Printed decisions PDF 81 KB - Meetings, agendas, and minutes

Printed decisions PDF 81 KB - Meetings, agendas, and minutes

DECISION SHEET
LONDON BOROUGH OF HOUNSLOW
Licensing Panel - Tuesday, 16 October 2012
Contact: Bill Lee on 020 8583 2068 or email at [email protected]
ITEM
SUBJECT
DECISION
1.
Appointment of Chair
Cllr Shantanu Rajawat was appointed Chair.
2.
Marmaris Restaurant & Bar,
Unit GC-01 Ferry Quays
Ferry Lane Brentford
Please see the report of the Licensing Officer (agenda item 2)
This application had originally been scheduled to be heard on 11 September 2012. The hearing was
adjourned to allow the application to be amended.
The applicant, Mr Ahmet Nas, attended the hearing accompanied by Mr Keith Springer, the proposed
Designated Premises Supervisor (DPS). A number of other persons who had made representations
against the application attended and nominated Messrs Paul Garnham, Ramsay Bayatti and Nic Doczi, all
of the Ferry Quays Estate Management Company as spokepersons on their behalf.
The Licensing Officer, Michael Fish, presented the report and advised that following the submission of a
revised application which included information regarding promotion of the licensing objectives the
Licensing team had withdrawn their representation.
The applicant agreed that the Licensing Officer’s report was correct.
Mr Nas advised that he had purchased the premises in the belief that there was a valid Premises Licence.
When he discovered that was not the case he had made the application; he only wanted to run the
establishment as a restaurant, not a bar or nightclub. He had applied for an off-sales licence to allow the
sale of alcohol to diners at tables outside the restaurant and had no intention of operating as an offlicence. Simon Jones, Legal Adviser to the Panel, stated that an off-sales licence was not needed to
supply alcohol to an outside seating area but the area would need to be licensed. Mr Springer advised
that the restaurant intended to offer a takeaway service that included delivery of alcohol. Cllr John Todd
pointed out that the premises was called “Marmaris Restaurant and Bar” and queried Mr Nas’ assertion
that he did not intend to run it as a bar. Mr Nas conceded that his statement had been misleading and
apologised, explaining that he did not want loud music and late opening as the previous owners had done
but did wish to run as a bar for locals as well as a restaurant.
Mr Springer advised that he had been involved with the premises for three months and was to be
manager when it reopened; it had been closed due to the lack of a Premises Licence since the original
hearing on 11 September. Mr Nas admitted supplying alcohol until early June 2012 without a valid
licence. Questioned about the noise disturbance reported in May Mr Nas said that the incident had
revolved around a wedding celebration where over fifty people had caused trouble and police had to be
called when the situation got out of control. He admitted to supplying the guests with alcohol until 11 pm,
when they had gone to the car park and consumed their own. Cllr Todd questioned Mr Nas about the
terms of the lease which insisted that he operate inside the premises and restrain noise; he responded
that he had believed the outside seating area to be technically part of the restaurant. Asked if he was
capable of controlling a licensed premised in the light of the incident in May Mr Nas advised that he had
run a restaurant in Bristol for four years and had never had trouble; the incident in May was a one-off.
Mr Nas stated that he had bought the premises believing them to be licensed and had not known that the
existing licence had become void in 2008 following the proprietor’s bankruptcy. He had not discovered his
mistake until early June, when he had immediately applied for a licence. Both he and his then manager
(the previous owner) held Personal Licences and the manager would have been the DPS if the Premises
Licence had been valid, as he believed. He confirmed that the premises had CCTV coverage.
Mr Springer was asked about his status as a Personal Licence Holder and he advised that he had held
four licences in four boroughs prior to the introduction of Personal Licences. He had passed the
necessary exams in 2009 but had never applied for the licence as he had sold his own club in 2007; his
CRB was also out of date but he planned to apply for a new one.
