Are you a fit and proper person?
Alcohol licensing lawyer Pervinder Kaur looks at suitability for holding an alcohol licence…
As a lawyer specialising in alcohol licensing, I often get asked to provide expert evidence to support an application for discharge without conviction. These requests typically relate to situations where a duty manager and/or a licensee has been charged with driving under the influence of alcohol. The individuals involved may seek to clear their record as a conviction could significantly impact their employment or business.
According to a recent decision by the Alcohol Regulatory and Licensing Authority (Authority), being discharged without conviction (under section 106 of the Sentencing Act 2002) does not necessarily mean that the behaviour in question didn't happen. While a discharge without conviction is considered an acquittal for criminal law purposes, the Authority can still review the evidence to decide if enforcement proceedings are needed under the Sale and Supply of Alcohol Act 2012 (Act).
“The moral of the story here is that even if you’re successful in obtaining a discharge without conviction in the District Court, the Authority may still consider relevant conduct when determining your suitability for a duty manager’s certificate.”
In the case of Craddock v Kumar [2023] NZARLA 66, Kumar was charged with driving with excess breath alcohol (518/1000) and was ultimately acquitted in the District Court. However, despite the acquittal, the Police sought to suspend Kumar’s duty manager’s certificate due to his conduct of drink driving. The matter was brought before the Authority, which suspended Kumar’s manager’s certificate for 28 days based on the circumstances.
The moral of the story here is that even if you're successful in obtaining a discharge without conviction in the District Court, the Authority may still consider relevant conduct when determining your suitability for a duty manager's certificate.
In relation to licensees’ conduct, their employment practices have been under scrutiny lately. These especially have become a first step of assessing a licensee’s suitability since decisions in the Two Brothers and Nekita cases. Licensing inspectors, the police and District Licensing Committees have started asking questions about things like rest and meal breaks, staff rosters, timesheets, and staff wages. In a certain case, they have even asked the licensee to prove that staff are taking rest and meal breaks.
The Authority’s recent decision regarding Big Daddys Ltd & Others [2023] NZARLA 108 – 122 is relevant where the Authority has helpfully clarified the legal position. In Big Daddys Ltd, NZ Police and Christchurch City Council Alcohol Licensing Inspector argued that the law is now well settled, based on the two decisions (Two Brothers and Nekita), that employment practices are part of assessing the suitability.
But the Authority rejected this proposition and held that if the conduct in question is acknowledged (as was the case in Two Brothers) or determined by the proper Authority (as was the case in Nekita), the Authority (ARLA) can then consider that conduct in the context of suitability. But, if there is a factual debate about whether there was a breach of some other rules of conduct, then the Authority (or even the District Licensing Committees in my view) may not be the appropriate forum to make such determinations.
In conclusion, both decisions (Kumar and Big Daddys) confirm that the conduct is directly related to an individual’s or organisation’s ability to hold a certificate and/or an alcohol licence. However, for such a conduct to be considered as part of the suitability assessment, it should either be acknowledged by the applicant or determined by the proper Authority before it is considered in the context of suitability to hold an alcohol licence.
Pervinder Kaur is an Associate at Corcoran French Lawyers, specialising in alcohol licensing.
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