Loye v Toon [2007] NZLLA 274 (30 March 2007)

Last Updated: 9 March 2010

Decision No. PH 274/2007

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 the cancellation or suspension of General Manager’s Certificate number GM/374/97 issued to LEO GRAHAM TOON

BETWEEN JASON PETER LOYE

(Police Officer of Avondale)

Applicant

AND LEO GRAHAM TOON

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms P A Ballard

HEARING at AUCKLAND on 14 March 2007

APPEARANCES

Senior Constable J P Loye – NZ Police - applicant
Mr L G Toon – respondent
Mr G S Whittle – Auckland District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application brought by the Police for the suspension of a General Managers’ Certificate issued to Leo Graham Toon.

[2] Mr Toon has held his certificate for 10 years. The certificate fell due for renewal on 28 February last and we understand that the renewal application has been filed. The ground for the application is that Mr Toon’s conduct has been such as to show that he is not a suitable person to hold the certificate.

[3] The evidence in support of the ground was produced by Senior Constable J P Loye. Senior Constable Loye is currently the liquor licensing co-ordinator for the Auckland City West policing area. He was able to establish that on or about 16 September 2006 Mr Toon was apprehended for driving with excess breath alcohol content. The level of alcohol on his breath was found to be 444 micrograms of alcohol per litre of breath which is just over the allowable limit. Mr Toon was dealt with approximately three weeks later in the North Shore District Court and was duly fined and disqualified. To some extent the matter was aggravated by a previous and similar incident, although this occurred some 20 years ago and should really be discounted.

[4] Mr Toon has given evidence. He was readily able to make the connection between his own personal conduct and the object of the Sale of Liquor Act. Mr Toon has been operating a charter vessel out of the Westhaven Marina for 10 years or so and he accepts that a period of suspension might well be appropriate, given the circumstances. He has indicated that any such suspension could cause difficulties for him on an operational basis, bearing in mind that he runs a seasonal business and currently the business is reasonably busy.

[5] There is a side issue which has arisen. There is an on-licence which is held by a company known as Fun Cruises Limited. It is the company that operates the conveyance known as the “MV Sea Tour”. This licence fell due for renewal on 23 December 2006. An application was duly filed and referred to the Police. Because Mr Toon is the sole director of the company, (and therefore its alter ego), and because there had been a conviction involving liquor abuse, Police took the view that the application for renewal of the on-licence should be opposed. They indicated that a reduced period of renewal of 18 months would be acceptable.

[6] Because of miscommunication with the Agency, the on-licence was in fact renewed for three years. When this fact became known the Police contacted the Agency and Mr Toon was also contacted. He was good enough to accept that an error had occurred, and he offered to return the on-licence with an agreement for a renewal period of 18 months. He since thought about that and he has recognised that renewing an on-licence earlier is an additional compliance cost. He submitted that his business is a little unusual in that it is seasonal and the profitability is marginal. He says that he conducts about 60 charters in the year. The business is his livelihood. It was his evidence that a licence is required for only 20% or so of the charters. In short, he faces considerable costs to cater for the limited occasions when liquor is being sold. Furthermore he said the number of people on the charter can be anything from 10 people to 35.

[7] We have carefully considered the matter and we refer to an earlier decision of Martin Ferguson v Alistair Robert Lyon, LLA PH 57/2003 in which we said:

“It is our view that 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.”

[8] We believe that the Police have established that there was conduct leading to a question about Mr Toon’s suitability. We have taken into account the level of alcohol on the breath and the explanation that Mr Toon has given. He said that he had just finished a bottle of beer when he decided to drive after working on his boat. He said that he had not had much to eat and on reflection he might well have obtained a blood test, but there were other matters of convenience which prevented him from doing so.

[9] In those circumstances we believe that a period of 10 days might be appropriate given the amount of liquor that is sold on the conveyance. We accordingly order that Mr Toon’s General Manager’s Certificate will be suspended for a period of ten days commencing on Monday 16 April 2007.

[10] As for the on-licence, this matter is not before us and Mr Toon has made out a good case. We believe that there are somewhat exceptional circumstances because of the fact that the licence is not used that often. It is our view that if an application had been made for the suspension of the on-licence or, if an opposed renewal had come before us, the probability is, that in the light of the explanation from Mr Toon, we would not have interfered with the normal renewal period.

DATED at WELLINGTON this 30th day of March 2007

Judge E W Unwin Ms P A Ballard
Chairman Member

lgtoon-suspn-doc (md)