited. She has completed a course of training with Spear Hospitality Limited. The only issue for consideration by the Authority are the convictions recorded against her involving liquor abuse. The Police received a copy of the application, and quite properly have brought to our attention the fact that Ms Clark has a historical conviction for drink driving, and a further similar incident which occurred some 15 months ago.

[3] The first incident was in 1993 when Ms Clark was convicted in the Feilding District Court for driving with excessive breath alcohol content. On that occasion the level of alcohol in her breath was 524 micrograms of alcohol per litre of breath. As has been pointed out the conviction and the incident occurred approximately 12 years ago.

[4] The second incident is of greater concern. On 17 June 2004, Ms Clark was again apprehended. On this occasion she was dealt with in the Kaikohe District Court a month later. Her blood alcohol content was 165 milligrams of alcohol per 100 millilitres of blood which is over twice the allowable limit. This is an incident which involved liquor abuse, and clearly is a matter for concern by the reporting agencies.

[5] Ms Clark has written to the Authority and set out some of the personal circumstances which led her to act in this particular way. She said that she has had some counselling about the matter. She has paid the penalty and feels that she is good at her job, and is motivated to do well, although she does have other work as well.

[6] Ms Clark started working for the “Bay of Islands Swordfish Club” on 11 January 2005. There are three references which indicate that she is regarded as reliable, conscientious and honest, and the application is supported by the club to the extent that the fees were paid by it. A subsequent document dated July 2005, confirmed that Ms Clark has a pleasant and happy approach to her duties, is popular with customers and fellow staff, and it is not believed that alcohol is an issue in relation to ability to work confidently and efficiently.

[7] Because the reduction of abuse of liquor is the object of the Act, the Authority is always concerned to try and keep high standards for the holders of General Manager’s Certificates particularly as they are required to be on duty at all times when liquor is being sold. The leading guideline case is In G L Osborne LLA 2388/95 in which it is stated:

"Without fettering ourselves in this or other applications, it may be helpful if we indicate that we commonly look for a five year period free of any serious conviction or any conviction relating to or involving the abuse of alcohol or arising in the course of an applicant’s duty on licensed premises."

[8] The Authority went on to say less serious convictions are also weighed. By way of example is an isolated excess breath or blood alcohol conviction or a single driving offence disclosing no pattern of offending. In these and similar cases the Authority indicated that a minimum of two years from the date of conviction, may result in subsequent favourable consideration providing suitable reports from both the Police and Licensing Inspector are received.

[9] We are on record as saying that in our view, times should run from the date of the incident. As is apparent two years has not elapsed giving Ms Clark the opportunity to show that the incident was isolated, and the lessons have been learned. However in view of the positive aspects which Ms Clark brings to the application we propose not to decline it today. Rather it will be adjourned for a period of nine months. During that period of time we would expect Ms Clark to be offered the opportunity to work as a temporary manager provided the provisions of s.128 of the Act have been complied with. In this way over the next nine months she will gain experience in managing licensed premises, and her ability to do so can be monitored.

[10] If at the end of nine months there are other adverse matters raised with us, then we propose to grant the application on the papers. On the other hand if there are still serious misgivings about Ms Clark’s character and reputation a further public hearing may be necessary.

[11] The application is adjourned accordingly.

DATED at WELLINGTON this 13th day of October 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

Stephanie Clark.doc(aw)