O'Donnell [2005] NZLLA 752 (3 November 2005)

Last Updated: 22 January 2012

Decision No. PH 752/2005

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by DESMOND SEAN O’DONNELL 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 DUNEDIN on 26 October 2005

APPEARANCES

No appearance by or on behalf of applicant
Mr A S Mole – Dunedin District Licensing Agency Inspector - in opposition
Sergeant M C Hepburn - NZ Police - in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Desmond Sean O’Donnell pursuant to s.118 of the Act for a General Manager’s Certificate. The criteria to which we must have regard 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] The relevant criteria in this case are (b) and (d). Both the Police and the Inspector have opposed the application on the ground of a conviction recorded against the applicant for an assault with a blunt instrument that took place on 27 August 2004. The seriousness of the assault was indicated by the fact that it is his only conviction and he was sentenced to six months imprisonment.

[3] Sergeant Hepburn informed us that Mr O’Donnell had previously owned and operated two licensed premises in Dunedin known as the “Woolshed Bar and Grill” and “The Mission”. Both premises had been under close scrutiny by the Police and the Inspector. As a consequence of that scrutiny an application pursuant to s.132 of the Act was lodged against both premises. Prior to the hearing for those matters, the premises were sold and the applications were withdrawn. However, while preparing for the hearing the Police and the Inspector realised that Mr O’Donnell was not, and never had been, appointed as a certified manager although he had been a hands-on licensee and duty manager on his premises for eight years.

[4] The Inspector reported that he had written to Mr O’Donnell in December 2004 advising him that he had suspended his application for a General Manager’s Certificate because the reference provided by Mr O’Donnell was inadequate, and that the Police had also opposed his application. The Inspector stated that he did not receive a reply.

[5] The Police submitted correctly that the Authority had an expectation that managers will be persons of integrity who will set an example to patrons and uphold the law. In support of that submission Sergeant Hepburn referred to the Authority’s decision in Martin Ferguson v Alister Robert Lyon PH 57/2003. In that decision we said at paragraph [15] after citing section 4 of the Act:

One of the ways of establishing a reasonable system of control over the sale of liquor to the public, with the aim of contributing to the reduction of liquor abuse, is to ensure that all managers have high standards on both sides of the bar. They are the people who are on duty at all times when liquor is being sold. They are ultimately responsible for compliance with the Act, and the conditions of the licence.

[6] We went on to say at paragraph [18]:

“There have been a number of cases where the Authority has stressed the need for the standards of managers to be raised. Nowhere is this principle better stated than in Deejay Enterprises Limited LLA 531-532/97. The Authority said:

"The guiding hand or hands-on operator of any company or the potential holder of a General Manager's Certificate now receive greater scrutiny from both the Police and other reporting agencies. Character and reputation are closely examined. The law and human desires of patrons frequently tug in different directions. The Police cannot be everywhere. Little but a licensee's or manager's character and suitability may stand between upholding the law and turning a blind eye. Self imposed standards in accordance with the law must be set by licensees and holders of General Manager's Certificates who control and manage licensed premises."

[7] It is apparent that Mr O’Donnell had been operating his premises contrary to the requirement of the law that a certified manager shall be on duty at all times. Mr O’Donnell’s conviction also calls into question his suitability to be the holder of a General Manager’s Certificate. In Valesha Anna Marx LLA 946-947/97 the Authority said that in considering the effect of convictions on the suitability of an applicant for a General Manager’s Certificate added weight is given to any conviction for assault or violence offences against any person.

[8] Mr O’Donnell did not appear at the hearing to support his application. By his absence, and particularly following his failure to respond to the Inspector’s letter, we can only conclude that he no longer wishes to pursue his application.

[9] In all the circumstances, Mr O’Donnell’s application for a General Manager’s Certificate is refused.

DATED at WELLINGTON this 3rd day of November 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

Desmond O’Donnell.doc(jc)(aw)