McAuley [2008] NZLLA 1126 (13 August 2008)

Last Updated: 28 January 2012

Decision No. PH 1126/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by LINDA MARGARET McAULEY 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
Member: Dr J Horn

HEARING at WELLINGTON on 22 July 2008

APPEARANCES

Ms L M McAuley – applicant
Sergeant A F Cappleman – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Linda Margaret McAuley for a General Manager's Certificate.

[2] Ms McAuley has previously held a certificate but that certificate was cancelled in decision LLA PH 475/2002. One of the reasons for the cancellation at the time was that Ms McAuley was not currently engaged in the hospitality industry.

[3] The application was filed with the Lower Hutt District Licensing Agency on 7 March 2008. The application was supported by the Licence Controller Qualification and there was a very positive reference from her employer. On the other hand, the application drew adverse reports from both the Police and District Licensing Agency Inspector based on a pattern of offending involving liquor abuse and driving.

[4] The record shows that Ms McAuley has no less than three convictions against the drink driving provisions of the Land Transport Act. The offending commenced on 9 April 2001 when Ms McAuley had a breath alcohol level of 709 micrograms of alcohol per litre of breath. She was fined and disqualified. On 4 September 2003, a second incident of similar offending revealed a level of 521 micrograms of alcohol per litre of breath. Again, there was a fine and disqualification.

[5] On 2 April 2006, Ms McAuley was again apprehended. Her level was 930 micrograms of alcohol per litre of breath. She was disqualified indefinitely and ordered to carry out an alcohol assessment and 200 hours of community work.

[6] Ms McAuley has since regained her licence. She was required to attend Care NZ. She was not believed to be a significant risk in regard to drinking and driving. She also had to undergo a blood test and attend an appointment with a doctor registered with LTNZ.

[7] Ms McAuley acknowledges that she can still be involved with binge drinking approximately once a month or once every two months. That admission has to be looked at in the light of the object of the Act which is to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse so far as that can be achieved by legislative means.

[8] We refer to a decision of Horse and Trap Tavern Limited LLA PH 880-881/2005 in which it was said:

"We believe that raising the bar for the holders of General Managers' Certificates and keeping it at a certain height has the potential to bring about a reduction in the abuse of liquor nationwide. If certain otherwise meritorious applicants suffer in the process that may not be too high a price to pay in order to achieve this long term goal."

[9] On the other hand, we have been impressed by the supporting evidence. It is clear that Ms McAuley has something to contribute to the hospitality industry and in particular, to the premises where she works.

[10] She started working at an establishment in Lower Hutt, which is a brothel called "Paris". She had been working there for approximately eight months. She applied to be a temporary manager but this was declined. This is an establishment where liquor consumption is not great. It is clear that if any General Manager's Certificate is to be issued, the certificate will be tied to those premises by way of an undertaking.

[11] Clearly such an undertaking cannot bind a person forever and an exemption to the undertaking can be granted either by the District Licensing Agency Inspector or indeed by this Authority. The issue is how we deal with the convictions and balance them against the positive aspects that Ms McAuley brings to the application. In the decision of G L Osborne LLA 2388/95 it was stated:

"Without fettering ourselves in 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."

[12] The general guideline is that people should serve a period of time to show that they have learned from the experience of the past and can apply that knowledge in a proactive and prosocial way. In the above decision it was also stated:

“Less serious convictions are also weighed. By way of example is an isolated excess breath or blood alcohol conviction or a single driving offence disclosing no pattern of offending. Nevertheless all convictions must be weighed as required by s.121(1)(b). In these and similar cases we frequently indicate that a minimum of two years from the date of conviction may result in subsequent favourable consideration providing suitable reports from both the Police and a Licensing Inspector are received.”

[13] Where there is an offending pattern as in this case we would have thought a minimum of four years from the last offence date might result in subsequent favourable consideration. That is a guideline only.

[14] In this case, we have decided that there could be a grant of a certificate but that it will be a process rather than an event. We have already indicated that any grant would be tied to the premises. We are prepared to adjourn these proceedings for a minimum of 12 months, and to have another public hearing at which we would require the presence of Ms McAuley. We suggest that in the New Year she could be appointed as a temporary manager prior to her appearance before the Authority. In this way, a period of approximately three and a half years would elapse from the date of the last offending.

[15] Therefore, the decision is as follows. The application will not be declined although the circumstances could warrant that. The application will be adjourned and will be set down for a further public hearing in approximately 12 months time. Ms McAuley is invited to apply to be appointed as a temporary manager in the New Year, and it may well be that that the appointment can be approved provided of course that there are no further adverse incidents involving liquor abuse.

[16] The application is adjourned accordingly.

DATED at WELLINGTON this 13th day of August 2008

B M Holmes
Deputy Secretary

Linda McAuley.doc(aw)