Nixon, re [2008] NZLLA 499 (9 April 2008)

Last Updated: 9 July 2010

Decision No. PH 499/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by DANE JOSEPH NIXON 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 TAUPO on 1 April 2008

APPEARANCES

Mr D J Nixon – applicant
Mr G A Singer – Taupo District Licensing Agency Inspector – in opposition
Sergeant J McGrogan – NZ Police – to assist

ORAL DECISION OF THE AUTHORITY

[1] When Parliament passed the Sale of Liquor Amendment Act 1999 it amended s.115(1) to emphasise the fact that a manager must be on duty at all times when liquor was being sold or supplied to the public. The amendment stated that all managers would be responsible for ensuring that the premises complied not only with the Act, but also with the conditions of the governing licence.

[2] On 1 April 2006, the section was further amended and strengthened. It is now the responsibility of all managers not just to ensure compliance with the Act, but also to enforce the Act and the conditions of the licence.

[3] The object of the Act is set out in s.4. The aim is to reasonably control the sale and supply of liquor to the public while at the same time contributing to the reduction of liquor abuse. However, s.4(2) of the Act requires that when we exercise our jurisdiction and powers and discretions, we do so in a manner that is most likely to promote the object of the Act.

[4] Against that background we come to consider an application by Dane Joseph Nixon for a General Manager's Certificate. Mr Nixon's application has with it a number of advantages. For example he has already held a certificate for three years. The certificate lapsed in November 2007. Due to a misunderstanding, Mr Nixon failed to apply to have it renewed. Mr Nixon is the holder of the Licence Controller Qualification.

[5] Mr Nixon has had considerable experience in the hospitality industry. More recently he became the manager of licensed premises known as "Element". His manager has seen fit to come before us to ask us to look favourably on the application. He believes that Mr Nixon is a good person to have as the manager of licensed premises. Not only does he have experience and reliability but he has commitment.

[6] Mr Nixon filed his application on 20 December 2007. He disclosed two convictions at that time. Since then he has incurred a third. The most recent conviction occurred on 5 February 2008 at about 12.30 am. Mr Nixon had been in town consuming liquor. He was described as extremely intoxicated. He acted inappropriately at a taxi stand. He has given an explanation as to why he did what he did. Eventually he entered an unmanned taxi and sat in the driver’s seat. The Police were called.

[7] The details of what happened are not necessarily relevant, although the Sergeant pointed out that when Mr Nixon was apprehended he was uncooperative and belligerent with the Police, and eventually refused to answer questions. Mr Nixon said that basically he was trying to encourage the taxi driver to take him home. He explained that when the Police started asking other questions he declined to answer anymore of them because of the way the questions were going.

[8] The previous incident occurred on 14 October 2007. This was about 3.00 am. There was an incident where he chased some people down the road bare-chested. Eventually there was some form of confrontation. Once again Mr Nixon was apprehended. He had been drinking but not as much as the first incident. He explained that he was to some extent acting to protect other people known to him.

[9] Mr Nixon has pointed out that on both occasions he was charged with disorderly behaviour and on both occasions he was convicted and discharged. The third incident occurred on 17 March 2007. The time was 3.00 am. Mr Nixon had been in town and he had been drinking. He was with associates. There was an altercation in a service station. The nett result was that Mr Nixon disliked the attitude of the people in the vehicle and kicked the back of the vehicle as it left. He was subsequently charged with wilful damage. Once again he was convicted and discharged.

[10] Mr Nixon in his full submission said:

"I acknowledge my mistakes in the past but implore you to give me a chance to show you that I am in fact a fit and proper person to hold a General Manager's Certificate and I will continue to do so well into the future. I hope I've helped shed some light on how they came about. I thank you for your time and ask for your utmost consideration when deciding the fate of my future."

[11] Mr Nixon has already decided his own fate by his actions. Our guidelines are set out in the decision of G L Osborne LLA 2388/95. In that decision we 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] We agree that the convictions are not the most serious of their type. However, they did involve to some extent abuse of alcohol, and there is a pattern of behaviour. We accept that the above decision 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. 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] Even if we looked at a period of 18 months from the last offence that would take us into 2010, well beyond what we regard, (as a matter of policy), a fair and reasonable adjournment period. In other words it is our view that this application is premature, and that the grant of any certificate will be a process rather than an event. Mr Nixon may wish to look at making a further application some 18 months after the date of the last offending.

[14] In summary, we cannot in all conscience, establish a precedent by allowing a person with such an immature record involving the consumption of liquor, to have the right to run licensed premises on his own. For the reasons that we have attempted to articulate, we have no option other than to decline the application.

DATED at WELLINGTON this 9TH day of April 2008

B M Holmes
Deputy Secretary

Dane Nixon.doc(aw)