Taranaki [2011] NZLLA 893 (17 August 2011)

Last Updated: 31 August 2011

[2011] NZLLA PH 893

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by HELEN MARIE TARANAKI pursuant to s.118 of the Act for a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Ms J D Moorhead
Mr P M McHaffie

HEARING at HAMILTON on 8 August 2011

APPEARANCES

Ms H M Taranaki – applicant
Sergeant J R Dalziell-Kernohan – NZ Police – in opposition
Mr T P Van Der Heijden – Hamilton District Licensing Agency Inspector – to assist

DECISION OF THE AUTHORITY

[1] Before the Authority is an application for a General Manager's Certificate by Helen Marie Taranaki. The application was received by the Hamilton District Licensing Agency on 4 August 2010. It was supported with a copy of the required Licence Controller Qualification and a reference from her employer at the “Gables Tavern”.

[2] The Police opposed the application on the basis that the applicant had incurred two recent convictions and had also failed to disclose those convictions. The matter was accordingly set down to be determined at a public hearing.

[3] Sergeant J R Dalziell-Kernohan, for the Police, pointed out that although the application form requires an applicant to disclose whether they have any convictions asking “has the applicant been convicted of any offence” Ms Taranaki had circled ‘no’. This was not however, the case. Police vetting procedures disclosed that Ms Taranaki has three convictions, two of which are for driving with an excess breath alcohol level received in 1996 and 2009, as well as a conviction for driving whilst disqualified in January 2010. These offences were admitted by Ms Taranaki at the hearing, although she was unable to explain in a satisfactory manner why she had failed to disclose them.

[4] While it could be argued that the 1996 offence is historical, the other two are recent and incurred not long before the application was made in August 2010. Sergeant Dalziell-Kernohan quite correctly referred us to the guideline decision of G L Osborne NZLLA 2388/95 in terms of how the Authority should deal with convictions. That decision states:

“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.”

[5] The decision then goes on to say that a minimum two year stand down period would be expected for an isolated conviction. In this case however, we are not dealing with an isolated conviction.

[6] Ms Taranaki gave evidence and noted that the conviction for driving with excess breath alcohol on 26 September 2009 was of a low level. This conviction was however, compounded when she drove while disqualified on 20 January 2010.

[7] We note that Ms Taranaki has previously held a General Manager's Certificate although she failed to renew it in time. She was therefore required to make a new application.

[8] We also heard from her employer Robyn Marie Shaw who supported her application.

[9] The matters that we must take into account in determining an application for a General Manager's Certificate are set out in s.121 of the Act. They are as follows:

(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 controlling 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.

[10] We are concerned here with both convictions and the character and reputation of the applicant. In regard to the character and reputation of the applicant the Authority said in the decision of Deejay Enterprises Limited NZLLA 531 – 532/97 :

“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.”

[11] We were not satisfied with Ms Taranaki’s explanation for the non disclosure of the convictions, which in our view reflects adversely on her character and reputation. As we have said we would also expect a stand down period where convictions have been incurred. The most recent conviction for driving while disqualified occurred less than two years ago, as did the conviction for driving with an excess breath alcohol level.

[12] We are not persuaded that she is currently in a position where a certificate should be granted. The application is declined.

DATED at WELLINGTON this 17TH day of August 2011

B M Holmes
Secretary

Helen Taranaki.doc(aw)