Gartner [2012] NZLLA 840 (25 July 2012)

Last Updated: 21 August 2012

[2012] NZLLA PH 840

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by DOROTHY JOAN GARTNER pursuant to s.118 of the Act for a Club Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Dr J Horn

HEARING at TIMARU on 11 July 2012

APPEARANCES

Ms D J Gartner – applicant
Mrs B A Ensor – Timaru District Licensing Agency Inspector - in opposition
Sergeant M G Lord – NZ Police – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] The applicant has made an application for a Club Manager’s Certificate. This application was opposed by both the Inspector and the Police. The grounds for the opposition by both the Inspector and the Police were the failure in the application form to disclose previous convictions, the previous convictions themselves, and the detrimental effect that the disclosure of the convictions might have on the applicant and the club where the applicant proposes to be a duty manager.

Criteria

[2] Section 121(2) of the Act states the criteria to which the Authority must have regard when considering an application for a Club Manager’s Certificate. The relevant criteria are:

(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 managing any premises in respect of which a licence was in force:

(d) Any relevant training, in particular recent training, that the applicant has undertaken and any relevant qualifications that the applicant holds:

(e) Any matters dealt with in any report made under section 119:

(f) Where the applicant intends to be the manager of a particular club the extent of the applicant’s involvement in the management and activities of the club.

[3] The Authority is satisfied that the applicant meets the criteria set out in (c) to (e) (inclusive). However, the matters set out in (a), (b) and (f) required further consideration.

Authority’s Decision and Reasons

The Convictions

[4] The applicant was convicted of three serious offences in 1992 as a result of which a sentence of imprisonment was served. Having considered the nature of the convictions and the type of club where the proposed certificate would be used, the Authority concludes that the convictions are historical and unlikely to inhibit the applicant carrying out her duties as a club manager under the Act.

Preservation of Club’s Reputation

[5] The convictions and their nature, if disclosed, could be detrimental to the character and reputation of the applicant. It was for this reason that the applicant was reluctant to disclose them. Insofar as the applicant is concerned, the convictions will always have a detrimental effect upon her character and reputation. That is inherent in any conviction. However, most reasonable persons would recognise that approximately 20 years have elapsed since the convictions and give credit for the fact that there have been no further convictions during that period.

[6] The convictions were disclosed to the president of the club who chose to undertake no further enquiries in respect of them. The applicant has done all that was necessary to inform the club of her status. It was for the club to take such steps as it deemed necessary to preserve its reputation. The protection of the club’s reputation has little to do with the object of the Act as set out in s.4.

Non-disclosure of Previous Convictions

[7] The applicant states that she failed to disclose her previous convictions because she thought that they were protected by the impact of The Criminal Records (Clean Slate) Act 2004. When preparing her application for the certificate, the applicant was given a form containing a checklist of matters to be considered. This included a statement that all criminal convictions needed to be disclosed and referred to the “Clean Slate Act” sheet attached to the checklist. The applicant acknowledged that she had read the checklist but claims that she misunderstood it. The relevant portion of the checklist reads:

“The individual must have:

• No convictions within the last seven years;
• Never been sentenced to a custodial sentence (e.g. imprisonment, corrective training, borstal); ............................................
  

[8] The applicant claims that she thought the reference to having been sentenced to a custodial sentence was governed by the seven year period referred to in the preceding line. Thus, she claims that she misread the explanatory documentation. Furthermore despite having had her misinterpretation pointed out to her by the Police prior to and during the hearing, she continues to maintain that the way the information is set out does support her interpretation. She is reluctant to acknowledge that she erred in this.

[8] The Authority considers that the explanatory statement cannot be read in the manner suggested by the applicant. It is quite clear. The seven year period relates to not having had any convictions within that period. That portion of the explanatory statement is quite discrete from the other criteria set out in it.

[9] The previous convictions were serious. The District Licensing Agency, the Inspector and the Police were entitled to know of them in order to determine their respective attitudes to the application.

[10] When relating the failure to disclose the convictions to the criteria set out in s.121(2) of the Act, the Authority considers that the non-disclosure is relevant to the applicant’s character: see for example C D Rowson NZLLA 1375/95. If an applicant for a manager’s certificate fails to disclose relevant material when making an application, then it follows that he/she might be reluctant to disclose to the authorities in the future important but detrimental matters relating to the management of the premises. The object of the Act, as set out in s.4, could be compromised.

[11] The obligation was on the applicant to satisfy the Authority as to all matters contained in s.121(2) of the Act. She has not satisfied this obligation. Accordingly, the application is refused.

[12] Pursuant to s.107(5) of the Act there is a final order prohibiting the publication of details of the convictions and their nature.

DATED at WELLINGTON this 25TH day of July 2012

B M Holmes
Secretary

Dorothy Gartner.doc(aw)