Madeley, re [2009] NZLLA 774 (21 July 2009)

Last Updated: 13 February 2010

Decision No. PH 774/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by IAN MADELEY pursuant to s.118 of the Act for a Club Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Ms J D Moorhead
Mr P M McHaffie

HEARING at AUCKLAND on 24 June 2009

APPEARANCES

Mr I Madeley – applicant
Constable D J Fry – NZ Police – in opposition
Ms A Mincher – Auckland District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

[1] This is an application for a Club Manager’s Certificate by Ian Madeley pursuant to s.118 of the Act. The application was lodged with the Auckland District Licensing Agency on 5 January 2009.

[2] The application was opposed by the Police due to the applicant having previous convictions for alcohol related offences. The matter was accordingly set down to be determined by the Authority at a public hearing.

[3] Constable D J Fry is stationed at the Eastern Area Headquarters, Greenlane, in the Liquor Licensing Section. He gave evidence in regard to the applicant’s previous convictions and produced a copy of the applicant’s criminal and traffic history. While the most recent of the offences occurred in June 2006, the Police are concerned that Mr Madeley exhibits an ongoing pattern of liquor abuse. It was also noted that on the application form only one of 14 convictions had been disclosed. It was pointed out that eight of these offences were alcohol related.

[4] There are several historical offences dating from 1968. The most recent matter of concern is a conviction entered on 28 July 2006 for driving with excess breath alcohol and is the fourth conviction for such an offence. The applicant was convicted in the Auckland District Court for an offence which took place on 10 June 2006. On that occasion the applicant was convicted of driving with excess breath alcohol with a level of 816 micrograms of alcohol per litre of breath. Mr Madeley was ordered to carry out 100 hours of community work and disqualified from driving for one year and one month.

[5] The previous breath/blood alcohol offences took place in 1982, 1990 and 1991. There was however also a refusal to supply a blood specimen in 1997 and historical offences of being found drunk in a public place in 1978 and 1979.

[6] Mr Madeley is a maintenance contractor. He appeared and explained that he wished to gain the certificate for use at the “Newmarket Workingmen’s Club” where he is a member and has served on the committee for five years. He has worked there as a barperson helping out under the duty manager for a couple of years. It was the club that paid for the Licence Controller Qualification and for the current application. He said that the club had not initially been aware of his history but was now. There were members of the club present at the hearing to support him, including the President. We note that the club President, Mrs T A H Rameka, had written in support of the application describing Mr Madeley as “exemplary in the performance of his duties”. In relation to the failure to disclose his convictions he said that he was under the impression that he only needed to disclose the last one which took place three years ago.

[7] Mr Madeley was also candid about his history of alcohol use. He admitted that he had a drinking problem in the past but said that he did not any more. He said that he had to change his habits for health reasons. He still consumes alcohol but now gets a taxi to the club and back. He works at the club on a Wednesday night from 4.00 pm to 8.30 pm, or 10.00 pm depending on how many people are there. Mr Madeley was well able to make the connection between the object of the Sale of Liquor Act and his own situation.

[8] His past record shows a period of almost 10 years, between 1997 and 2006 which was conviction free. He had changed his habits but then fell away. He said there had been a few other problems but that they don’t exist anymore.

[9] We also heard from Mr Michael Glenn. He is a member of the club and a past President. He said that he spoke on behalf of the club. He is also the holder of a Club Manager’s Certificate. He supported Mr Madeley in his application and said that he had known him personally for in excess of 10 years. His view was that Mr Madeley was of good character and well respected in the community and club. He did not think the convictions should be held against him forever and that he should be given a chance. He pointed out that the role at the club which Mr Madeley carried out was a voluntary one.

[10] Ms Angela Mincher is an Auckland District Licensing Agency Inspector. She made submissions in regard to the application. She confirmed that Mr Madeley had demonstrated a satisfactory knowledge of the Act at an interview but expressed concern that he had not disclosed all of his convictions. She submitted that Mr Madeley had demonstrated a pattern of offending that warranted a stand down period.

[11] The criteria to which we must have regard in determining the application are set out in s.121 of the Act and include the following:

(a) The character and reputation of the applicant:

(b) Any convictions recorded against the applicant:

(c) Any experience, in particular recent experience, that the applicant has had in managing any premises or conveyance in respect of which a licence was in force:

(d) Any relevant training, in particular recent training, that the applicant has undertaken and evidence the applicant holds the prescribed qualification required under section 117A:

(e) Any matters dealt with in any report made under section 119.

[12] Mr Madeley is the holder of the Licence Controller Qualification. It is the history of alcohol abuse that is the main concern. We are of the view that the pattern of alcohol related convictions reflects on his suitability to hold the certificate. We are prepared to give Mr Madeley the benefit of the doubt when it comes to the failure to disclose all of the convictions.

[13] In the decision known as Deejay Enterprises Limited LLA 531–532/97 it was stated:

“The guiding hand or hands-on operator of any company or the potential holder of a General Manager’s Certificate now receive greater scrutiny from both the Police and other reporting agencies. Character and reputation are closely examined. The law and human desires of patrons frequently tug in different directions. The Police cannot be everywhere. Little but a licensee’s or manager’s character and suitability may stand between upholding the law and turning a blind eye. Self imposed standards in accordance with the law must be set by licensees and holders of General Manager’s Certificates who control and manage licensed premises.”

[14] In the guideline decision of G L Osborne LLA 2388/95 the Authority said:

“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.”

[15] The Authority went on to say:

“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.”

[16] This is not a case where there is an isolated conviction. There is a pattern of offending, although it is noted that there was an offence-free period of almost 10 years when Mr Madeley appeared to have changed his behaviour.

[17] In this case the most recent conviction for driving with excess breath alcohol is now some three years ago. However, we are not convinced that sufficient time has passed in order for Mr Madeley to be granted a Club Manager’s Certificate.

[18] Mr Madeley is fortunate to have the support of the club. Partly because of this support as advised at the hearing, we propose rather than declining the application, to adjourn the matter for a period of 12 months. The matter will then be set down for a further hearing before the Authority. At that time we will call for further reports from the agencies. We would also expect to receive a report from an alcohol counsellor.

[19] The application will be adjourned on those terms.

DATED at WELLINGTON this 21st day of July 2009

B M Holmes
Deputy Secretary

Ian Madeley(jdm)