Ure v Mahina [2009] NZLLA 310 (1 April 2009)

New Zealand Liquor Licensing Authority

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Ure v Mahina [2009] NZLLA 310 (1 April 2009)

Last Updated: 14 March 2010

Decision No. PH 310/2009

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 2007/32 issued to FINE MAHINA

BETWEEN JAMES HARVIE URE

(Police Officer of Te Anau)

Applicant

AND FINE MAHINA

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at INVERCARGILL on 16 March 2009

APPEARANCES

Senior Constable G B Pay – NZ Police – applicant
Mr F Mahina – respondent
Ms L M Grace – representing Medical Officer of Health – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application brought by the Police for the suspension of a General Manager’s Certificate issued to Fine Mahina. Mr Mahina was granted his certificate on 5 March 2008. He uses the certificate to help to control the sale and supply of liquor on board a tourist vessel, which plies the Milford Sounds.

[2] Mr Mahina was residing in Te Anau last year and a search warrant was executed. During the search, cannabis utensils were discovered. They were openly displayed. In addition to a cannabis bong, 178 cannabis seeds were found in an empty whisky bottle.

[3] Mr Mahina admitted ownership but declined to offer any explanation. He was taken before the District Court and was offered diversion. As a result of him successfully completing the diversion contract, the two charges were withdrawn.

[4] The purpose behind the Police initiative for diversion is basically to give a person a second chance at being able to lead a prosocial lifestyle without the impediment of a conviction. Mr Mahina asked how his private conduct could be used against him in terms of his being the holder of a manager's certificate. In the decision of Henry v Strange LLA 1632/96, involving an application for cancellation of a General Manager's Certificate, it was said:

"In many occupations off-duty conduct is commonly ignored. An exception may arise when the conduct impacts upon work performance. Few trades or professions have a direct legislative link which requires that conduct - including out of hours activities, be considered under the quasi-disciplinary procedure of s.135 of the Act. Nevertheless, that burden is imposed by Parliament on licensees (under s.132) and managers under the Sale of Liquor Act 1989. Their conduct and suitability may be examined at any time if an application is brought before this Authority."

[5] In other words we are specifically empowered to look at off-duty conduct that may impact on the holding of a General Manager’s Certificate. In this case Mr Mahina has the advantage in that the matter was not taken to its final conclusion. However, he acknowledged that he was involved with smoking cannabis. He gave the impression that the seeds had simply been collected, and there was no intention to use them. The presence of a bong would indicate a degree of sophistication with the drug.

[6] Mr Mahina stated that on the day that the warrant was executed, he decided to have no further involvement with the drug. We can only accept his word for that self-assessment. However, he made the point that involvement with drugs could have a major impact on his job and his income since drug testing is carried out regularly.

[7] We accept what he has to say in respect of those matters. Nevertheless there is a regrettable connection between the use and abuse of the illegal substance and the supply of liquor. In the circumstances we have determined that there should be a consequence for his illegal activity.

[8] For the reasons stated General Manager’s Certificate number GM 2007/32, issued to Fine Mahina, will be suspended for three weeks commencing on Monday 16 March 2009.

DATED at WELLINGTON this 1st day of April 2009

B M Holmes
Deputy Secretary

Fine Mahina.doc(aw)