Berger, re [2007] NZLLA 825 (30 August 2007)

New Zealand Liquor Licensing Authority

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Berger, re [2007] NZLLA 825 (30 August 2007)

Last Updated: 14 February 2010

Decision No.PH 825/2007

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by MARK PETER BERGER pursuant to s.118 of the Act for a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at Thames on 16 August 2007

APPEARANCES

Mr R W Murphy – agent for applicant
Mr M Sandilands – Thames-Coromandel District Licensing Agency Inspector – to assist
Senior Sergeant R A Knight – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Mark Peter Berger for a General Manager’s Certificate. The application should be read in conjunction with a prior decision of the Authority dated 13 November 2003 under PH LLA 862/2003.

[2] The previous decision indicates that in about 1999, Mr Berger approached the Police in New Plymouth and made inquiries as to whether recent convictions would affect his ability to obtain a General Manager’s Certificate. He was advised to continue gaining experience in the hospitality industry, and was further advised that if there were no further convictions for two years, the Police would probably not object to the application.

[3] Mr Berger successfully negotiated his way through those two years and on 17 July 2001 was granted a certificate. He applied for the renewal of that certificate a year later. The evidence was that he had failed to fulfil the expectations of the Police. He had therefore let himself down and those who had taken a chance on him.

[4] Mr Berger at that stage was not only unemployed but also suffering from a mental illness. There was an allegation was that he was also requiring detoxification.

[5] He had, in that interim period of time, amassed no less than six convictions, three of which were charges of using a document and two for theft. As a consequence he was sentenced to non-residential periodic detention for a period of six months, and required to pay just under $7000 by way of reparation.

[6] Mr Berger subsequently faced two charges of failing to report to the Periodic Detention warden but he was convicted and discharged in respect of those two matters.

[7] Since that time, Mr Berger has taken much greater control of his life. On 10 April of this year he filed a further application to be the holder of a General Manager’s Certificate. He supported the application by a number of references, some of which were less than objective.

[8] However, in 2006, Mr Berger and his wife and other members of the extended family had commenced a business in Whangamata, which was to be called “Embassy.” There appears to be little doubt about the success of the business. The initiative has required a lot of capital and resources. Apart from noise issues, the business is apparently run quite well. There have been two managers one of whom is Mr Berger’s wife. That situation has created some stress. The other certificated manager has been a considerable cost on the company. Hence the application.

[9] The application not unnaturally, drew an adverse report, from the Police, based on convictions incurred by Mr Berger. He had stayed out of trouble for the last five years since he failed to report for his periodic detention.

[10] However, on 2 October 2003, there was an incident where Mr Berger was in New Plymouth and was a passenger with a person who belonged to a gang. Mr Berger’s task was to purchase pseudoephridrine from chemists. He owed the gang money for gambling debts. He had been told if he helped to purchase pseudoephridrine to assist with making the drug P, then the gambling debts would be cleared. Eventually they went to a chemist and were then stopped by the Police. Mr Berger was charged with possessing material and equipment with intent. He was convicted some seven months later on 11 May 2004, was fined $750 with costs.

[11] It is that conviction that is the cause for concern.

[12] Basically, Mr Berger had been committing offences on a fairly regular basis between 1995 and 1999. He stayed clean in order to get his manager’s certificate and then committed further offences in 2001 and 2002. There would have been a five-year gap until this hearing, but for the more recent charge for which he was subsequently convicted in New Plymouth. That is the basis of the Police objection.

[13] The Police have an interest in ensuring that those entrusted with the running of licensed premises will be people of integrity who would understand and co-operate with the Police and will not turn a blind eye to offences committed either in or around licensed premises. In other words, managers will set examples not just to their patrons but look after their safety as well. The expectation is that they will be committed to upholding the object of the Act.

[14] Mr Berger has taken some steps to deal with these latent concerns. He has a reasonably good record within the hospitality industry, and as he says, hospitality is what he knows. He was diagnosed with bipolar disorder and he has been treated and is currently on medication. He has met a lady whom he has married and is keen to start a family. It is his father-in-law who has trusted him with the capital to bring about the opening of the “Embassy” in Whangamata. His aim is to have an upmarket lounge bar. The business has been running for a few months and the licence is due to be renewed this year. It is to relieve pressure on the family and also the company that he has made his application.

[15] In the light of his past offending, we believe that a five-year conviction-free period should be sufficient to give confidence that Mr Berger has finally turned the corner. This would be necessary for Mr Berger to be able to satisfy us that he will not relapse, and is someone who can be trusted to run licensed premises, and set the right example. That five-year period has at least another year to run.

[16] We are not prepared to relax those standards in the light of the history of this matter. We are prepared to give Mr Berger some credit for the fact that he is only intending to be able to run his own premises. He has given an undertaking that if he is granted a certificate it will be used only in the running of the “Embassy”, of which, after all, he is a part owner of. That undertaking will exist during the term of any manager’s certificate but there can be an exception granted by the Inspector or, if necessary, by this Authority.

[17] The decision of Graham Leslie Osborne LLA PH 2388/95 stated:

“Without fettering ourselves on 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.”

[18] The application is therefore adjourned for 12 months. We anticipate that during that period of time Mr Berger may be appointed as a temporary manager provided the provisions of s.128 have been observed. If, after 12 months there are no further complaints, Mr Berger will have been five years without a conviction. In those circumstances we would be prepared to grant the application on the papers. If Mr Berger lets himself down for the second time then there would not be much point in continuing his application, which, in all likelihood, would be declined.

DATED at WELLINGTON this 30TH day of August 2007

B M Holmes
Deputy Secretary

Mark Berger.doc