Stowers v McGlone [2009] NZLLA 554 (28 May 2009)

Last Updated: 2 October 2010

Decision No. PH 554/2009

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 or cancellation of General Manager’s Certificate number 021/GM/9618/2007 issued to JESSE DIRK STOWERS

BETWEEN NIGEL PETER McGLONE

(Police Officer of Tauranga)

Applicant

AND JESSE DIRK STOWERS

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge D Holderness
Member: Ms J D Moorhead

HEARING at TAURANGA on 21 May 2009

APPEARANCES

Sergeant N P McGlone – NZ Police – applicant
No appearance by or on behalf of respondent

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application to suspend or cancel General Manager’s Certificate number 021/GM/9618/2007, issued to Jesse Dirk Stowers. The application is made pursuant to s.135 of the Act and was lodged on 13 March 2009.

[2] The respondent's General Manager’s Certificate was renewed in August 2008. It falls due for renewal again in August 2011.

[3] The application is made on the grounds that the conduct of the respondent is such as to show that he is not a suitable person to hold the certificate. The application is based essentially on two incidents involving the respondent which have resulted in convictions being entered in November 2008 and December 2008 respectively. The application was also advanced on the basis that the respondent is currently no longer employed in the industry.

[4] The brief facts in relation to the first incident, which occurred in the central business district of Tauranga at about 1.10 am on 2 November 2008, are as follows.

[5] The respondent was with a group of friends in the city. The area was crowded and members of the public were said to be in various states of intoxication. The Police were in the area at the time. The respondent became aggressive and began yelling abuse at Police and he adopted what is described as a fighting stance in the middle of the street. There was encouragement from the nearby crowd and in order to prevent disorder escalating the Police moved quickly to arrest the respondent and remove him from the area. As a result, he was charged with disorderly behaviour. In explanation the respondent said at the time that he had acted stupidly and that he had had too much to drink.

[6] On 5 November 2008 the respondent appeared before the District Court in Tauranga and pleaded guilty to the offence and was fined $100.

[7] The second conviction was entered on 3 December 2008. It arose from a breach of the liquor ban which has been in force in the Tauranga central business district since 2004. It was initially a 24 hour, seven day a week ban but from 1 December 2008 the hours of the ban were altered. This incident occurred just a couple of days before that bylaw change. At about 11.20 pm on 28 November, the respondent was found to be walking up Devonport Road with some associates and he was seen to be carrying an open bottle of beer.

[8] The respondent denied knowledge that there was a liquor ban in force and he maintained that he had just moved to the area. The Police formed the view that he was not entirely truthful. In the event Mr Stowers pleaded guilty to a charge of being in breach of a liquor ban and on 3 December 2008 he was convicted of that offence, fined $250 and ordered to pay the usual Court costs.

[9] On 10 February 2009, the Police sent a letter to the respondent. The Police wished to discuss with him the effect of the convictions which had reflected upon his General Manager’s Certificate. In the letter sent by Sergeant McGlone, the respondent was given 10 days in which to respond. No reply was received. The Police were advised by a firm we believe to be the employer of the respondent that he was no longer working there and was now employed as a truck driver.

[10] Accordingly, the Sergeant sent a second letter to the respondent asking him to make contact. By 10 March no contact had been received and accordingly the Police have at no stage been able to discuss with the respondent his certificate and the ramifications of the convictions. The Police have reached the view that the respondent is not a suitable person to hold a General Manager’s Certificate, and considered that the respondent had compounded the situation in relation to the first incident as a result of his attitude and the public display of aggression that was involved in the offending.

[11] Both of the convictions relate to the alcohol. In relation to the first incident there is an element of alcohol abuse and in relation to the second incident there was plainly a breach of a ban which was aimed at reducing liquor abuse in the central business district.

[12] It is apparent that the respondent is no longer employed in the industry. That is the information that has become available to Sergeant McGlone and of course the respondent has not appeared at the hearing today.

[13] In all the circumstances we are satisfied that the grounds set out in s.135(3)(b) of the Act have been made out. The application is therefore granted. The Authority has reached the view that cancellation of the certificate is appropriate and accordingly, General Manager’s Certificate number 021/GM/9618/2007, issued to Jesse Dirk Stowers, is cancelled.

DATED at WELLINGTON this 28th day of May 2009

B M Holmes
Deputy Secretary

Jesse Stowers.doc(aw)