Tuaana, re [2008] NZLLA 1724 (11 December 2008)

Last Updated: 12 February 2010

Decision No. PH 1724/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by MAUI TUAANA pursuant to s.118 of the Act for a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Ms J D Moorhead
Mr P M McHaffie

HEARING at AUCKLAND on 25 November 2008

APPEARANCES

Mr M Tuaana – applicant
Sergeant J P Loye – NZ Police – in opposition
Miss S Kotecha – Auckland District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Maui Tuaana for a General Manager's Certificate pursuant to s.118 of the Act. The application was filed with the District Licensing Agency in July 2008.

[2] The criteria to which we must have regard are set out in s.121 of the Act as follows:

(a) The character and reputation of the applicant:

(b) Any convictions recorded against the applicant:

(c) Any experience, in particular recent experience, that the applicant has had in managing any premises or conveyance in respect of which a licence was in force:

(d) Any relevant training, in particular recent training, that the applicant has undertaken and evidence the applicant holds the prescribed qualification required under section 117A:

(e) Any matters dealt with in any report made under section 119.

[3] The application was opposed by the Police on the basis of convictions and a failure to disclose those convictions. There was also at the time an active charge for which the applicant was due to appear in Court.

[4] Evidence was given by Sergeant Jason Peter Loye of the vetting procedure carried out under the Act. Sergeant Loye identified that the applicant had a conviction history including offensive behaviour, disorderly behaviour, failing to comply with a prohibition order, wilful trespass, resisting Police and assaulting Police. He also identified that the applicant had an active charge of excess breath alcohol. The applicant was subsequently convicted in the Auckland District Court on 22 August 2008 for the offence of driving with excess breath alcohol on 15 June 2008.

[5] There was a further conviction for driving while disqualified in the Auckland District Court on 5 September 2008. The evidence also shows that there is a recent charge for using a document for a pecuniary advantage for which the applicant is to appear in the Auckland District Court on 18 December 2008.

[6] We heard from Mr Tuaana who confirmed that he worked at "Bouchon French Café" in Kingsland. He originally started there as a kitchen hand but now is in charge of the whole restaurant.

[7] He stated that he wished to obtain a General Manager's Certificate in order to help the owners, both of whom have General Manager's Certificates, when needed. He also said that a lot of staff were French and that they tended to disappear and it was better to have someone who was there all the time.

[8] Mr Tuaana was candid about the issues that he had faced which had resulted in the convictions referred to above. He said that he had worked in the hospitality industry for some 23 years in hotels and restaurants. He has not ever been appointed as a temporary or acting manager.

[9] On the application form when asked "has the applicant been convicted of any offence", he ticked "yes" and for the nature of the offence listed "traffic offence" and "misbehave"

[10] The matters with which we are concerned are the convictions referred to, the character and reputation of the applicant and to some extent the experience or lack of experience that Mr Tuaana has in managing licensed premises. We note however that he holds the Licence Controller Qualification. There are also the matters dealt with in the reports by the Police and the Inspector.

[11] In the guideline decision of G L Osborne LLA 2388/95 the Authority said:

"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 Authority went on to say:

“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] The Authority has now accepted that it is the date of the offending that is relevant. In this case we would expect a substantial period of time to pass in order for the applicant to show that he has been conviction free.

[14] In all the circumstances we are unable to grant the application at this time and accordingly it is refused.

DATED at WELLINGTON this 11th day of December 2008

B M Holmes
Deputy Secretary

Maui Tuaana.doc(aw)