Churstain, re [2008] NZLLA 1766 (17 December 2008)

Last Updated: 12 February 2010

Decision No. PH 1766/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by LYNDON ROBERT CHURSTAIN 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 L R Churstain – applicant
Mr P N Richardson – North Shore District Licensing Agency Inspector – in opposition
Constable S J Chenery – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an opposed application by Lyndon Robert Churstain for a General Manager's Certificate. The Police and the District Licensing Agency Inspector have opposed the application on the grounds that the applicant has convictions recorded against his name. Of particular concern are recent convictions for driving with excess breath alcohol.

[2] On 17 June 2008 the North Shore District Licensing Agency received an application for a General Manager's Certificate from Mr Churstain. The applicant stated in his application form that he was employed at the "Takapuna Bar" and that he had been employed there since September 2005.

[3] Mr Churstain indicated on the application form that he had convictions for three charges of driving with excess breath alcohol. The first of these was in August 1998, then August 2005 and the most recent in November 2006.

[4] As part of the procedures set out in the Act the application was referred to the Police to make enquiries. The Police report confirmed the convictions identified in the application and in the light of the recent convictions, and the known stance of the Authority in relation to alcohol related offending, the Police opposed the grant of a General Manager's Certificate to the applicant.

[5] The application was opposed by the District Licensing Agency Inspector on the same grounds and the matter was accordingly set down to be determined by the Authority at a public hearing.

[6] We heard from Mr Peter Norman Richardson, the Liquor Licensing Inspector for the North Shore District Licensing Agency. He confirmed his opposition in terms of the applicant's convictions and stated that the "Takapuna Bar", at which the applicant is employed, are not problem premises.

[7] Constable Shontahl Chenery Joydi gave evidence in terms of the convictions and produced a criminal and traffic history report. This confirmed the recent convictions in 2005 and 2006 in the North Shore District Court. The date of the most recent offence was 8 August 2006 when the applicant was convicted of driving with excess blood alcohol of a level of 108 milligrams of alcohol per 100 millilitres of blood.

[8] We note that Constable Chenery also confirmed that the applicant previously held General Manager's Certificate number GM/005/71/2002 which was issued by the North Shore District Licensing Agency in 2002. The certificate was renewed once in 2003 and subsequently expired on 13 March 2006 due to the certificate not being renewed.

[9] Constable Chenery stated that the Police believe that by gaining three convictions involving the use and abuse of alcohol that the offending was not isolated and that this behaviour questions the suitability of the applicant to hold a General Manager's Certificate.

[10] Mr Churstain gave evidence confirming that he previously held a manager's certificate and stated that due to the conviction for excess breath alcohol he had not renewed his manager's certificate in 2006. He stated that he had since resat and passed the Licence Controller Qualification in April 2008 even though he had passed it previously. He also advised that when he had not renewed the General Manager's Certificate he had sought other employment and is currently in a management position with Sovereign Insurance. He continues to work at the "Takapuna Bar" two nights a week and on other occasions when called in. Mr Churstain has advised that he has undergone a CAD course in terms of liquor abuse.

[11] Mr Churstain was able to make the connection between the object of the Act and his own behaviour and stated that he was concerned about his customers and would on occasions, remove their keys or drive them home if they lived nearby.

[12] Mr Churstain has worked in the hospitality industry for at least 15 years and intends to continue working in the industry and perhaps return full time to the industry in the future.

[13] We also heard from Mr Mike Franov, on behalf of Big Mana Limited, Mr Churstain's employer at the "Takapuna Bar". Mr Franov gave Mr Churstain a glowing recommendation and stated that he believed that Mr Churstain was worth the effort, that he was well liked and well known in the Takapuna area and that he was a capable, honest and diligent employee.

[14] We must have regard to the matters set out in s.121 of the Act when considering any application for a General Manager's Certificate. These are 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.

[15] The issue here is the recent convictions, in particular the alcohol related nature of the convictions. We are required to exercise our discretion in a manner most likely to promote the object of the Act as set out in s.4, which is to establish a reasonable system of control over the sale and supply of liquor with the aim of contributing to the reduction of liquor abuse as far as that can be achieved by legislative means.

[16] In the guideline decision of G L Osborne LLA 2388/95 the Authority 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."

[17] On the other hand 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.”

[18] The Authority in those days thought that the time should run from the date of conviction. We have on many occasions since then said that in terms of logic it should in fact run from the date of the offending.

[19] Mr Churstain qualifies in all other respects. The only matter that we have to consider is the impact of the convictions which does of course affect his suitability. These matters were also raised in reports by the Police and the Inspector.

[20] In this case we do not believe that it is an isolated situation, there being three offences in a 10 year period. We note however, that the first offence occurred prior to the issue of the earlier General Manager's Certificate .

[21] The more recent convictions are cause for concern but we are satisfied that Mr Churstain has taken appropriate action by attending a course and by standing himself down from management by not renewing his General Manager's Certificate.

[22] More than two years have now passed since the date of the conviction in August 2006. However, given that there are two recent convictions we would have looked for a longer period than two years in any event.

[23] The actual time that has passed is two years and three months and on the basis of Mr Churstain's action and the support of his employer we are prepared to grant the application at this time.

[24] The certificate may issue immediately.

DATED at WELLINGTON this 17th day of December 2008

B M Holmes
Deputy Secretary

Lyndon Churstain.doc(aw)