McClutchie, re [2007] NZLLA 795 (23 August 2007)

New Zealand Liquor Licensing Authority

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McClutchie, re [2007] NZLLA 795 (23 August 2007)

Last Updated: 2 February 2010

Decision No.PH 795/2007

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by HARRY GRANT MCCLUTCHIE pursuant to s.123 of the Act for renewal of a Club Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr P M McHaffie

HEARING at Gisborne on 8 August 2007

APPEARANCES

Mr H G McClutchie – applicant
Ms A S Joe – Gisborne District Licensing Agency Inspector – in opposition
Sergeant C B Neustroski – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Harry Grant McClutchie for the renewal of his Club Manager’s Certificate. Mr McClutchie was granted his certificate on 17 February 2006. That application was granted without opposition and Mr McClutchie has been working as one of the certificated managers at the “Tokomaru Bay United Sports Club” ever since.

[2] The certificate became due for renewal a year later. In the application form Mr McClutchie was asked whether he had been convicted of any offence. He said that he had. The facts show that in about June 2005, prior to being granted the certificate, Mr McClutchie was apprehended for driving with excess breath alcohol content. The level was 620 micrograms of alcohol per litre of breath.

[3] Prior to his being convicted, Mr McClutchie filed his application relying on advice he had received about the matter. As stated above there was no opposition. Apparently no connection was made between his application and his apprehension.

[4] Accordingly, the offending became a liquor abuse issue raised in the report received from the Gisborne District Licensing Agency Inspector. The prior offending is not specifically one of the criteria set out in s.126 of the Act. Under that criteria we are required to take into account any convictions recorded against the applicant since the certificate was issued. However the offence is a matter dealt with in the report received from the Inspector, and therefore is a matter that we are allowed to take some notice of.

[5] There is a secondary issue raised by the Police referring to an incident in May 2007, at the club. There was a domestic matter involving Mr McClutchie. The Police were subsequently called. Mr McClutchie has given evidence that he removed himself from the club to prevent any confrontation, and that he was seen by the Police officers at his home. He said that the club was aware of the incident but continued to employ him. He argued that effectively, there was no confrontation, and no charges followed.

[6] In those circumstances, it seems to us that it would be wrong to use this incident in any way to prevent the granting of the renewal. We are, however, aware that had the driving incident come to the notice of the reporting agency prior to the grant of the certificate, then it was highly likely that Mr McCutchie would have been required to undergo a stand-down conviction-free period of approximately two years. It may be that he was a little fortunate, but it is a matter that we have decided to take into account to a limited extent.

[7] After hearing from Mr McClutchie, we confirm that his Club Manager’s Certificate will be renewed for two years only. This means that it will fall due again for renewal on 17 February 2009, in approximately 18 months time. We hope that this will be a reminder to Mr McClutchie as the holder of a certificate, that where liquor is involved, he is expected to set standards higher than those who have different vocations.

DATED at WELLINGTON this 23RD day of August 2007

B M Holmes
Deputy Secretary

Harry McClutchie.doc