Mortensen v Hough [2008] NZLLA 2 (10 January 2008)

Last Updated: 14 February 2010

Decision No. PH 2/2007

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 of General Manager's Certificate number GM 2835/96 issued to PAUL ALAN HOUGH

BETWEEN SHONTAHL JAYDI MORTENSEN

(Police Officer of North Shore City)

Applicant

AND PAUL ALAN HOUGH

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr P M McHaffie

HEARING at AUCKLAND on 17 December 2007

APPEARANCES

Constable S J Mortensen – NZ Police – applicant
Mr P A Hough – respondent

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application brought by the Police for the suspension of a General Manager's Certificate issued to Paul Alan Hough. Mr Hough has held his General Manager's Certificate since September 1996.

[2] The application results from a conviction which was entered in the North Shore District Court in June 2007. The application is based on the ground that Mr Hough's conduct has been such to show that he is not a suitable person to hold the certificate.

[3] The incident relates to a domestic matter involving Mr Hough and his partner. Liquor had been consumed prior to the incident. A number of allegations were made. However, after a period of time, Mr Hough's partner did not wish to take the matter through the rigour of a Court case. An agreement was struck whereby Mr Hough eventually faced a charge of common assault, and he pleaded guilty to that charge.

[4] The incident occurred on 18 December 2006. Mr Hough was convicted and ordered to come up for sentence if called upon within the next 12 months. He is currently subject to that suspended sentence.

[5] The suspended sentence was not activated, when there was a second incident involving the same two parties. Having heard from Mr Hough, it is not clear exactly what happened during the second incident. We have taken into account that the matter has not triggered a request to the Court to review the original sentence.

[6] Mr Hough has explained to us how he acted in this way. According to his previous convictions, the behaviour was out of character. He certainly seems to have been working under stressful conditions. He appears to us to be carrying out rather more responsible work as a duty manager than most. His employer owns a large number of licensed premises. Mr Hough is clearly a person who is used and valued by his employer.

[7] Mr Hough has accepted that his actions were inappropriate at the time. He stated that he has never had the opportunity of receiving any assistance. From our own perspective, he appears to be a person who needs to take a step back and review the hours of work that he puts in. This is to ensure that the sort of stressful situation that occurred previously does not happen again. There is no question that Mr Hough has a good attitude towards his responsibilities under the Act. He was easily able to make the connection between his own personal behaviour and his responsibilities as duty manager.

[8] We refer to two cases. One was the case of Anthony William Strange LLA 163/96 in which the Authority said:

"In many occupations off duty conduct is commonly ignored. An exception may arise where the conduct impacts upon work performance. Few trades or professions have a direct legislative link which requires that conduct (including out of hours activities) be considered under the quasi disciplinary procedures of s.135 of the Act. Nevertheless that burden is opposed by Parliament upon licensees under s.132 and managers under the Sale of Liquor Act 1989. Their conduct and suitability may be examined at any time if an application is brought before the Authority."

[9] In the other decision of Jason Peter Loye v Makoto Tokuyama LLA PH 285-286/2006 it was said:

"The applications are before the Authority as part of the continual process for attempting to raise the standards of those charged with the responsibility to managing licensed premises. The expectation is that they will not only ensure the safety of their patrons but set standards higher than would normally be expected for any other form of employment. It is our expectation that all holders of General Manager's Certificates will appreciate that a conviction involving the abuse of liquor is not only contrary to the provisions and objectives of the Act but will place the holding of a General Manager's Certificate at risk."

[10] This was not a conviction involving the abuse of liquor but involves other aspects of living in a pro-social way. It is fair to say that having heard from Mr Hough that we were considerably moved by what has happened to him as a consequence of his appearances in the Court. We originally had in mind a suspension period of six weeks, but have decided to resile from that considerably. The Constable prosecuting the matter on behalf of the Police believes that the appearance on its own may have been sufficient to reinforce the belief that all anti-social behaviour will carry consequences.

[11] In all the circumstances we believe that a nominal period of suspension is appropriate and desirable. Our role in trying to discipline those involved in the industry, is not only to be reasonable, but also to try and raise standards.

[12] For the reasons given, the period of suspension will be 10 days commencing on 1 March 2008.

DATED at WELLINGTON this 10th day of January 2008

B M Holmes
Deputy Secretary

Paul Hough.doc(aw)