Tomescu, re [2008] NZLLA 1707 (9 December 2008)

Last Updated: 12 February 2010

Decision No. PH 1707/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by IOANA TOMESCU 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: Mr P M McHaffie

HEARING at WELLINGTON on 21 November 2008

APPEARANCES

Miss I Tomescu – applicant
Sergeant C A Marner – NZ Police – in opposition
Mr R S Putze – Wellington District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Ioana Tomescu for a General Manager's Certificate.

[2] The application to a large extent fulfils the necessary criteria set out in s.121 of the Act. For example, Miss Tomescu has been employed in licensed premises known as "Cue Room" as a full time bar person since March 2007. Over the last 20 months she has been sufficiently competent to result in this application for added responsibility being stimulated and supported by her employer.

[3] She is described in a reference as a responsible, honest and dedicated employee. She is the holder of the Licence Controller Qualification. When interviewed, she was able to display a satisfactory knowledge of the Act and her responsibilities to that Act.

[4] The application received adverse reports because at the time of the filing of the application in December 2007, Miss Tomescu was the subject of active charges which involved both liquor abuse and aggression. Accordingly the matter was set down for a public hearing.

[5] It has now been established that on 29 August 2007 at about 2.45 am Miss Tomescu was in Courtenay Place in Wellington. There was an incident which resulted in her being arrested for assault. As it happens the charge was reduced following a not guilty plea to a charge of disorderly behaviour likely to cause violence. Miss Tomescu pleaded guilty to that charge in March of this year and was fined a moderate amount with Court costs.

[6] The other incident took place in September 2007 at about 2.30 pm. There was what might be described as a domestic argument which again resulted in Miss Tomescu being arrested for assault. This time the charge was laid under the Summary Offences Act. That matter went before the District Court but Miss Tomescu was discharged without a conviction on the basis that she undertook counselling from Care NZ.

[7] It was perceived at the time that there were dependency/abuse matters which needed to be addressed. It is clear from the report that the two incidents followed by appearances in the District Court were something of a ‘wake-up call’ for Miss Tomescu. She stated that she was not going to allow this type of activity to happen again particularly as it may jeopardise her involvement in the hospitality industry.

[8] The general comment from the report was that she did not meet the criteria for alcohol dependence or abuse, and that it may well be that she has learned from those experiences.

[9] We have always taken the view that it is necessary to establish that experiences such as the above become learning processes. It is necessary to undergo a period of time in which there are no other incidents or convictions. If for example a person can survive two or three years without incident, it may well be that they can show that the lessons have been learned, and will not be repeated in the future.

[10] In this case there is only the one conviction although there is another incident that to some extent reflects on Miss Tomescu's suitability. As the Police have pointed out in their final submissions, the behaviour and standards exhibited in the past impact upon an applicant's ability to discharge his or duties as a general manager. The Police submitted that the standards for manager should be kept high. We are reminded of the decision of Horse and Trap Tavern Limited LLA PH 880-881/2005 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."

[11] We have decided that in this case it would be an unreasonable response to refuse the application particularly taking into account the support that Miss Tomescu has in her chosen career. We intend however, for the grant of the certificate to be a process rather than an event.

[12] The application is now adjourned for nine months. If after nine months time it is reported to us that there have been no further adverse matters, we propose to grant the application on the papers without a further public hearing. Miss Tomescu may be appointed as a temporary or acting manager for periods of over 48 hours in the last three months of that adjourned period provided the provisions of ss.128 and 129 of the Act have been observed. If there are adverse reports received, a further public hearing may be necessary or the application will be declined.

[13] The application is adjourned on those terms.

DATED at WELLINGTON this 9th day of December 2008

B M Holmes
Deputy Secretary

Ioana Tomescu.doc(aw)