Clayton, re [2009] NZLLA 555 (28 May 2009)

Last Updated: 2 October 2010

Decision No. PH 555/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by JESSE LEMUEL CLAYTON 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: Ms J D Moorhead

HEARING at TAURANGA on 21 May 2009

APPEARANCES

Mr J L Clayton – applicant
Sergeant N P McGlone – NZ Police – in opposition
Miss D M Jurgeleit – Tauranga District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Jesse Lemuel Clayton for a General Manager’s Certificate. Mr Clayton is the holder of the Licence Controller Qualification. The application was filed with the Queenstown Lakes District Licensing Agency in August 2008. At that time Mr Clayton had been employed for a period of time at the "Frankton Arms Tavern" in Frankton. He had been supported by his employer, and indeed had been appointed from time to time as a temporary manager.

[2] However, he left those premises on 1 December 2008, and subsequently moved to Tauranga. Mr Clayton has been employed at the “Coffee Club” in Tauranga since January 2009. These are very well run licensed premises where the risk of overconsumption of alcohol is minimal. However, it has been pointed out to Mr Clayton that it is necessary for us to have a confirmation that his employer requires that he be duty manager from time to time, and assume sole control of the premises.

[3] The application was opposed because of a pattern of offending that emerged approximately two years ago. The offending shows that Mr Clayton first got into trouble in March 2006. He was charged with driving with excess breath alcohol content. The level was apparently 172 micrograms of alcohol per litre of breath. Mr Clayton was 19 at the time. He was fined $800 with costs and disqualified from driving for a period of three months. The magnitude of the fine should have given Mr Clayton a wake up call.

[4] He was subsequently convicted in respect of a hubodometer offence but having heard his explanation, together with the fact that there was no penalty, this matter has no bearing on the outcome of this application.

[5] On 26 November 2007, Mr Clayton had his licence suspended because of his number of demerit points. He was later found to be driving his van. A subsequent search of the van disclosed a ‘bong’ used for smoking marijuana.

[6] It is Mr Clayton's evidence that since that time he has not used cannabis, and has made a real effort to get his life back into some form of prosocial order.

[7] The final matter occurred two days later when Mr Clayton was arrested in respect of breach of a liquor ban. He said that he had an empty bottle. In the event he decided to pay a fine rather than spend a night in Police custody.

[8] That summary describes the pattern of what could be called youthful indiscretion. Mr Clayton stated that he very much regrets what has happened and he is very keen to keep out of trouble and continue as a positive member of the community.

[9] The issue is to balance the convictions and the pattern of offending with the impression given in the witness box of a young man with a positive attitude to his life. We think that given what has happened, the grant of a certificate will be a process rather than an event and the process will require a form of monitoring. We have decided to adjourn this application for a period of nine months. We would be happy for Mr Clayton to be appointed as a temporary or acting manager in the last three months of that adjourned period, provided the provisions of ss.128 or 129 of the Act have been met. This would mean that he could take on a fuller responsibility over the Christmas period.

[10] We will call for reports in nine months’ time. If they are positive and there are no other adverse matters drawn to our attention, the application will be granted on the papers.

[11] If other incidents do arise and Mr Clayton lets himself down, then a further public hearing may be necessary or the application will be declined.

[12] The adjournment is also to enable Mr Clayton's employer to send a letter to the Agency confirming that he is regarded as a valuable employee who will be appointed from time to time as the duty manager of the premises.

DATED at WELLINGTON this 28th day of May 2009

B M Holmes
Deputy Secretary

Jesse Clayton.doc(aw)