Simpson [2006] NZLLA 891 (13 October 2006)

Last Updated: 25 January 2012

Decision No. PH 891/2006

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by MATTHEW FERGUSON SIMPSON 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: Ms P A Ballard

HEARING at WELLINGTON on 9 October 2006

APPEARANCES

Mr M F Simpson – applicant
Mr R S Putze – Wellington District Licensing Agency Inspector – to assist
Sergeant D A Robson – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] On 1 April this year the Sale of Liquor Act 1989 was further amended to give greater responsibility to those who are the holders of a General Manager’s Certificate. The position is now that the holders of General Manager’s Certificates must be on duty at all times when liquor is being sold. Furthermore, they are not only responsible for compliance but also the enforcement of the provisions of the Act and the conditions of the licence, as well as the conduct of the premises with the aim of contributing to the reduction of liquor abuse.

[2] These amendments are reasonably significant in that they reflect Parliament’s expectations of the persons who are responsible for supplying liquor to members of the public.

[3] Against that background we deal with an application by Matthew Ferguson Simpson for a General Manager’s Certificate. Mr Ferguson filed his application in June of this year. Mr Ferguson has a reasonable amount of experience in the hospitality industry. Some six months ago he and a business partner set up a business which is now established and has an on-licence. The business is primarily a bar and occasionally it runs teenage dance functions where no liquor is involved.

[4] Mr Simpson has worked in the past as a temporary manager at other licensed premises. When the application for an on-licence was filed there was some opposition. It was suggested to Mr Simpson it might be more appropriate if he not be the director of the licence holding company. He accepted that advice at the time.

[5] The application for a General Manager’s Certificate revealed that Mr Simpson had a number of convictions. He did not disclose the full details but this was partly because they are so extensive.

[6] Mr Simpson went through a bad patch in his life at about 21 years of age when he was in Auckland. He became involved with people who did not encourage him to live within the law. At the age of 21 he acquired two convictions for assault on a female, as well as a conviction for dishonesty and three convictions involving methamphetamine and other drugs. In 2002 he received a final warning in respect of drug matters as well as a period of supervision for some two years.

[7] He has had some treatment in relation to drugs and he says he has been drug free for three and a half years. We would be prepared to accept his word on that issue. On the other hand any attempts to come to terms with his antisocial behaviour did not exactly succeed. In the early part of 2003, he received convictions for theft as well as taking a motor car and driving dangerously.

[8] Eventually Mr Simpson came to Wellington where he has worked in the hospitality industry and done reasonably well. He has reached the stage that not only has he managed other premises, but he is now operating the present business with his business partner.

[9] There was an incident in November 2003 where Mr Simpson had been drinking. He was described as being heavily intoxicated while at a friend’s place. He travelled by taxi into town. According to the summary of facts he jumped out of the taxi without paying. The driver apprehended him and there was an agreement that Mr Simpson would obtain the fare from a money machine which was done.

[10] According to the summary of facts (and there is some disagreement), Mr Simpson pushed the taxi driver in the back and then punched him in the back. He then ripped the front of the taxi driver’s shirt causing the taxi driver to lose money. The Police were called and there was some abuse given to them as well. Mr Simpson duly appeared before the District Court in May of 2004 when he was fined $200 with Court costs of $130.

[11] There had been two incidents this time. In November 2005 Mr Simpson made a complaint to the Police about the fact that he had been assaulted by a doorman outside a bar. Once again the facts cannot be totally established. However it is accepted by Mr Simpson that he was standing outside a roped area and was asked to move on and declined because he said that he was entitled to be where he was. The doormen physically removed him and in his view assaulted him. He was angry that the Police did not take his complaint seriously enough. The Police described him at the time as being heavily intoxicated. For his part Mr Simpson said that he had been drinking.

[12] The final incident occurred in July of this year at about three o'clock in the morning. Mr Simpson was found to be stumbling in the central business district. He was said to be swaying and unable to walk in a straight line and his speech was slurred. He was asked for his name and address and date of birth and gave false details. These were corrected when his driver’s licence was seen.

[13] The incidents did not become convictions. However, under the Act we are required to look at a number of matters when assessing the issue of suitability. The criteria are set out in s.121 of the Act.

[14] Mr Simpson fulfils some of the criteria. He has relatively recent experience in controlling licensed premises. He certainly has the relevant training and is the holder of a Licence Controller Qualification. He is 28 years of age so he is reasonably mature. He certainly has relevant convictions and recent incidents involving liquor abuse. The issue is his character and reputation, taking into account his past and the matters to which reference has just been made.

[15] In some cases we gain guidance from past decisions. In G L Osborne LLA 2388/95 the Authority said:

"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."

[16] It is accepted that with isolated offending when there is no pattern, a conviction-free period of two years might be more appropriate. The reason that a stand down period is suggested is to enable people to have the opportunity to show that they have learned from the errors of the past, that they are able to put those experiences behind them and act in a way which does not bring them to the attention of the authorities.

[17] Mr Simpson may well ask what this has to do with his running a reasonably successful operation. The expectations are that holders of General Manager’s Certificates will set examples to their patrons in their personal and public life. In other words on both sides of the bar.

[18] Mr Simpson has a responsibility to show us that he is a suitable person to be the holder of a General Manager’s Certificate at this time. For our part we have not been persuaded. We would require a further period of time for him to be able to show that he can stay away from trouble and in particular liquor abuse. He is a social drinker and occasionally likes to party. However if his drinking results in some form of antisocial consequence then we think that he has some way to go.

[19] No finding on suitability should be infinite. Everybody is entitled to a second chance. At this stage we would have thought that a period of about five years from the date of the last offending resulting in a conviction might be a generous way of looking at the matter. The last incident was in November 2003, which means we are looking for a period of about two years away at this time. That is in excess of any period that we are prepared to adjourn the application which now must be refused.

[20] Mr Simpson is invited to re-apply in two years time.

DATED at WELLINGTON this 13th day of October 2006

Judge E W Unwin Ms P A Ballard
Chairman Member

Matthew Simpson.doc(aw)