Kelly, re [2009] NZLLA 379 (8 April 2009)

New Zealand Liquor Licensing Authority

[Index] [Search] [Download] [Help]

---

Kelly, re [2009] NZLLA 379 (8 April 2009)

Last Updated: 3 April 2010

Decision No. PH 379/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by RODGER THOMAS ELLIS KELLY 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 WELLINGTON on 1 April 2009

APPEARANCES

Mr R T E Kelly – applicant
Acting Sergeant S M Cavanagh – NZ Police – in opposition
Mr R S Putze – Wellington District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Rodger Thomas Ellis Kelly to be granted the privilege of holding a General Manager’s Certificate.

[2] The criteria to which we must have regard are set out in s.121 of the Act. These criteria include Mr Kelly's reputation as well as any convictions recorded against him. He is able to satisfy us as to the remaining criteria in that he holds the Licence Controller Qualification. He works for a competent employer and has been working at licensed premises for at least 12 months towards advancement in the industry.

[3] According to his employer he has proved to be reliable, honest and more than competent in dealing with the public during his day to day operation of the bar. He was supported at the hearing by a fellow worker who holds a General Manager’s Certificate. He produced a supportive reference from the father of his current partner.

[4] When he filed his application Mr Kelly was asked whether he had any convictions. He ticked the box which said "yes" and said "it was a few years ago so can't remember. Theft I think". This in effect did not tell the full story and resulted in one of the reasons for the Police objections.

[5] Mr Kelly, like other young men, had a purple patch between the years of 2002 and 2003 when he incurred no less than 11 convictions. The majority of them were for dishonesty. Mr Kelly received community based sentences in respect of all of them. When he matured he stopped appearing in the District Court.

[6] He stated that he did not attempt to mislead the Agency or the Authority and that he had never attempted to hide the convictions. He said that he did not think properly about it. To some extent we give him the benefit of the doubt although it has always been our policy that a failure to disclose convictions does lead to questions about suitability.

[7] Mr Kelly aggravated these historical matters by getting into trouble on 28 June 2007 at about 4.30 am. He had been drinking and was assessed as being extremely intoxicated. His associate approached a gate and removed a two metre long galvanised chain which had a value of approximately $80. The chain was handed to Mr Kelly who walked down a 60 metre driveway before a passing patrol car saw him. At that stage the chain was hanging over Mr Kelly's shoulder. Mr Kelly admitted taking the chain but said that he was acting stupidly, if not drunkenly. Mr Kelly pleaded guilty to a charge of theft and was ordered to carry out community work.

[8] The person who acted in this way did not appear to be the person who gave evidence before us. Mr Kelly says that he is very passionate about his chosen career and has been in the hospitality industry for about two years. He is keen to advance and was easily able to make the connection between the object of the Act and his own personal behaviour. He has the support of an employer as well as his associates.

[9] On the other hand, he is 24 years of age and the relative recency of the conviction is a cause of some concern. The Police have pointed out a guideline decision of G L Osborne LLA 2388/95 where 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."

“Less serious convictions are also weighed. By way of example is an isolated excess breath or blood alcohol conviction or a single driving offence disclosing no pattern of offending. Nevertheless all convictions must be weighed as required by s.121(1)(b). In these and similar cases we frequently indicate that a minimum of two years from the date of conviction may result in subsequent favourable consideration providing suitable reports from both the Police and a Licensing Inspector are received.”

[10] To some extent the last event was isolated. However, it involved the abuse of liquor. Mr Kelly believes that he should be able to put the past behind him.

[11] Doing the best we can in balancing all competing factors, we are not prepared to grant the application at this time. In the light of his support we are not inclined to refuse it either. It is our view that the grant of this application will be a process rather than an event.

[12] The application will be adjourned for a period of six months. In the last three months of the adjourned period there is no reason why Mr Kelly cannot be appointed as a temporary manager, given the premises where he works and the confidence of his employer.

[13] After six months we will call for reports. If they are positive and Mr Kelly has had experience in controlling licensed premises as a temporary manager, then we would be prepared to grant the application on the papers without a further hearing. If on the other hand there are still concerns raised by the reporting Agencies, a further public hearing may be necessary.

[14] The application is adjourned on those terms.

DATED at WELLINGTON this 8th day of April 2009

B M Holmes
Deputy Secretary

Rodger Kelly.doc(aw)