McArtney, re [2008] NZLLA 4 (10 January 2008)

Last Updated: 14 February 2010

Decision No. PH 4/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by ROBERT IAN McARTNEY 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 AUCKLAND on 17 December 2007

APPEARANCES

Mr R I McArtney – applicant
Mr E K Dyssel – North Shore District Licensing Agency Inspector – in opposition
Constable S J Mortensen – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Robert Ian McArtney for a General Manager's Certificate.

[2] When he filed his application in June of this year Mr McArtney was working at licensed premises known as the "Poenamo Hotel" in Takapuna. He had previous experience in premises in particular the "Lime Bar" at Paraparaumu. He had completed a course of training with the Hospitality Training Company.

[3] Mr McArtney was required to complete a written assessment in June 2007. He failed this assessment although the actual details of how the test was failed are not known. However, at that time the Police had opposed the application. Accordingly, Mr McArtney was not required to complete a second assessment. It will of course be necessary for him to do so successfully, before he can be granted his General Manager's Certificate.

[4] There was a second concern from the Inspector. Mr McArtney had failed to disclose his entire criminal and traffic history. Any failure to correctly disclose previous offending history is a matter that needs to be taken into account when assessing suitability.

[5] The application was referred to the Police. Constable Shontahl Jaydi Mortensen is the licensing constable for the North Shore area. Her duties include a requirement to vet such applications. She stated the object of the vetting process was to ensure that persons who have shown a disregard of community laws and standards are prevented from entering the liquor industry where there is a perceived risk that their previous behaviour may contribute to liquor abuse.

[6] The applicant has a serious list of previous convictions. It is accepted that the majority of his offending, (some 22 convictions), relates to a time some 24 years ago when Mr McArtney was a young person and clearly out of control. As he said the conviction were incurred over 20 years ago.

[7] However in 2005, Mr McArtney was stopped while driving a motor vehicle. He was found to have been a disqualified driver, having been disqualified for a period of six months in May of that year. He was stopped in August and gave the name of a twin brother. His passport was locatable. Mr McArtney was heading south. He had some white powder with him. Also in the search was found a small plastic bag with enough cannabis for two cigarettes. On the front passenger seat was a used glass pipe inside a sunglasses case. In a brown wallet was a small teaspoon. There was a butane burner in the glovebox. And in the drivers door compartment was a metal extendable baton.

[8] Mr McArtney said in explanation to the Police that he was attempting to move to Wellington and that is why he had to drive. He said the white powder was crushed Sudafed that he was going to sell as ‘speed’ to make some money. He said the cannabis was for his own use. He denied knowing anything about the pipe and said that the lighter was for legitimate purposes as was the teaspoon. He accepted that the baton was for his own protection.

[9] All this does not make good reading. It is to be remembered that these incidents occurred a little over two years ago.

[10] Mr McArtney has exacerbated that situation to some extent by two subsequent convictions for driving while disqualified. He has now moved to a residence where he no longer requires his licence to get to work, and he has sold his vehicle. It is to be hoped that convictions for driving while disqualified have stopped. It could be argued that those who drive in the face of a disqualification order show a disregard for community laws. On the other hand there is no suggestion that the abuse of liquor is involved at all. He has never had previous convictions involving drugs. He says that he stopped using drugs in mid 2005, at a time when he was going through a bad patch in his life.

[11] The final matter involving Mr McArtney was in relation to an incident when he was appointed as a duty manager. There was a dance party that was to be held at the "Logan Campbell Centre". The licence was issued to the Auckland Agricultural Pastoral Industrial Show Board. The Board’s licence was suspended for a period of two days following an incident in which the premises became overcrowded. It is clear that at least 1,000 persons were sold tickets in excess of the capacity of the premises. It was alleged that there were incidents of fighting and disorder and there were allegations of intoxication. As the manager of the premises Mr McArtney had indicated that the event had progressed to a point beyond managerial control.

[12] The issue for us is whether Mr McArtney can be trusted to run licensed premises on his own. Normally the application would be declined. On this occasion however we have had the benefit of hearing from Mr David de Klerk who is part owner of the "Stadium Bar and Brasserie" which is situated in Normandy. He has employed Mr McArtney for some three to four months. He has trained him to take over the premises so that he and his wife can have a break from time to time. He had no hesitation in stating that he would be prepared to allow Mr McArtney to run the premises on his own. He has already given him a large amount of managerial responsibility, including the checking of the gaming machines, and has no cause to distrust him, notwithstanding what he has heard at the public hearing.

[13] Mr McArtney has given an undertaking that if granted a General Manager's Certificate, he would only work at the premises known as "Stadium Bar and Brasserie" for Mr David de Klerk. That undertaking cannot bind Mr McArtney forever. He is entitled to apply for an exemption from the undertaking from an Inspector. If that is unsuccessful, he can apply to us. However, at this stage the undertaking binds Mr McArtney to the premises, if he wished to act in a managerial capacity.

[14] Mr de Klerk has asked for the opportunity for Mr McArtney to prove himself. As stated above, normally we would have refused the application. The previous history gives little room for confidence. However, in view of the request made by Mr de Klerk, and taking into account the difficulty that some licensees have in recruiting qualified managers that they can train and trust, we are prepared not to refuse the application at this time. It is clear that this application will become a process and not an event.

[15] Mr McArtney may be appointed as a temporary manager from 9 April 2008 providing the provisions of s.128 have been complied with. That is just 12 months from the date that he last drove while disqualified. A further public hearing will be scheduled for December 2008. Prior to that hearing taking place, Mr McArtney will be required to sit a further written assessment and to pass it. He will be required to obtain the Licence Controller Qualification and present a copy to the District Licensing Agency. He will be under no illusion that any further offending of any description, will mean that the application when it comes before us, will ultimately be declined.

[16] Those are the challenges that Mr McArtney faces. In summary, the application will be adjourned for a further public hearing in 12 months time. In April next year Mr McArtney can step up a stage by being appointed as a temporary manager.

[17] The application is adjourned on those terms.

DATED at WELLINGTON this 10th day of January 2008

B M Holmes
Deputy secretary

Robert McArtney.doc(aw)