Loye v Humby [2009] NZLLA 899 (13 August 2009)

Last Updated: 25 January 2012

Decision No. PH 899/2009 – PH 900/2009

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 1787/99 issued to JENNIFER JEAN HUMBY

BETWEEN JASON PETER LOYE
(Police Officer of Avondale)

Applicant

AND JENNIFER JEAN HUMBY

Respondent

AND

IN THE MATTER of an application by JENNIFER JEAN HUMBY pursuant to s.123 of the Act for renewal of a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Ms J D Moorhead
Mr P M McHaffie

HEARING at AUCKLAND on 28 July 2009

APPEARANCES

Sergeant J P Loye – NZ Police – applicant and opposition to application for renewal of General Manager’s Certificate
Ms J J Humby – respondent and application for renewal of General Manager’s Certificate
Mr A C Phillips – Auckland District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority are two applications for determination. The first is an application by Jennifer Jean Humby pursuant to s.123 of the Act for renewal of a General Manager’s Certificate.

[2] That application is opposed by the Police on the grounds that the applicant has incurred a conviction for driving with excess breath alcohol. It is that opposition that has led to the second application by the Police for suspension of the General Manager’s Certificate.

[3] Ms Humby was originally granted her General Manager’s Certificate on 30 April 1999. On 4 March 2009 she applied to renew her manager’s certificate and declared a conviction for driving under the influence of alcohol on 27 November 2008.

[4] The application was forwarded to the Police in accordance with normal practice. It was the disclosure of this recent conviction that was confirmed during the vetting procedures and resulted in an application being made for suspension.

[5] We have heard from Sergeant J P Loye who is the Alcohol Harm Reduction Co-ordinator for the Auckland City West Policing area. He gave evidence in relation to the conviction and produced a copy of the applicant’s criminal and traffic history list. This confirms that Ms Humby was convicted in the Auckland District Court on 27 November 2008 for an offence which took place on 6 November 2008. She was driving with a level of 647 micrograms of alcohol per litre of breath, which is over the maximum permissible limit of 400 micrograms. She was fined $450, ordered to pay Court costs of $130 and disqualified from driving for six months.

[6] Sergeant Loye advised that in May 2009 the Police received a copy of a Notice of Renewal of the General Manager’s Certificate issued to Jennifer Jean Humby dated 29 April 2009. Sergeant Loye subsequently advised the Auckland District Licensing Agency that the certificate had been issued in error, as there was Police opposition to the application for renewal. We understand that the notice of renewal was subsequently recovered from Ms Humby.

[7] Ms Humby appeared and confirmed that she utilises her certificate at the “Richardson Tavern” where she has worked for some 15 years. We understand that the tavern is in Trust-controlled area.

[8] She said that this was the first time that she had been drinking and driving. She explained the circumstances leading up to this situation and while not an excuse, we are satisfied that there were matters of a personal nature that perhaps had an impact on the situation.

[9] She had been drinking at her place of work once she had finished her shift and had four or five glasses of red wine which had been bought for her by patrons. She had endeavoured to eat but in any event was stopped at a controlled checkpoint and found to be over the limit.

[10] She said that she was particularly ashamed of what had happened and we accept that she is sincere in saying this. It would seem that she has had an unblemished record in the industry since she was first issued her certificate in 1999. This is certainly the first incident that has been brought to the attention of the Authority.

[11] Sergeant Loye conceded on behalf of the Police that there was no opposition to a shortened renewal period. Submissions were also made by Mr A C Phillips, the Auckland District Licensing Agency Inspector, regarding the renewal application. He submitted that this was an isolated offence and that the General Manager’s Certificate should be renewed for a lesser period of 18 months.

[12] In the decision 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.”

[13] In this case we are satisfied in regard to the suspension application that the grounds under s.135 of the Act have been established and that it is desirable to make an enforcement order.

[14] Accordingly General Manager’s Certificate GM 1787/99, issued to Jennifer Jean Humby, will be suspended for 21 days commencing on Tuesday 4 August 2009. In regard to the renewal application, the certificate will be renewed but for the shorter period of 18 months, which means that it will expire on 30 October 2010.

DATED at WELLINGTON this 13th day of August 2009

B M Holmes
Deputy Secretary

Jennifer Humby.doc(aw)