De Haan, re [2009] NZLLA 78 (23 January 2009)

Last Updated: 26 January 2010

Decision No. PH 78/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by ROBERT DOUGLAS AREND DE HAAN 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: Mr P M McHaffie

HEARING at HAMILTON on 18 December 2008

APPEARANCES

Mr R D A de Haan – applicant
Sergeant J R Dalziell- Kernohan – NZ Police – in opposition
Mr T P Van Der Heijden – Hamilton District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Robert Douglas Arend de Haan for a General Manager's Certificate. The application was filed with the Hamilton District Licensing Agency in late July 2008. The application was supported by the Licence Controller Qualification and a reference from the licensed premises where Mr de Haan had been employed for the previous two years.

[2] Mr de Haan is a student completing a degree in business management and has worked on a full and part time basis at the same licensed premises for two and a half years. The reference that was filed with the application indicated that he had taken on a variety of roles at a tavern premises in Hamilton.

[3] The application drew an adverse report based on a relatively serious driving incident. There are no facts before us but the incident resulted in two convictions.

[4] Sometimes at, or after, midnight on 21 December 2007 Mr de Haan was driving a motor vehicle. He had been working that night. He had had a couple of drinks. He saw ahead of him a checkpoint operation and decided that because he had had a drink or two that it would be preferable not to be tested. He decided to turn left before arriving at the checkpoint but was pursued. He failed to stop and obviously drove at some considerable speed and there may have been other circumstances. In any event, he was charged with reckless driving and failing to stop when being followed by red and blue flashing lights.

[5] He pleaded guilty almost immediately and was convicted and fined a considerable amount and was disqualified from holding or obtaining a driver's licence for seven months.

[6] Mr de Haan has spoken of the impact of this first offence on him and in particular on his ability to achieve a greater level of responsibility in the workplace. This is quite apart from the other incident, such as having to ride a bike and the impact generally of the fine and the indignity of a Court appearance.

[7] The offending is to some extent ameliorated by the fact that both the manager and the assistant manager have seen fit to appear before us in full support of the application. Indeed the business has helped to sponsor the application. Both the assistant manager and the manager consider that Mr de Haan has special talents and potential. He is described as a dedicated hard worker who has been held back by these matters although they both accepted that his conduct had been such that it clearly reflects on his suitability to be the holder of a General Manager's Certificate.

[8] To some extent we are led by the guideline decision of G L Osborne LLA 2388/95. In that decision 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."

[9] On the other hand 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.”

[10] It should be pointed out that when Mr de Haan was stopped he was given a breath test that was found to be below the allowable limit.

[11] The standard that we expect from holders of certificates is best described in the decision of Deejay Enterprises Limited LLA 531–532/97 in which it was said:

"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."

[12] On the one hand, taking into account the general criteria we do not believe it is appropriate to grant the application at this time. On the other hand taking into account the support that has been shown we think it would be unreasonable to refuse the application. In our view the grant of a certificate will be a process rather than an event.

[13] Balancing all factors as best we can, the application is now adjourned for nine months. If there are no other adverse incidents in that period of time then Mr de Haan will clearly have shown that he has moved past that incident and is able to lead a prosocial lifestyle. If there are no adverse matters then we propose to grant the application on the papers in nine months time.

[14] In these particular circumstances we see no reason why Mr de Haan cannot be appointed as a temporary or acting manager provided the provisions of ss.128 and/or 129 of the Act have been observed. We would expect such an appointment to take place within the last six months of the adjourned period. In other words three months from today.

[15] If there are further adverse matters then either the application will be refused or a further public hearing will be scheduled.

DATED at WELLINGTON this 23rd day of January 2009

B M Holmes
Deputy Secretary

Robert de Haan.doc(aw)