Chenery v Jonas [2009] NZLLA 445 (26 April 2009)

New Zealand Liquor Licensing Authority

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Chenery v Jonas [2009] NZLLA 445 (26 April 2009)

Last Updated: 17 April 2010

Decision No. PH 445/2009

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/005/328/2007 issued to SIMON DAVID JONAS

BETWEEN SHONTAHL JAYDI CHENERY

(Police Officer of North Shore)

Applicant

AND SIMON DAVID JONAS

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms J D Moorhead

HEARING at AUCKLAND on 15 April 2009

APPEARANCES

Constable S J Chenery – NZ Police – applicant
Mr S D Jonas – respondent

ORAL DECISION OF THE AUTHORITY

[1] This is an application brought by the Police for the suspension of a General Manager’s Certificate issued to Simon David Jones.

[2] The application is brought on the ground that the conduct of the manager has been such as to show a lack of suitability. In their submissions the Police suggested that the reason for bringing the application is to ensure that persons who have shown a disregard of community laws and standards are prevented from entering or working in the alcohol industry. This is particularly so where there is a perceived risk that their previous behaviour may contribute to liquor abuse or inappropriate management of licensed premises.

[3] Mr Jonas is 26 years of age. He will be 27 next month. He was granted his certificate on 6 December 2007. The evidence is that at about 3.51 am a vehicle that he was driving was stopped in Parnell, Auckland. He failed a breath screening test and a subsequent blood test procedure was carried out. On analysis the blood sample was found to contain 88 milligrams of alcohol per 100 millilitres of blood.

[4] This was Mr Jonas's first offence. The level was not particularly high although the incident occurred during his probationary year. Mr Jonas was easily able to make the connection between his conduct and the object of the Act. Although he works in premises that could not be described as trouble free he seems to be well aware of his responsibilities as a duty manager.

[5] It seems to us that the incident itself could not be described as a particularly bad example of a liquor abuse issue. Mr Jonas had the support of the director of the company that employs him. He referred to the fact that he has already suffered the indignity and cost of an appearance in the District Court together with the inconvenience of disqualification.

[6] The first issue is whether there should be any further penalty? His appearance before us is part of an educative process aimed at managers of licensed premises. The Police are perfectly entitled to bring such an application notwithstanding the fact that Mr Jonas has already been dealt with in another jurisdiction.

[7] We refer to a decision of Henry v Strange LLA 1632/96 regarding an application for cancellation of a General Manager's Certificate in which it is stated:

"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."

[8] In a decision that we gave in the case of Martin Ferguson v Alister Robert Lyon LLA PH 57/2003 it was said:

“It is our view that if managers are guilty of breaches of the drink driving provisions of the Land Transport Act they must expect their certificates to be suspended for a period. The length of the period should represent a balance between the seriousness of the offending and the maximum term of six months. In the majority of cases such a result will be seen by the Authority as a desirable step towards the promotion of the object of the Act.”

[9] In this case balancing as best we can all factors it is our decision to suspend the General Manager’s Certificate which is held by Simon David Jonas for 10 days commencing on Wednesday 20 May 2009.

DATED at WELLINGTON this 26th day of April 2009

B M Holmes
Deputy Secretary

Simon Jonas.doc(aw)