Marner v Hogan [2008] NZLLA 751 (2 June 2008)

Last Updated: 22 January 2012

Decision No. PH 751-752/2008

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 or cancellation of General Manager's Certificate number 049/GM/88/2004 issued to IVOR PHILLIP HOGAN

BETWEEN CAROLINE ANNE MARNER
(Police Officer of Wellington)

Applicant

AND IVOR PHILLIP HOGAN

Respondent

AND

IN THE MATTER of an application by IVOR PHILLIP HOGAN pursuant to s.123 of the Act for renewal of a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Dr J Horn

HEARING at WELLINGTON on 13 May 2008

APPEARANCES

Sergeant C A Marner – NZ Police – applicant and in opposition to application for renewal of manager's certificate
Mr I P Hogan – respondent and applicant for renewal of manager's certificate
Mr R S Putze – Wellington District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority are two applications. The first is an application by Ivor Phillip Hogan for the renewal of his General Manager's Certificate.

[2] Mr Hogan was first granted his certificate on 15 March 2004. He used his certificate primarily to assist in running the bar at a sports club associated with the business where he was working.

[3] When he filed his application with the Agency, he was asked whether he had received any convictions since the certificate had been last renewed. He confirmed that he had received a conviction for driving with excess blood alcohol content. This response resulted in adverse reports being received in relation to the renewal, as well as an application brought by the Police for the suspension or cancellation of the certificate. The ground for the application is that Mr Hogan's conduct had been such as to show that he was not a suitable person to continue holding the certificate.

[4] The facts show that on 30 September 2007 at about 1.20 am, Mr Hogan was stopped for a breath alcohol check. This produced a level of 744 micrograms of alcohol per litre of breath. Mr Hogan elected to have a sample of blood taken. The analysis produced a level of 155 milligrams of alcohol per 100 millilitres of blood.

[5] Mr Hogan is a mature individual. This is his first conviction for driving against the drink driving provisions of the Land Transport Act. One cannot help but feel some sympathy for Mr Hogan in his predicament. He had received notification of redundancy earlier in the year, and had then received advice some three days before the incident about personal medical matters which resulted in him acting in this way. He believed he was well able to make the connection between his personal behaviour and the objective of the Act. He contended that he would make a much better manager now than previously. When filing his renewal he wrote a letter apologising for his behaviour, and referring to the stress that he was under at the time.

[6] Mr Hogan is not currently employed in the industry. He is retraining and is keen to work in the IT industry. He would like the opportunity to use his certificate in the hospitality industry in case his first wish does not eventuate. We are prepared to extend him some leniency for compassionate reasons. He needs to be reminded of our policy that certificates will be working documents to ensure that managers keep up with trends in the industry. If after a period of time, Mr Hogan does not have employment in the hospitality industry, then it is unlikely that any further renewal will be made.

[7] The Police referred to the decision of Martin Ferguson v Alastair Robert Lyon LLA PH 57/2003 in which it was said:

“It is our view that if managers are guilty of breaches of the drink driving provisions of the Land Transport Act they must expect their certificates to be suspended for a period. The length of the period should represent a balance between the seriousness of the offending and the maximum term of six months. In the majority of cases such a result will be seen by the Authority as a desirable step towards the promotion of the object of the Act.”

[8] We find that the grounds for the application have been established. In terms of the renewal one of the criteria relate to the conviction itself. For the reasons that we have attempted to articulate the following order are now made. General Manager's Certificate number 049/GM/88/2004, issued to Ivor Phillip Hogan, will be suspended for a period of four weeks commencing on Tuesday 13 May 2008. The General Manager's Certificate will be renewed but for a reduced period being 18 months. This means that it will fall due again for renewal on 15 September 2009. If Mr Hogan is not employed in the industry at that time, it is unlikely that any further renewal will be granted.

DATED at WELLINGTON this 2nd day of June 2008

B M Holmes
Deputy Secretary

Ivor Hogan.doc(aw)