Smith, re [2008] NZLLA 366 (11 March 2008)

Last Updated: 1 April 2010

Decision No.PH 366/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by JOEL WENTWORTH SMITH 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: Ms J D Moorhead

HEARING at TAURANGA on 26 February 2008

APPEARANCES

Mr J W Smith – applicant
Mr N W Gilbert – Tauranga District Licensing Agency Inspector – in opposition
Sergeant N P McGlone – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Joel Wentworth Smith for a General Manager's Certificate.

[2] The application was filed with the District Licensing Agency on 5 December 2007. Mr Smith fulfils most of the criteria set out in s.121 of the Act. He has been in hospitality since a very young age. He worked as a chef at the age of 16. He has had experience, albeit not in a controlling capacity, in two licensed premises. He is the holder of the Licence Controller Qualification. Mr Smith is anxious to obtain a certificate to further his employment opportunities.

[3] Under s.121 of the Act however there were adverse reports filed based on:

• [a] A relevant conviction and
  
• [b] His character and reputation which therefore raises the issue of suitability.
  

[4] Mr Smith was born on 22 February 1988. On 27 September 2006, at the age of 18 he was stopped while driving and recorded a blood alcohol level of 40 milligrams of alcohol per 100 millilitres of blood. The legal limit for a person under the age of 20 is 30. Mr Smith was in due course taken before the District Court where he was fined some $200 with costs and medical expenses, and disqualified for the minimum period of three months.

[5] That conviction, involving as it does a form of liquor abuse, resulted in adverse reports. Mr Smith was appointed as a temporary manager but the appointment was opposed and in due course declined by the Authority. Mr Smith was advised that he needed to wait a little while. He was keen to pursue the application as he is entitled to do. Accordingly, the matter was set down for a public hearing.

[6] At the hearing we heard from Sergeant N P McGlone who is the subdistrict liquor licensing co-ordinator for the Western Bay of Plenty Police area. Sergeant McGlone made a number of submissions based on the role of the regulatory agencies in the area. They have formed an excellent partnership and now strive for a consistent and fair approach to the monitoring and enforcement roles that they have. In his submissions, he noted that while the opposition may cause inconvenience to applicants that is the price to be paid for not conducting oneself in a manner that is expected of current or potential managers.

[7] The District Licensing Agency Inspector acknowledged that he had no difficulty about Mr Smith's ability. He was also concerned that there be a form of consistency and equity in dealing with applications. It is an interesting scenario as to whether or not a conviction at the age of 18 is more or less serious than a conviction by a more mature person with the same level.

[8] Mr Smith thought it was unfair and made little sense to him that he could be punished twice. This was because of the suggestion that he was going to have to spend some time waiting until he could obtain his certificate. He pointed out that such a delay might affect his job. We did not hear from Mr Smith's employer. We note a decision of Anthony William Strange LLA 1632/96 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 imposed 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] This case, like others, is about raising the bar of those entrusted with the sole charge of the sale and supply of liquor to the public. We perceive it as our duty to ensure that the standards are higher than for those people involved in the industry that might be the case with other vocations. Both the Inspector and the Sergeant have referred us to the guideline decision of In G L Osborne LLA 2388/95. It is important to note that this decision 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."

[10] The Authority did go 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. 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.”

[11] Having heard from Mr Smith we have been not moved to deviate from the guidelines. We do not believe that we should make an exception for him based on his own personal circumstances. We therefore have decided that this case will be dealt with in the same way as others. There will be an adjournment for a period of eight months. We indicate in our decision that after a period of two months, there is no reason why Mr Smith should not be appointed as a temporary manager of the premises where he works provided the provisions of s.128 of the Act are met. In that way there will be a six-month period of time where he can gain the necessary experience required in controlling licensed premises.

[12] After a period of eight months, if there are no adverse reports received from the Police or the District Licensing Agency Inspector, then we will have little hesitation in granting the application on the papers. If there are however adverse reports a further public hearing may be necessary.

[13] The application is adjourned accordingly.

DATED at WELLINGTON this 11TH day of March 2008

B M Holmes
Deputy Secretary

Joel Smith.doc(aw)