Loye v Tokuyama [2006] NZLLA 285 (19 April 2006)

Last Updated: 14 March 2010

Decision No. PH 285/2006 –
PH 286/2006

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 of General Manager’s Certificate number GM 007/1363/04 issued to MAKOTO TOKUYAMA

BETWEEN JASON PETER LOYE

(Police Officer of Auckland)

Applicant

AND MAKOTO TOKUYAMA

Respondent

AND

IN THE MATTER of an application by MAKOTO TOKUYAMA pursuant to s.123 of the Act for 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 6 April 2006

APPEARANCES

Senior Constable J P Loye – NZ Police – applicant and in opposition to application for renewal of manager’s certificate
Mr M Tokuyama – respondent and applicant for renewal of manager’s certificate
Mr G S Whittle – Auckland District Licensing Agency Inspector – in opposition to application for renewal of manager’s certificate

ORAL DECISION OF THE AUTHORITY

[1] There are two applications before the Authority. The first is an application brought by Senior Constable Jason Peter Loye, a Police Officer of Auckland. He applies pursuant to s.135 of the Act for the suspension of a General Manager’s Certificate issued to Makoto Tokuyama. The application is brought on the grounds that Mr Tokuyama’s conduct has been such as to show a lack of suitability.

[2] The evidence that supported the application is that on or about Sunday 15 May 2005, Mr Tokuyama was found asleep at the wheel of a vehicle with the engine running and the headlights on. The vehicle was stationary in the middle lane of a street. Mr Tokuyama was subjected to a breath test procedure and his breath was found to contain 978 micrograms of alcohol per litre of breath. Mr Tokuyama was subsequently convicted of driving with excess breath alcohol and was fined and disqualified.

[3] There are no previous matters known against Mr Tokuyama. He was first granted a General Manager’s Certificate on 15 December 2004.

[4] The second application is for the renewal of the certificate. The application was filed before the expiry date in December 2005.

[5] Mr Tokuyama is employed as a general manager of a business known as “Soto Japanese Garden Restaurant” which is located in Ponsonby in Auckland. Mr Tokuyama has been in senior management roles in a number of Auckland’s top Japanese restaurants.

[6] At the hearing Mr Tokuyama initially made application for the proceedings to be adjourned so that he could obtain the services of a translator to ensure that he understood fully the legal implications behind the applications, particularly as his General Managers’ Certificate was at risk. In the event he was advised of the general level of sanction which would be expected to follow such a conviction, and he has accepted that this should now happen.

[7] The reason that the applications are before the Authority is part of the continual process of attempting to raise the standards of those charged with the responsibility of managing licensed premises. The expectation is that they will not only ensure the safety of their patrons, but set standards higher than would be normally expected for any other form of employment. It is our expectation that all holders of General Managers’ Certificates will appreciate that a conviction involving the abuse of liquor is not only contrary to the provisions and objective of the Act, but will place the holding of a General Manager’s Certificate at risk.

[8] In the decision of Martin Fergusson v Alastair Robert Lyon LLA PH 57/03 it was stated:

“In our view if managers are guilty of breaches of the drink driving provisions of the Land Transport Act they must expect their certificates to be suspended for a period. The length of the period should represent a balance between the seriousness of the offending and the maximum term of six months. In the majority of cases such a result will be seen by the Authority as a desirable step towards the promotion of the object of the Act.”

[9] In terms of the renewal of the General Manager’s Certificate the criteria are set out in s.126 of the Act. Mr Tokuyama’s character, reputation and the convictions will affect the outcome. However, in our view it would be unreasonable to refuse the application in the light of the isolated offence.

[10] However, in the course of the hearing it was revealed that Mr Tokuyama is not currently the holder of a Licence Controller Qualification. In accordance with the amendment to the Act which came into force on 1 April last, it is not possible for any General Manager’s Certificate to be renewed without the applicant obtaining this qualification.

[11] The only alternative therefore is to adjourn this aspect of the application for a period of two months. In that period of time, provided a Licence Controller Qualification is produced, the renewal will be granted for a period of 18 months only. This means that it will now fall due on 15 June 2007, in a little over 12 months time, provided the qualification is obtained and produced.

[12] If in fact no Licence Controller Qualification is produced within the next two months then a further public hearing will be scheduled with a view to refusing to renew the certificate.

[13] Accordingly, and for the reasons given General Manager’s Certificate number GM/007/1363/04 issued to Makoto Tokuyama is now suspended for a period of one month commencing on Thursday 6 April 2006.

DATED at WELLINGTON this 19th day of April 2006

Judge E W Unwin Mr J C Crookston
Chairman Member

tokuyama.doc (md)