Patton v Gilbertson [2012] NZLLA 286 (19 March 2012)

Last Updated: 29 March 2012

[2012] NZLLA PH 286

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 or cancellation of General Manager's Certificate GM/140/92 issued to RUSSELL JOHN GILBERTSON

BETWEEN IAIN PATTON

(Police Officer of Christchurch)

Applicant

AND RUSSELL JOHN GILBERTSON

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Ms J D Moorhead
Mr P M McHaffie

HEARING at CHRISTCHURCH on 13 March 2012

APPEARANCES

Sergeant A J Lawn – NZ Police – applicant
Mr R J Gilbertson – respondent
Miss F A Proudfoot – Christchurch District Licensing Agency Inspector – to assist

DECISION OF THE AUTHORITY

[1] Before the Authority is an application pursuant to s.135 of the Act by Constable Iain Patton of the Christchurch Police for the suspension or cancellation of the General Manager's Certificate issued to Russell John Gilbertson.

[2] The ground for the application is that the conduct of the manager is such as to show that he is not a suitable person to hold the certificate. In particular it was alleged that Mr Gilbertson has incurred a conviction for driving with excess blood alcohol.

[3] The facts are admitted by Mr Gilbertson and the criminal and traffic history list was admitted by consent. The evidence is that on 13 January 2011 Mr Gilbertson was stopped at a compulsory breath test checkpoint in Lyttelton. Both the breath screening test and the evidential breath test were positive. A blood sample was given and subsequent analysis showed a blood alcohol concentration of 130 milligrams of alcohol per 100 millilitres of blood, the legal limit being 80 milligrams of alcohol per 100 millilitres of blood.

[4] Mr Gilbertson has been in the industry for many years, the certificate first being issued in 1992. Mr Gilbertson informed the Authority that he had sold his wine shop due to earthquake stress but plans to buy another wine shop. He therefore wished to retain his certificate.

[5] In the decision of Martin Ferguson v Alister Robert Lyon NZLLA 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.”

[6] We are satisfied that the grounds of the application have been made out and that it is desirable to make an order for suspension.

Certificate number GM/140/92 issued to Russell John Gilbertson is suspended for four weeks commencing on Tuesday 13 March 2012.

DATED at WELLINGTON this 19TH day of March 2012

B M Holmes
Secretary

Russell Gilbertson.doc(aw)