Todd [2010] NZLLA 1270 (29 October 2010)

Last Updated: 12 November 2010

[2010] NZLLA PH 1270

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by LYNDEN KEITH TODD pursuant to s.118 of the Act for a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Mr P M McHaffie

HEARING at INVERCARGILL on 18 October 2010

APPEARANCES

Mr A S P Tobeck – for applicant
Sergeant A J Harris – NZ Police – in opposition
Mr M J Sarfaiti – Southland District Licensing Agency Inspector – to assist

DECISION OF THE AUTHORITY

[1] This decision relates to an application for a General Manager's Certificate. The application was opposed because the applicant has incurred two convictions for driving with excess alcohol. The first conviction was in 1986 and may be discarded as being relatively historical.

[2] The other conviction is dated 26 January 2010 and relates to an offence which was committed on 5 November 2009 where the level of alcohol found in the applicant’s blood was 126 milligrams of alcohol per 100 millilitres of blood.

[3] The leading case is G L Osborne NZLLA 2388/95. In Osborne the Authority indicated that if there were an isolated excess breath or blood alcohol conviction disclosing no pattern of offending a minimum of two years from the date of conviction might result in subsequent favourable consideration for a General Manager's Certificate provided suitable reports from both the Police and Inspector are received. The period of two years dates from the date of the offence and not the conviction.

[4] Since the Osborne decision the High Court has issued a decision in Quinlan v NZ Police and Whangarei District Licensing Agency High Court 13 March 2000 AP63/99 Anderson J. Quinlan is authority for the proposition that each application must be dealt with on its own merits.

[5] In support of the application it was submitted:

• [a] Both drink driving offences were committed when the applicant was not employed in the industry;
  
• [b] The 1986 conviction may be discarded as being of historical interest only. This is not a case where a pattern of offending has developed;
  
• [c] The 2009 drink driving offence was committed in unusual and unfortunate circumstances. The applicant had started a new business involving agricultural spraying. Unfortunately, the sprayer had rolled which was likely to have a detrimental effect on the new business venture. The offence was then committed. The reading was low;
  
• [d] The applicant has now returned to the industry. He has acquired a one third share in a tavern at Wallacetown near Invercargill. A further share is held by his partner who is the only holder of a General Manager's Certificate. The other one third shareholder is his partner’s father who is anxious to quit the industry. Two persons holding General Managers’ Certificates are necessary to run the licensed premises adequately in terms of s.115 of the Act. Without the applicant obtaining his General Manager's Certificate, too much stress is placed on the existing general manager;
  
• [e] This is not a case where the applicant is seeking to enter the industry as a general manager. He has previously held a General Manager's Certificate for some years without blemish. The offence occurred while he was endeavouring to start a new business and was only temporarily out of the liquor industry. If he had not let his certificate lapse then the most he would have been facing was an application for the suspension of his certificate which would probably have resulted in one month’s suspension. Because he let his certificate lapse, however, in terms of the Osborne decision he is facing a two year wait from the date of the offence to the date of the granting of this application;
  
• [f] The dicta in Quinlan is that each application must be looked at on its own individual merits and this is a meritorious case.
  

[6] The Authority agrees with the foregoing submissions. When considering the merits of the case the overriding consideration is s.4 of the Act which sets out its objects. When considering the reduction of liquor abuse, one factor to be taken into account is that it is important for the management of the new tavern that there be two general managers available. Without this application succeeding, significant difficulties are apparent. When one takes this factor into account together with the other matters mentioned in the submissions (which are adopted as reasons for this decision) then the Authority concludes that this is an unusual case justifying extraordinary treatment.

[7] Accordingly, the application is granted. Any concerns that the Police may have concerning the applicant’s suitability will no doubt be tested during the probationary period of one year.

DATED at WELLINGTON this 29TH day of October 2010

B M Holmes
Secretary

Lynden Todd.doc(aw)