Manch v Trayling [2009] NZLLA 1145 (13 October 2009)

Last Updated: 28 January 2012

Decision No. PH 1145/2009

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 of General Manager’s Certificate number GM/060/1277/2007 issued to SUSAN KAY TRAYLING

BETWEEN GARY EDWARD MANCH
(Police Officer of Christchurch)

Applicant

AND SUSAN KAY TRAYLING

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at CHRISTCHURCH on 22 September 2009

APPEARANCES

Sergeant A J Lawn – NZ Police – applicant
Ms S K Trayling – respondent
Mr M Ferguson – Christchurch District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application, dated 11 March 2009, brought by the Police for the suspension of a General Manager’s Certificate issued to Susan Kay Trayling.

[2] Ms Trayling is a mature person who was granted her General Manager’s Certificate on 7 September 2007. The certificate was renewed late last year. This application has been brought on the ground that the manager’s conduct has been such as to show a lack of suitability to hold the certificate.

[3] The evidence is that Ms Trayling has rented part of her property to others on the basis that she slept in a sleep-out on the property. The arrangement was that she was able to occasionally use some of the facilities in the rented home. She had difficulties with a previous tenant. On or about 29 January last she was having even further difficulties with the present tenants, a male and a female.

[4] The allegation is that at about 3.00 pm on 29 January 2009 her tenant was in bed when Ms Trayling came into the address requesting the rent. She acknowledges that she punched the female victim three times. She stated that on the first occasion the blow was struck in anger. Thereafter blows were struck in order to prevent a brawl from happening. Ms Trayling was told by the victim that the victim’s partner would pay her rent and she subsequently left her own address to speak to him.

[5] Ms Trayling operates a small café which has a BYO licence. The victim’s partner came to the café at approximately 3.30 pm when a further argument ensued. Ms Trayling compounded her earlier conduct by punching the male in the mouth. She was spoken to by the Police that day. She told them that the victims had been nasty to her and owed her money.

[6] Ms Trayling is 51 years of age and has not been in this sort of trouble before. As a result of the offending she faced two charges of assault under the Crimes Act 1961. The Detective Constable, who spoke with her, thought that she was acting a little strangely and that her behaviour seemed to be erratic. She admitted that she had smoked some cannabis and there was a small amount of cannabis found on her person. She subsequently received a warning for this offence.

[7] Ms Trayling said that she had not smoked prior to going into the house but she smoked a little amount after the event in order to calm down. Where the truth lies is not easy to establish. Ms Trayling stated that she would not think of smoking whilst she was running the café. However, she did acknowledge that she does occasionally smoke cannabis. She seemed to be aware that this is an illegal substance and that it can have short and long term impacts on her health.

[8] It is clear to us that her conduct on this day was well below the expectations of the holder of a manager’s certificate. On the other hand to take away Ms Trayling’s certificate would effectively mean that she could no longer operate the on-licence. It appears that she would be unable to afford to employ the services of another certificated manager.

[9] Ms Trayling has been quite open with us. There are a number of ways of dealing with this issue. Ms Trayling has given an undertaking that if she was able to keep her certificate it would be used only in the operation of the business. If the business was ever sold then clearly she would no longer require her certificate. The business is known as “The Sand Dance Café” in New Brighton. Ms Trayling produced three very supportive and positive references.

[10] After considering the issues we have decided to make an order under s.135(7) of the Act. The application for suspension is now adjourned for nine months. This is for two reasons. First the adjourned period will give Ms Trayling an opportunity to show that the incidents were isolated. We accept that there was a degree of provocation leading her to act in this way. If there are no other incidents she will have gone some way to confirming her intention not to repeat such behaviour. Secondly we think it is important that she undergo a drug and alcohol assessment. If we are satisfied with the results of that assessment then we intend to take the matter no further. If on the other hand issues are raised by that assessment then it may be that a further hearing will be necessary.

[11] Therefore in summary Ms Trayling has nine months to establish that the use of an illegal drug is not a permanent part of her life, and that she has learnt lessons from her misconduct and is able to apply the experience in a much more pro-social way.

[12] The application is adjourned accordingly.

DATED at WELLINGTON this 13th day of October 2009

B M Holmes
Deputy Secretary

Susan Trayling.doc(jeh)