Newell v Cavanagh [2009] NZLLA 1092 (30 September 2009)

Last Updated: 28 January 2012

Decision No. PH 1092/2009

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 068/GM/306/08 issued to BRADLEY DAVID CAVANAGH

BETWEEN KEITH PHILIP NEWELL
(Police Officer of Queenstown)

Applicant

AND BRADLEY DAVID CAVANAGH

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Ms J D Moorhead
Dr J Horn

HEARING at QUEENSTOWN on 31 August 2009

APPEARANCES
Sergeant K P Newell – NZ Police – applicant
Mr B D Cavanagh – respondent
Miss J L Montgomery – Queenstown-Lakes District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority is an application by the Police for the suspension or cancellation of the General Manager’s Certificate issued to Bradley David Cavanagh. The application is made pursuant to s.135 of the Act and was received by the Authority on 21 July 2009.

[2] Mr Cavanagh was issued with a General Manager’s Certificate by the Queenstown-Lakes District Licensing Agency in November 2008. It is due to expire on 19 November 2009. He is accordingly still within what is commonly termed the first probationary year.

[3] The ground for the Police application is that the conduct of the manager is such as to show that he is not a suitable person to hold a manager’s certificate. In particular it was alleged that Mr Cavanagh was convicted of driving with an excess breath alcohol level on 13 July 2009.

The Police

[4] Sergeant Keith Newell is the Alcohol Harm Reduction Officer for Queenstown. He produced a criminal and traffic history for Mr Cavanagh together with a Summary of Facts in relation to the recent conviction. The evidence shows that at about 6.00 am on Sunday 21 June 2009 Mr Cavanagh was the driver of a Toyota motor vehicle travelling west on Robins Road. The vehicle was stopped for breath alcohol procedures. When spoken to by Police Mr Cavanagh exhibited signs of recent alcohol intake. Breath test procedures were carried out and his breath was found to contain 768 micrograms of alcohol per litre of breath. In explanation he stated that he had been drinking earlier in the night and was on his way to work. Mr Cavanagh was subsequently convicted in the Queenstown District Court, fined $850 and disqualified from holding or obtaining a driver’s licence for a period of nine months.

[5] This was his second offence for driving with excess breath alcohol. On 11 January 2005 Mr Cavanagh was convicted of driving with a breath alcohol level of 537 micrograms of alcohol per litre of breath. On that occasion he was fined $550 and disqualified from driving for six months. The Police submit that Mr Cavanagh’s conduct in incurring two convictions for drink driving within five years brings his suitability to hold a General Manager’s Certificate into question.

The Respondent

[6] We heard from Mr Cavanagh at the hearing. He said that he had been utilising the certificate at “Beaver Liquor” in Queenstown where he was the weekend manager. He said however, that as a result of the recent conviction his employment there ended on 25 August 2009.

[7] In regard to the incident Mr Cavanagh said that he had been at a friend’s birthday party the night before. He had quite a lot to drink and said that he must have had more than he thought. He thought that he had slept the effects of the alcohol off but had had only four hours sleep. He had consumed no breakfast and was due to start work at 6.00 am about the same time he was stopped by Police. We note that the legal limit is 400 micrograms of alcohol per litre of breath so his level at the time he was apprehended was almost double the legal limit.

[8] Mr Cavanagh also spoke about the offence in 2005. On that occasion too he had been drinking and had had some sleep. Similarly on that occasion he thought he had had sufficient time to sleep it off and had been apprehended when driving the next morning.

[9] Mr Cavanagh said that he wished to remain in the hospitality industry and seek bar work. We were concerned that although now aged 26 Mr Cavanagh seemed remarkably immature. His drinking habits were also a matter of concern. He did not initially seem to appreciate that his manner of drinking was a problem, saying only that he had “bad judgement when drunk”. He did however eventually acknowledge that his actions were not appropriate in terms of the object of the Act.

The Authority’s Decision and Reasons

[10] The Authority is required pursuant s.4(2) of the Act to exercise its jurisdiction, powers, and discretions under the Act in the manner that is most likely to promote the object of the Act. That object is set out in s.4(1) as follows:

4. Object of Act

(1) The object of this Act is to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse, so far as that can be achieved by legislative means.

[11] On an application such as this we are required to first be satisfied that the grounds of the allegation have been established and secondly if that is the case that it is desirable to make an order.

[12] As was said in Deejay Enterprises Limited LLA PH 531–532/97:

“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.”

[13] In the decision known as Horse and Trap Tavern Limited LLA PH 880-881/2005 the Authority made these comments:

“We believe that raising the bar for the holders of General Managers' Certificates and keeping it at a certain height has the potential to bring about a reduction in the abuse of liquor nationwide. If certain otherwise meritorious applicants suffer in the process that may not be too high a price to pay in order to achieve this long term goal.”

[14] There is no question that Mr Cavanagh has let himself down. All in all he displayed conduct which brings his suitability into question. His conduct and behaviour have not come up to expectations. In addition there are elements of liquor abuse which do not seem to be fully appreciated by Mr Cavanagh.

[15] We are satisfied that the grounds of the application have been made out and that it is desirable to make an order. We found that we had no confidence in Mr Cavanagh’s judgement. It would appear that he has also lost the confidence of his previous employer. Mr Cavanagh seemed to us to have little understanding of the responsibilities and standards we expect of those who hold General Managers’ Certificates.

[16] As indicated to Mr Cavanagh at the hearing we were seriously considering cancelling the certificate and reserved our decision to consider the matter further. Normally speaking we would not cancel a certificate based on the two convictions given that they were some four years apart. We note that the fact that the existence of the first offence had not prevented him from initially obtaining his manager’s certificate in November 2008. However, this second offence now raises the likelihood that what was an isolated incident now appears to be part of a remarkably similar pattern of offending.

[17] More importantly, we take into account the fact that the most recent offence occurred within seven months of the grant of the certificate. Mr Cavanagh’s blood alcohol level was almost twice the permissible limit and he was on his way to work at licensed premises at the time he was apprehended. Furthermore, he is not currently employed in the industry. We are satisfied that his conduct shows a lack of suitability and we consider that it is desirable in the circumstances to cancel the certificate.

[18] In so doing we refer Mr Cavanagh to the decision of D T Hayford v Christchurch District Licensing Agency High Court Christchurch AP 201/92 in which Holland J stated:

“I said a few minutes ago that a finding should not be infinite, it may well be that he should be given another chance. That will be for the tribunal having the authority of deciding whether or not a new license is to be granted. I would not want it to be said that because this Court has said he is a person unsuitable to carry on a license that that should permanently be regarded as the situation.”

[19] We conclude our decision by saying to Mr Cavanagh that there is nothing to prevent him from returning to the industry in a managerial capacity provided of course that he has the committed support of an employer and has addressed whatever it was that made him act in this way. What he has to prove is that he is ready to take back the responsibility of leadership and live up to our expectations. We can indicate that we would not expect such an application to receive favourable consideration until a period of at least 12 to 18 months has expired.

[20] For the reasons that have been stated we confirm that General Manager’s Certificate number 068/GM/306/08, issued to Bradley David Cavanagh, is now cancelled.

DATED at WELLINGTON this 30TH day of September 2009

B M Holmes
Deputy Secretary

Bradley David Cavanagh.doc