Rodley v Murphy [2007] NZLLA 344 (10 April 2007)

Last Updated: 8 February 2010

Decision No. 344/2007

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 suspension or cancellation of General Manager’s Certificate number GM 047/8/00 issued to NICOLE ANNE MURPHY

BETWEEN AMANDA MARION RODLEY

(Police Licensing Support Officer of Wellington)

Applicant

AND NICOLE ANNE MURPHY

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON on 29 March 2007

APPEARANCES
Sergeant C A Marner – NZ Police – applicant
Miss N A Murphy – respondent

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application brought by the Police for the suspension of a General Manager’s Certificate issued to Nicole Anne Murphy.

[2] Ms Murphy has held her certificate since May 2000. As far as can be ascertained from the papers, she has used her certificate continually. She is the sole charge manager of licensed premises known as “Charltons Bar” in Silverstream.

[3] The ground for the application is that Ms Murphy’s conduct has been such as to raise question marks about her suitability to hold the certificate.

[4] The evidence discloses that on 3 December 2006, Ms Murphy was the driver of a motor vehicle which was stopped and a breath-screening test was conducted. The evidential breath test gave a positive result of 656 micrograms of alcohol per litre of breath. Ms Murphy was duly convicted in the Upper Hutt District Court and fined and disqualified. This is her first and only conviction. She is 34 years of age.

[5] Ms Murphy has given evidence. It is clear from her evidence that on the day in question she had had a particularly hectic day, and there were a variety of reasons for this, including the lack of staff. She decided that she would return home but drank some wine before doing so. She was very surprised to find that she was so far over the allowable limit. She acknowledged that she made a serious error of judgement that she deeply regretted.

[6] She pointed out that she had already suffered the indignity of an appearance before the District Court, and of having to explain matters to her clientele as well as financial embarrassment. Her main submission was that these particular burdens would be added to if the Authority took further steps in relation to her certificate.

[7] Ms Murphy was supported by Mr N Miseldine who is the owner of the premises and Ms Murphy’s employer. Mr Miseldine was very positive about Ms Murphy’s contribution to the running of the premises. He explained that there would be considerable difficulty if her manager’s certificate was suspended for a long period of time. He said that her position is that of a sole charge person, and he is considerably reliant on her to be present at all times when liquor is being sold. Mr Miseldine also made the general submission that a further punishment, beyond that which had been imposed by the District Court, might not be warranted.

[8] From the Police perspective there is no question but that the grounds for the application have been established. The issue in this case is whether it is desirable that some form of further sanction be imposed by the Authority.

[9] As to the question about whether off-duty conduct can impact upon a person’s ability to be the holder of a certificate, we refer to a decision of Anthony William Strange LLA PH 1632/96 in which it was stated:

“In many occupations off duty conduct is commonly ignored. An exception may arise where the conduct impacts upon work performance. Few trades or professions have a direct legislative link which requires that conduct (including out of hours activities) be considered under the quasi-disciplinary procedures of s.135 of the Act. Nevertheless that burden is imposed by Parliament upon licensees under s.132 and managers under the Sale of Liquor Act 1989. Their conduct and suitability may be examined at any time if an application is brought before the Authority.”

[10] There is statutory provision for this application to be brought. We refer to one other case which is a decision of J P Loye v Makoto Tokuyama LLA PH 285-286/2006 which says:

“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 normally be 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.

[11] In this case there are some special circumstances which weigh in the respondent’s favour. She has produced a large number of references. Her case has been well-argued. Her employer has seen fit to come before us, and she has held her certificate for a large number of years.

[12] We are satisfied that in her case the lesson has been learnt. However, this case, like others, is about keeping standards high. There will be a suspension of the General Manager’s Certificate but because of the special circumstances, the period will be reduced significantly.

[13] Accordingly and for the reasons given we order that the General Manager’s Certificate issued to Nicole Anne Murphy will be suspended for two weeks commencing on Monday 16 April 2007.

DATED at WELLINGTON this 10th day of April 2007

Judge E W Unwin Ms P A Ballard
Chairman Member

namurphy-susp.doc (md)