Walker [2008] NZLLA 958 (11 July 2008)

Last Updated: 26 January 2012

Decision No. PH 958/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by FRANCES JAMES WALKER pursuant to s.118 of the Act for a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Ms J D Moorhead
Mr P M McHaffie

HEARING at AUCKLAND on 20 June 2008

APPEARANCES

Mr F J Walker - applicant
Mr A C Phillips – Auckland District Licensing Agency Inspector – to assist
Constable S R Brown – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Frances James Walker pursuant to s.118 of the Act for a General Manager's Certificate.

[2] The criteria to which we must have regard are set out in s.121 of the Act. They are:

(a) The character and reputation of the applicant:
(b) Any convictions recorded against the applicant:

(c) Any experience, in particular recent experience, that the applicant has had in managing any premises or conveyance in respect of which a licence was in force:

(d) Any relevant training, in particular recent training, that the applicant has undertaken and evidence the applicant holds the prescribed qualification required under section 117A:

(e) Any matters dealt with in any report made under section 119.

[3] The application by Mr Walker is dated 22 February 2008 and he is employed by Lion Nathan in the position of luxury spirits ambassador for New Zealand, a role which he commenced on 7 January 2008. Mr Walker has obtained the Licence Controller Qualification and in an interview with the Inspector displayed a satisfactory knowledge of his legal responsibilities.

[4] The applicant declared no convictions on his application form which was correct at the time he made the application. However a conviction was entered in the Auckland District Court on 3 March 2008 for a drink driving offence which occurred on 13 May 2007. Not unnaturally this produced an adverse report from the Police. It is this conviction which is the only matter of opposition.

[5] The evidence shows that on 13 May 2007 Mr Walker was the driver of a motor vehicle heading west on the northwestern motorway. Mr Walker was stopped at an alcohol checkpoint and a blood sample was taken. Subsequent analysis returned a level of 102 milligrams of alcohol per 100 millilitres of blood. Mr Walker appeared in the Auckland District Court on 3 March 2008 in relation to the charge and was fined $450 but due to special circumstances was not disqualified from driving.

[6] Mr Walker is 32 years of age. He appeared before us. He said that he had held a driving licence in the United Kingdom and New Zealand for a combined length of 10 years and that he had never been convicted of any other offence for driving or otherwise.

[7] He said that in his job as a brand ambassador for the largest multibeverage company in New Zealand, he understands both the dangers and risks of drink driving and the responsibilities he has. He said that he has been working in the hospitality industry for the past 16 years. He has managed several bars, restaurants and members' clubs and had been a licensee in London. He said that he has managed hundreds of special events. Mr Walker said that as part of his job he conducted tastings, demonstrations, training and other events and that holding a General Manager's Certificate would mean that he would be able to do his job more fully and effectively.

[8] The circumstances of the offence are rather unusual in that while Mr Walker gave a blood test showing excess blood alcohol and was subsequently convicted, he was apparently able to blow under the limit of 400 micrograms of alcohol per litre of breath shortly afterwards. We are told that these are the unusual circumstances referred to by the Court which resulted in no disqualification being imposed.

[9] Mr Walker said that he had not intended to drive that particular night. He was apparently working in town and living at Piha at the time, having recently arrived from the United Kingdom. He had apparently arranged to stay with a friend in Kingsland but the friend had had an argument with his girlfriend and had disappeared. Mr Walker found himself with no money for a taxi at 4.00 am and took a risk that he was not over the limit. He admits that he made a mistake by driving on the night of 13 May 2007 but says that he would never allow such a situation to happen again not least because if he did it would mean an instant dismissal from his job.

[10] Constable Steven Roger Brown accepted on behalf of the Police that the extent of the offending appeared to be a one off incident but nevertheless that this was still an offence which shows an abuse of alcohol and should be treated as such. In the decision of G L Osborne LLA 2388/95 the Authority 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."

[11] The Authority went on to state:

“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.”

[12] We were assisted by the submissions of Constable Brown who referred us to the decision of Marcus Vincent Patrick Collins LLA PH 987/2006 where the Authority adjourned the application for a period of 12 months rather than declining it.

[13] We were impressed with Mr Walker and have some sympathy for his situation. In our opinion there are unusual circumstances in this case and accordingly rather than decline the application we are prepared to grant an adjournment of seven months to 20 January 2009. This represents a slightly shorter stand down period than what would normally be expected. If at the end of that time there are no further incidents of an adverse nature we would be prepared to grant the application on the papers.

[14] The certificate if granted would be tagged. Mr Walker has given an undertaking that if granted a certificate it will only be used for his employment with Lion Nathan in his capacity as luxury spirits ambassador for New Zealand.

[15] The application is accordingly adjourned on these terms.

DATED at WELLINGTON this 11th day of July 2008

B M Holmes
Deputy Secretary

Frances Walker.doc(aw)