McLean , re [2009] NZLLA 318 (1 April 2009)

New Zealand Liquor Licensing Authority

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McLean , re [2009] NZLLA 318 (1 April 2009)

Last Updated: 15 March 2010

Decision No. PH 318/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by ANTHONY SEAN MCLEAN pursuant to s.118 of the Act for a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at INVERCARGILL on 16 March 2009

APPEARANCES

Mr A S McLean – applicant
Senior Constable G B Pay – NZ Police – in opposition
Ms L M Grace – representing Medical Officer of Health – to assist

ORAL DECISION OF THE AUTHORITY

[1] In the decision of Horse and Trap Tavern Limited LLA PH 880-881/2005 we made the comment:

"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."

[2] There are about 40,000 holders of certificates throughout the country. While we try and keep a consistent approach on a nationwide basis, there will always be exceptions to the general rule. Our policy has been that certificates should not be issued in a vacuum but should be working documents. To be successful, applicants should have the full committed support of an employer.

[3] It is our view that the certificate itself is not unlike a reference. In other words the certificate implies that the holder is a competent manager who can be trusted to run all sorts of licensed premises on a sole basis. It means that as far as the Authority or the Agency is concerned, the holder is considered to be suitable and experienced and can be trusted to control licensed premises.

[4] It is against the background of that policy that the present application comes to be decided. This is the resumption of a hearing. Mr McLean came before us on 5 September 2007. He applied through a company for an on-licence in respect of a restaurant style business in Te Anau. In addition he and his wife made application for managers' certificates.

[5] In respect of Mr McLean’s application for a manager's certificate we were concerned about his relatively recent behaviour. We adjourned the application for a period of nine months. We said that we would expect him to work in the premises from time to time following the issue of the licence. For the first three months of we indicated that we would not expect any managerial appointment to be for more than 48 hours. After he had worked for some three months, then longer appointments could be made.

[6] We said that if after nine months there were no adverse reports we would grant the application on the papers. Mr McLean carried out those requirements but after nine months the business was sold. During the adjourned period, Mr McLean had been working on his own and had also been under the supervision of his wife who was the holder of a certificate. Since that time Mr McLean has taken other work, which is out of the industry. He has made application for positions in licensed premises without success.

[7] He came before us to uphold what he saw as his right to a certificate. The Police now regard him as suitable, but the fact that he is not in the industry is the difficulty. The issue is whether we should make an exception to our general rule. If he were to be granted a certificate, this could then help him to gain employment.

[8] On a point of principle Mr McLean disagrees with the argument that he should not be granted his certificate because he is not currently involved in the industry.

[9] We have considered the matter. In the circumstances we are not prepared to make an exception for Mr McLean. If he had been employed in licensed premises and had the support of an employer who had seen him work, and was satisfied with his work ethic and knowledge of the Act, then the position would be quite different. There are licensees who will only employ certificate-holding managers. This makes it all the more important that the certificate has been earned.

[10] It is a regrettable situation from Mr McLean's point of view. However, there is nothing to stop him at any time applying for a certificate. Provided he has the prerequisite work, trust and support, and assuming no other adverse matters had arisen in the interim, then the certificate would be granted without any further ado.

[11] For the reasons that we have done our best to set out, the application is declined.

DATED at WELLINGTON this 1st day of April 2009

B M Holmes
Deputy Secretary

Anthony McLean.doc(aw)