Molloy, re [2007] NZLLA 591 (13 June 2007)

Last Updated: 3 October 2010

Decision No.PH 591/2007

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by TRACEY LEIGH MOLLOY 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
Members: Dr J Horn
Mr P M McHaffie

HEARING at HOKITIKA on 5 June 2007

APPEARANCES

Ms T L Molloy – applicant
Sergeant A J Lynch – NZ Police – in opposition
Mr E J Newman – Westland District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Tracey Leigh Molloy for a General Manager’s Certificate.

[2] We are governed by the criteria set out in s.121 of the Act in considering the application. These criteria relate to Ms Molloy's character and reputation, any convictions recorded against her, any experience in particular recent experience that she has had in controlling any licensed premises, any relevant training that she has undertaken and in particular evidence of the prescribed qualification and finally any matters dealt with in any reports received from the Police or District Licensing Agency Inspector.

[3] The criteria to a large extent have been satisfied by Ms Molloy. She has the relevant training and is currently the holder of a Licence Controller Qualification. She has in the past been the holder of a General Manager’s Certificate during which time she was in control of licensed premises. She has a very good reference in respect of those premises although there were reservations expressed about her managerial ability by the reporting agencies.

[4] Ms Molloy allowed the previous certificate to lapse. When she completed her application in January of this year she was asked whether she had been convicted of any offence and she ticked the box which indicated that the answer was no. It is the fact that Ms Molly does have a conviction arising out of an incident back in 1997 when she was said to have misled a Social Welfare Officer.

[5] The matter took some time to come to light and resulted in a conviction in the Greymouth District Court. On 16 May 2002 the sentence of the Court was a term of imprisonment for four months with leave to apply for home detention.

[6] That in itself is a very serious matter but generally speaking we would have allowed some five years to run at the minimum from the date of offending so that a person could then be able to say that they had learned from his or her mistakes in the past and was able to apply that experience in more positive aspects of managing a licensed premises.

[7] But the issue of course by failing to disclose the matter relates to Ms Molloy's character and reputation. She has explained how she was running down a business at the time that she made a mistake by not renewing her General Manager’s Certificate and made a second mistake by for some reason, not disclosing the conviction.

[8] In all the circumstances we are prepared to give her the benefit of the doubt on the basis that we do not regard the omission as intentionally leading to a perception of deceitfulness.

[9] Ms Molloy commenced her own business known as the "Beachhaus Café and Bar" and applied for a restaurant style on-licence. There was an inspection conducted on 23 March 2007 when according to the Police liquor was being consumed. The Police observed two groups who were dining at the "Beachhause Café and Bar" who had alcohol at their tables and wine glasses. They brought the matter to Ms Molloy's attention and she explained that this was a private function. However no special licence had been applied for or granted. Accordingly a warning was given and the incident affected the on-licence application.

[10] However the opposition must have been withdrawn because the restaurant style on-licence was granted relatively recently. According to the Inspector Ms Molloy has been managing this premises as a temporary manager since that time. However Ms Molloy was unaware that she had been appointed as a temporary manager or apparently for some reason continued to employ other managers.

[11] When she gave evidence before us she did not seem to have a full appreciation of the Act. The Inspector however took the view that there have been no incidents or complaints raised about the way that the premises had been operating since they had commenced with a full licence.

[12] We therefore take the view that there were adequate grounds for opposing the on-licence but the opposition was withdrawn. There are residual concerns by the monitoring authorities about Ms Molloy's ability to run licensed premises on her own. But to some extent these have been balanced by a large number of very positive references supplied by Ms Molloy in her application.

[13] We find that it is much of a balancing exercise in this case. We refer to a previous decision of the Authority which is known as Deejay Enterprises Limited LLA 531 – 532/97 in which it was 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."

[14] We believe that Ms Molloy should be encouraged in her endeavours but we also believe that it is too early at this time to grant her the privilege of a General Manager’s Certificate. By way of compromise therefore we are proposing to adjourn this application for a period of six months. This will have the advantage of enabling Ms Molloy to be the temporary manager of the licensed premises of which she is a proprietor and she can therefore commence working as a temporary manager under the watchful eye of the reporting agencies.

[15] If after six months there are no other concerns raised by the Inspector or the Police and the earlier indications of satisfactory running of licensed premises are reinforced, then we would be prepared to grant the application on the papers without any further appearance or public hearing. If on the other hand there are further issues raised then that is a matter that will have to be discussed either at a public hearing or in any other way.

[16] The application is therefore adjourned in the hope and expectation that in some six months time it can be granted.

DATED at WELLINGTON this 13 day of June 2007

B M Holmes
Deputy Secretary

Tracey Molloy.doc(aw)