Marner v Jones [2008] NZLLA 1378 (30 September 2008)

New Zealand Liquor Licensing Authority

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Marner v Jones [2008] NZLLA 1378 (30 September 2008)

Last Updated: 9 February 2010

Decision No. PH 1378/2008

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 049/GM/411/2005 issued to PAUL STEPHEN JONES

BETWEEN CAROLINE ANNE MARNER

(Police Officer of Wellington)

Applicant

AND PAUL STEPHEN JONES

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms J D Moorhead

HEARING at WELLINGTON on 2 September 2008

APPEARANCES

Sergeant C A Marner – NZ Police – applicant
Mr L Tuffs – as agent for the respondent
Mr R Putze – Wellington District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application brought by the Police for the suspension or cancellation of a General Manager's Certificate issued to Paul Stephen Jones. The ground for the application is that the conduct of the manager is such as to show that he is not a suitable person to hold the certificate.

[2] Mr Jones has held his General Manager's Certificate since 2005. The evidence shows that at about 7.00 am on Sunday 27 April 2008, Mr Jones was driving a motor vehicle and was stopped by the Police. He was asked to undergo an alcohol breath test. Mr Jones subsequently elected to give a blood sample. The result showed that he had a level of 103 milligrams of alcohol per 100 millilitres of blood. The allowable limit being 80 over 100. Mr Jones was subsequently convicted and fined and disqualified and ordered to pay the costs of obtaining a sample.

[3] This was his first conviction in about 25 years of driving and led to the current application before us. Mr Jones has confirmed that he had been working until about 2.00 am at the premises where he is currently employed as a manager. He drove into town to get something to eat. He met up with a friend and although he was responsibly drinking in a controlled fashion, he made an error about the size of the glasses/containers. He maintained that although he believed that he was capable of driving legally and safely, this did not turn out to be the case. At any event he says that he believed that he was not demonstrably intoxicated. Had he been behind the bar, he would have had no hesitation in serving himself.

[4] Mr Jones was easily able to make the connection between his own private behaviour and the object of the Act. It is clear that he has not only suffered the indignity of a conviction, but he has had to appear before us for the first time. There are no concerns about the way he has exercised the management of licensed premises. He has been represented by a licensing consultant whom he obtained through his involvement with the Hospitality Association.

[5] On his behalf Mr Tuffs has requested leniency, and in the circumstances we believe that some indulgence is warranted. As the Police have pointed out, in the decision of Martin Ferguson v Alastair Robert Lyon LLA PH 57/2003 it was said:

“It is our view that if managers are guilty of breaches of the drink driving provisions of the Land Transport Act they must expect their certificates to be suspended for a period. The length of the period should represent a balance between the seriousness of the offending and the maximum term of six months. In the majority of cases such a result will be seen by the Authority as a desirable step towards the promotion of the object of the Act.”

[6] In this case the issue is about achieving the object of the Act. Although the incident has had a severe impact on Mr Jones, as a matter of consistency, we feel that some form of sanction should be imposed in addition to the penalty imposed by the Court. We trust that any such enforcement order might help to persuade the holders of manager’s certificates, that any behaviour involving liquor abuse will place such certificates at risk.

[7] After balancing all factors we propose to suspend the General Manager's Certificate for a period of three weeks. Accordingly the General Manager's Certificate number 049/GM/411/2005, issued to Paul Stephen Jones is suspended for a period of three weeks commencing on Monday 6 October 2008.

DATED at WELLINGTON this 30th day of September 2008

Sara Cunningham
Secretary

Paul Jones.doc(aw)