Philpott [2009] NZLLA 1069 (21 September 2009)

Last Updated: 28 January 2012

Decision No. PH 1069/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by BRENT MARTLEW PHILPOTT pursuant to s.123 of the Act for renewal of a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Ms J D Moorhead
Dr J Horn

HEARING at QUEENSTOWN on 31 August 2009

APPEARANCES

Mr B M Philpott – applicant
Sergeant K P Newell – NZ Police – in opposition
Miss J L Montgomery – Queenstown-Lakes District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Brent Martlew Philpott for renewal of a General Manager’s Certificate pursuant to s.123 of the Act.

[2] The certificate was originally issued by the Queenstown-Lakes District Licensing Agency on 25 March 2002. It was subsequently renewed in 2003 and 2006. It was noted in the District Licensing Agency Inspector’s report that the notice of renewal issued in 2006 appears to incorrectly state the date that the certificate was due to expire as being 7 March 2009, instead of 25 March 2009. In any event the application for renewal was lodged prior to the expiry date as it was received by the District Licensing Agency on 23 February 2009.

[3] On the application form Mr Philpott disclosed that he had been convicted of an offence since the certificate was last renewed. He stated that he had been convicted of assaulting a female in October 2007, for which a penalty of Community Service was imposed. The conviction was confirmed during the Police vetting procedures and not unnaturally the Police opposed the application for renewal on the basis of the conviction. The matter was accordingly set down to be determined by the Authority at a public hearing.

[4] The criteria to which we must have regard on a renewal application are set out in s.126 of the Act and are as follows:

• (a) The character and reputation of the applicant:

(b) Any convictions recorded against the applicant since the certificate was issued or last renewed:
(c) The manner in which the manager has managed the sale and supply of liquor pursuant to the licence with the aim of contributing to the reduction of liquor abuse:
(d) Any matters dealt with in any report made under section 124 of this Act.

[5] Section 117A of the Act also precludes renewal of a certificate unless the Licence Controller Qualification is held. That is not an issue here as the applicant has attained the required qualification, a copy of which was attached to the application. The issue here is that of the conviction. The conviction for assaulting a female is a serious matter which also affects the character and reputation of the applicant.

[6] We have heard from Sergeant Keith Philip Newell in relation to the applicant’s conviction history. We note that while there were previous matters, including convictions relating to driving with excess breath alcohol, that these occurred some time ago, the last of which was in 1996, prior to the General Manager’s Certificate being issued.

[7] The only matter that we are therefore concerned with is the recent conviction. The offence took place on 6 October 2007 and the conviction was entered in the Queenstown District Court on 29 October 2007. A summary of facts was provided in relation to the incident which confirmed that the matter arose over a minor domestic matter with his partner.

[8] We heard from Mr Philpott who appeared and gave evidence in support of his application for renewal. We note that Mr Philpott described his occupation as being “apprentice builder/chef” on the application form. He confirmed that he is utilising his General Manager’s Certificate at “Muzza’s Bar and Café” where he has worked since 2004 and in a full time capacity since 2006. Mr Philpott explained that while he had done a building apprenticeship, his main employment is as a chef and that he utilises the certificate when the owners are not available. He confirmed that because of the small nature of the premises the dining area was able to be viewed from the kitchen.

[9] In relation to the particular incident he said that he had learnt from the situation to vent his frustration elsewhere and that he is getting his life back on track. It is now some two years since the incident happened and there have been no repeat occurrences.

[10] We heard from Mr Philpott’s employer, Mr Alistair Robert Brown. Mr Brown said that he had no hesitation in leaving Mr Philpott in charge when he was away and he was confident that there would be no issues when Mr Philpott was in charge. He spoke of Mr Philpott as being a leader and described him as being in the top two percent of people that he had employed at the restaurant. He confirmed that there had been no issues with Mr Philpott’s employment and in fact he was generous in his praise of Mr Philpott in that respect.

[11] We also heard from Mr Philpott’s partner who gave evidence in support of his application. She confirmed that they had now been together for five years. She spoke of them both having learnt from the situation and having moved on.

[12] We understand that there have been no liquor abuse issues brought to the attention of the Police in regard to the licensed premises. While it has a tavern style licence, it concentrates more on family dining. Sergeant Newell in his submissions also noted the fact that the assault incident had not involved liquor abuse.

[13] In the decision known as Deejay Enterprises Limited LLA 531-532/97 it was stated:

“The guiding hand or hands-on operator of any company or the potential holder of a General Manager’s Certificate now receive greater scrutiny from both the Police and other reporting agencies. Character and reputation are closely examined. The law and human desires of patrons frequently tug in different directions. The Police cannot be everywhere. Little but a licensee’s or manager’s character and suitability may stand between upholding the law and turning a blind eye. Self imposed standards in accordance with the law must be set by licensees and holders of General Manager’s Certificates who control and manage licensed premises.”

[14] In the circumstances of this case we have decided to renew the General Manager’s Certificate but for a reduced period. Accordingly General Manager’s Certificate number 068/GM/43/02, issued to Brent Martlew Philpott, will be renewed for a period of 18 months, which means that it will now expire on 25 September 2010.

DATED at WELLINGTON this 21st day of September 2009

B M Holmes
Deputy Secretary

Brent Philpott.doc(jeh)