Clearwater v Matinee [2011] NZLLA 1157 (17 October 2011)

Last Updated: 23 November 2011

[2011] NZLLA PH 1157-1158

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for suspension or cancellation of on-licence number 033/ON/288/2009 issued to SHASHIL RAMESH DAYAL in respect of premises situated at 67 Devon Street West, New Plymouth, known as “Matinee”

BETWEEN MURRAY ERIC CLEARWATER

(New Plymouth District Licensing Agency Inspector)

Applicant

AND SHASHIL RAMESH DAYAL

Respondent

AND

IN THE MATTER of an application by SHASHIL RAMESH DAYAL 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: Dr J Horn

HEARING at NEW PLYMOUTH on 13 October 2011

APPEARANCES

Mr M E Clearwater – New Plymouth District Licensing Agency Inspector – applicant and in opposition to application for General Manager's Certificate
Mr W J Wright – for respondent and applicant for General Manager's Certificate

DECISION OF THE AUTHORITY

[1] This decision relates to two applications. First there is an application for the suspension or cancellation of the on-licence issued to Shashil Ramesh Dayal in respect of the premises known as “Matinee”. Second, there is an application by Mr Dayal for a General Manager's Certificate which is opposed.

[2] The grounds for the enforcement application are that the licensed premises has been conducted in breach of ss.115(1), 128, 130 and 172A of the Act. In particular, the application alleges that on various dates in November and December 2010 the respondent purported to act as a duty manager when he did not hold a General Manager's Certificate. Further, on another date the named duty manager, Sam Heath, was not on the premises. On yet another date the named duty manager Mallory Scott did not hold a General Manager's Certificate.

[3] The application for the General Manager's Certificate is opposed on the same grounds as are set out in the enforcement application. In addition, on 30 September 2010 Mr Dayal was convicted of driving with an excess blood alcohol level and driving whilst suspended.

[4] At the hearing the factual allegations were admitted. However, it was submitted that there were extenuating circumstances relating to the enforcement application. Likewise, there were extenuating circumstances applicable in respect of the application for the General Manager's Certificate. In respect of the two convictions it was submitted that not only did they occur approximately 13 months ago but also that their only relevance was whether the person in question would meet his or her responsibilities under the legislation: re Sheard [1996] NZAR 61 and Schroeder v Police and Christchurch District Licensing Agency 10/6/02, William J HC, Christchurch AP 8/02.

[5] At the hearing evidence was adduced by Senior Constable Cheryl McGrath, Mr Clearwater and Mr Dayal. Whilst Mr Dayal attempted to gloss over the statutory breaches it is clear that these did occur and, indeed, as Mr Clearwater stated have been reoccurring since about 2006. Plainly Mr Clearwater is fed up with endeavouring to persuade Mr Dayal to comply with his statutory obligations.

[6] The Authority appreciates that since the date of the application of the enforcement application (14 December 2010) there have been no further statutory transgressions. The obvious reason for this is the pending determination of the application.

[7] In its decision dated 17 April 2008 (NZLLA PH 556/2008) the Authority made it very clear to Mr Dayal that he had a responsibility to comply with his statutory obligations. In this decision the Authority repeats and confirms the comments made in 2008. Henceforth, unless Mr Dayal complies with his statutory obligations to the letter, it is likely that he will lose his on-licence.

[8] In respect of the application for the General Manager's Certificate, the Authority has to be satisfied in terms of s.121 of the Act as to the character and reputation of the applicant and his experience (particularly recent experience). In addition any convictions are relevant.

[9] Mr Dayal’s performance as a licensee in failing to comply with his statutory obligations impinges on his character and reputation. Likewise, the two convictions are cause for concern. In this case, the two convictions on their own indicate that Mr Dayal has not been prepared to meet his responsibilities under the Land Transport Act. It follows, that he is unlikely to meet his responsibilities under the Sale of Liquor Act 1989. That proposition in enforced when one considers the statutory failures (admitted by him) as set out in the enforcement application.

[10] In respect of the enforcement application, counsel submitted that a four day suspension was an appropriate starting point. The Authority disagrees. Whilst Mr Dayal is entitled to credit for his performance since the date of the enforcement application, nevertheless, it is plain that he has been a slow learner. Any suspension imposed by the Authority needs to bring home to Mr Dayal that he has reached the end of the road. Accordingly, the on-licence issued to Mr Dayal is suspended for seven days commencing 1 November 2011.

[11] Because Mr Dayal has failed to satisfy the Authority in respect of the statutory criteria set out in s.121 of the Act, the application for the General Manager's Certificate is refused.

DATED at WELLINGTON this 18TH day of October 2011

B M Holmes
Secretary

Matinee.doc(aw)