Whall, re [2009] NZLLA 344 (3 April 2009)

New Zealand Liquor Licensing Authority

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Whall, re [2009] NZLLA 344 (3 April 2009)

Last Updated: 26 March 2010

Decision No. PH 344/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by BRYCE WILLIAM WHALL 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 QUEENSTOWN on 18 March 2009

APPEARANCES

Mr B W Whall – applicant
Miss J L Montgomery – Queenstown-Lakes District Licensing Agency Inspector – in opposition
Sergeant K P Newell – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Bryce William Whall for a General Manager’s Certificate.

[2] It is fair to say that Mr Whall fulfils most of the criteria set out in s.121 of the Act. He has had about 15 years’ experience in the hospitality industry, although the majority of the time he has been a chef. He has previously held a General Manager’s Certificate and it seems that the certificate expired in March 2008. Mr Whall was a part owner of a café and bar in Dunedin between 2003 and 2005. When he discovered that his certificate had lapsed, Mr Whall made a further application. He was required to disclose a conviction for driving with excess breath alcohol content that had occurred in February 2008.

[3] The evidence shows that Mr Whall was stopped when driving at about 2.00 am on 29 February 2008. This was a random breath testing checkpoint operation. Subsequent evidential breath tests show that he had 601 micrograms of alcohol per litre of breath. Mr Whall is a 33 year old male who has not been in trouble before. He acknowledged the stupidity of the event and stated that he thought he had paced himself correctly. He believed that he displayed no signs of intoxication and has changed his habits since.

[4] His application was supported not only by the Licence Controller Qualification, but also by the general manager of the lodge where he has been working since December 2007. It appears from what he has said that he will be required from time to time to act as a duty manager. His application for a temporary appointment was declined. He understands that if an application of this nature is granted, then it will be necessary for him to show that the manager’s certificate is a working document if he is to obtain a renewal of the certificate.

[5] The standard guideline for dealing with a conviction is set out in the decision of G L Osborne LLA 2388/95. In this decision the Authority indicated firstly that it looked for a period of five years incident free if there had been serious convictions or convictions relating to the abuse of alcohol or arising in the course of an applicant’s duty on licensed premises. The Authority went on to indicate that a two-year period for an isolated drink/driving offence might result in subsequent favourable consideration.

[6] Those are guidelines only. In our view Mr Whall is entitled to some allowance because of the fact that he has previously held a certificate during which time there has never been a problem about his management of licensed premises. Nevertheless the issue is about keeping standards high and reminding managers that the holding of a certificate is a privilege. A manager’s certificate carries certain responsibilities, not the least of which is to set an example on both sides of the bar.

[7] In the circumstances there are sufficient positive factors for us not to decline the application. We propose to adjourn the application for a period of nine months. We will call for reports after that period of time. If they are positive we will grant the application on the papers without a further public hearing.

[8] We suggest that Mr Whall may be appointed as a temporary manager, or acting manager, in the last three months of the adjourned period if the provisions of ss.128 or 129 have been complied with. This is a way of allowing him to integrate slowly into the higher responsibilities involving management of licensed premises. If Mr Whall is unable to see out a period of nine months without getting into further difficulty, then there may have to be another public hearing or the application will be declined.

[9] The application is adjourned on the terms stated.

DATED at WELLINGTON this 3rd day of April 2009

B M Holmes
Deputy Secretary

Bryce Whall.doc(jeh)