He [2009] NZLLA 1294 (20 November 2009)

Last Updated: 29 January 2012

Decision No.PH 1294/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by ZHONGXIAN HE 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 27 October 2009

APPEARANCES

Mr S Cullen – for applicant
Mr D Thomson – Auckland District Licensing Agency Inspector – in opposition
Sergeant J P Loye – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority for determination is an application by Zhongxian He for a General Manager’s Certificate.

[2] The application was received by the Auckland District Licensing Agency on 8 July 2009. It was accompanied by a copy of the Licence Controller Qualification dated 12 September 2006. On the application form Ms He said that at that time she had been working at “GPK Bar & Restaurant” for two and a half years and she also supplied an employer’s reference.

[3] She was interviewed by an Inspector of the District Licensing Agency and was able to satisfy the Inspector as to her knowledge and understanding of her responsibilities under the Sale of Liquor Act. Indeed this is the second time that Ms He has made an application for a General Manager’s Certificate. The first application was made in September 2006 but due to Police opposition, as the result of recent drink/driving convictions, Ms He obtained advice and withdrew that application. The most recent application also attracted opposition from the Police on the basis of the previous convictions for drink/driving. Accordingly the matter was set down for a public hearing.

[4] Sergeant Jason Peter Loye is currently appointed as the Alcohol Harm Reduction Co-ordinator for the Auckland City West Policing Area. He gave evidence that his office received the application for the General Manager’s Certificate and that it was noted that the applicant had indicated on the application form that she had been convicted of a third drink/driving offence on 20 July 2006. As part of the vetting procedures checks were carried out and it was identified that the applicant had a history, starting in 2002, of four drink/driving charges and one of driving whilst disqualified.

[5] The dates of the offences for driving with excess blood or breath alcohol are 8 June 2002, 24 August 2002, 3 October 2004 and the most recent being 19 November 2005 which was also the offence date for driving while disqualified. It is noted that indefinite periods of disqualification were imposed on the last two convictions in 2004 and 2006.

Ms He gave evidence and confirmed that she is still employed at “GPK Bar & Restaurant” and that she has now worked there for almost three years. She is now 26 years of age. Ms He explained that she first came to New Zealand by herself at the age of 17 years, originally to study on a student visa. She acknowledged that this was a point in her life when she lost control and the convictions followed. That period in her life took place over about four years. She says that she has since grown up and that she has sought to establish and develop a career for herself in the hospitality industry. This is a matter that she takes most seriously and she has supplied, with the assistance of her counsel, numerous character testimonials and certificates obtained in the hospitality industry over the last three years. It was pointed out by Mr Cullen on her behalf, that the last offence date is now almost four years ago. She has endeavoured to help in the community although it was acknowledged that this work initially began as part of her sentence when she was required to do community work. She has however, continued to work for the Citizens Advice Bureau of her own accord in order to assist Chinese speaking people who find themselves in difficulty and need assistance. She has been promoted in her job at the restaurant and we understand from Ms He that if she were to obtain her General Manager’s Certificate, she may be promoted further.

[6] The criteria that we must consider are set out in s.121 of the Act as follows:

(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 controlling 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 that the applicant holds the prescribed qualification required under section 117A:
(e) Any matters dealt with in any report made under section 119.

[7] The issue in this case is that of the pattern of offending, in particular alcohol related offending, which inevitably has some impact on the character and reputation of the applicant and her suitability to hold a General Manager’s Certificate. The guideline decision in relation to previous convictions involving liquor abuse is that of Graeme Leslie Osborne LLA 2388/95 in which it was stated:

"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."

[8] The Authority in that case then went on to say that less serious convictions were also weighed and reference was made in the decision to an isolated excess breath or blood alcohol conviction disclosing no pattern of offending. The Authority indicated that if there was an isolated incident, then a conviction free period of two years might result in subsequent favourable consideration. We normally have a policy that three years might be an appropriate period of time if there are two convictions. This is to enable an applicant to show that he or she has learned from the experience of the past and is able to apply those experiences in a leadership role. In this case however, there are four convictions.

[9] Our position is about keeping standards high in the industry. We have a strong belief that if such standards are kept at a high level, then the long-term expectation is that the objective of the Act will be met.

[10] In balancing all these matters we are not yet persuaded that the applicant has reached the stage where she should step up in the industry. We congratulate her on the changes that she has made to her life in the last few years, which can only be positive. However, in terms of precedent we do not feel that the time has yet arrived for a certificate to be granted. We are not persuaded that we should go outside the precedent decision in Osborne (supra).

[11] However, we take note of the fact that it is now some four years since the date of the last offence and that substantial changes have been made in Ms He’s life in that time. She has provided, as part of the evidence before us, an assessment as to her alcohol consumption, which she underwent as part of the process of obtaining her driver’s licence back, which she has now done. We also understand that her application for citizenship, which had previously been put on hold, has also recently been granted.

[12] We see this application as part of the process that Ms He has been going through to reorder her life. Her counsel, Mr Cullen, also spoke on her behalf and said that he has known her since she was 19 years old and that he has been impressed with her attitude and the changes that she has made to her life.

[13] Accordingly, rather than refuse it we are prepared to adjourn the application for a period of 12 months. After that time we would expect to hear from Ms He again at a public hearing. We would also expect to hear from any employer at that time.

[14] Accordingly the application is now adjourned.

DATED at WELLINGTON this 20th day of November 2009

B M Holmes
Deputy Secretary

Zhongxian He.doc(jeh)