Marner v Jennings [2008] NZLLA 1425 (7 October 2008)

New Zealand Liquor Licensing Authority

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Marner v Jennings [2008] NZLLA 1425 (7 October 2008)

Last Updated: 9 February 2010

Decision No. PH 1425/2008

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/419/2006 issued to ALAN RICHARD JENNINGS

BETWEEN CAROLINE ANNE MARNER

(Police Officer of Wellington)

Applicant

AND ALAN RICHARD JENNINGS

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON 2 September 2008

APPEARANCES

Sergeant C A Marner – NZ Police – applicant
Mr A R Jennings – respondent
Mr R S Putze – Wellington District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application brought by the Police for the suspension or cancellation of the General Manager's Certificate issued to Alan Richard Jennings. The application is based on the ground that the conduct of the manager has been such as to show that he is not a suitable person to hold the certificate.

[2] The facts as established in evidence show that at about midnight on Saturday 19 April 2008, Mr Jennings was driving a motor vehicle and was stopped randomly. He underwent a breath-screening test which was positive. A blood sample was taken. The result of the same showed a level of 188 milligrams of alcohol per 100 millilitres of blood, over twice the allowable limit. Mr Jennings ultimately came before the District Court in Lower Hutt where he was convicted and was fined. He was also ordered to repay the medical expenses and disqualified for a period of 12 months.

[3] It is probable that that period of disqualification took into account that there were three historical but nevertheless relevant matters. These were in 1983, 1984 and 1996. Mr Jennings compounded his offending by driving when his licence had been suspended. The position is that because of the level of alcohol in his breath, Mr Jennings had his driver's licence suspended for a short period. During that time he was stopped randomly again. He believes he did not know that his licence had been suspended because his licence had not been taken from him at the time. In any event he was taken before the District Court. Once again he received a moderate fine and a further period of disqualification.

[4] The impact on Mr Jennings personally has been quite considerable as was well apparent from his demeanour in the witness box. Mr Jennings revealed the offending to his employer and the employer requested his resignation. Mr Jennings offered it approximately one week ago. Mr Jennings appeared before us currently unemployed and without income.

[5] He was well able to make the connection between his own personal behaviour and the object of the Act. There is no record of any misconduct as the manager of licensed premises and he has been in the hospitality industry for up to seven years.

[6] The personal consequences are matters that we propose to take into account. The Police suggested that cancellation might be appropriate. They referred us to the decision of Martin Ferguson v Alastair Robert Lyon LLA PH 57/2003 in which 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.”

[7] It should be pointed out that in that particular case Mr Lyon had three convictions. One was in 1989, the other was in 1992 and the last one was in 2002. His suspension period was for six weeks.

[8] We believe that to cancel Mr Jennings' certificate in the light of what has happened to him personally would be an unreasonable exercise of our jurisdiction. On the other hand we think it is desirable that a form of sanction should be imposed not just as a deterrent to Mr Jennings, but as a message to all holders, that any offending or behaviour involving the abuse of liquor will place a certificate at risk.

[9] We have therefore decided that General Manager's Certificate number 049/GM/419/2006, issued to Alan Richard Jennings will be suspended for a period of six weeks commencing on Tuesday 2 September 2008.

DATED at WELLINGTON this 7th day of October 2008

Sara Cunningham
Secretary

Alan Jennings.doc(aw)