Mr Ramsay Bayatti advised that the original application had given an incorrect address and not all
residents within 50 metres had been informed but others 200 metres away had been. He asked if legal
advice on this matter had been obtained and also asked why no new representations had been sought
when a revised application had been accepted. Simon Jones stated that there had been some confusion
over the address but that the practice of informing residents within a 50 metre radius was Council practice
and not a legal obligation. There had been 9 representations received from within the 50 metre radius and
15 from outside; all were broadly similar and whilst the Panel recognised that some people may not have
made representations that might have done had they been directly notified there were others who spoke
for them. As the revised application was a reduction of the original and contained no new matters the
original objections were still pertinent. The Chair stated that the Panel were satisfied with the advice
received.
Mr Nic Doczi stated that the premises was forbidden to operate as it did by the terms of its lease. He
presented photographs of the area which were shown to the Panel and applicants. Mr Jones advised that
it was not the Panel’s responsibility to enforce the terms of the lease; the property management company
had that legal power. Mr Doczi described the matter as relevant to the prevention of public nuisance
licensing objective, explaining that the restaurant was directly below 400 separate flat, many with
balconies. Lack of footfall had led to the neighbouring restaurant pushing the boundaries of its licence and
lease by holding parties to increase trade and residents were concerned that the proposed closing time of
1 am was too late for a residential area. He stated that the Ferry Quays Estate Management Company
represented all those 400 flats, more than 800 people. Mr Doczi said that he accepted Mr Nas’ version of
the incident in May but residents were deeply concerned that the premises could attract anti-social
behaviour
Simon Jones asked if the plan submitted with the application included any outside area as part of the
premises. Michael Fish advised that outside tables and chairs were displayed but that as no boundaries
were shown he would accept the building’s footprint as its limit; Mr Jones gave his opinion that a separate
licence would be required for the external seating area. Mr Springer stated that the outside area would
only be used at lunchtimes. Mr Nas said that it would indicate that the premises were a restaurant,
necessary because of the lack of passing trade. Mr Jones pointed out that the application did not include
an application to use the outside table and chairs and should have done; it would also be necessary to
obtain permission from the landowner.
Paul Garnham said that he had similar objections and asked for a closing time of 11 pm, 11.30 at
weekends which he had believed had been agreed upon by the applicant at the 11 September hearing.
He advised that the incident in May had been the worst since the premises had reopened in January but
not the only one; there had been another during a weeknight that had subsided after about an hour.
A resident asked if the premises traded as a limited company and was informed by Mr Nas that they did.
He pointed out that the application was for Mr Nas as sole trader and was told that the company had been
formed in the last month. Mr Jones advised that as the application had been made by Ahmet Nas so any
licence granted would be in his name only, not for a limited company. The resident asked Keith Springer if
he held a Personal Licence and Mr Springer advised that he was in the process of applying for one.
Asked if he ran any other companies Mr Springer replied that he did not and that he was also a local
resident, owning a flat in Ferry Quays. Cllr Todd enquired as to why the company had been formed. Mr
Nas advised that he had struggled financially after closing the restaurant and so had formed the company
with the view of acquiring business partners; the other parties had pulled out because of the lack of a
Premises Licence leaving only him. He was still the owner of the premises.
Summarising, Mr Nas stated that he had five families working with him all of whom were suffering while
the restaurant was closed for lack of a licence. He understood neighbours’ concerns and wanted to work
with them; he advised that all were welcome to approach him if there were any problems and asked that
he be allowed to trade as an ordinary licensed restaurant. Mr Garnham said that he had had ample
opportunity to engage with neighbours, especially after the last hearing, but had not done so.
Having fully considered the written and oral representations from the applicant, the written and oral
representations from objectors and the representation from the Council’s Pollution Control Team and
questioned the applicant and the objectors, the Panel discussed the matter and decided to grant the
application in part. In addition to the promotion of the four licensing objectives, in making their decision
the Panel also took into account the Secretary of State’s guidance as amended under Section 182 of the
Licensing Act 2003, the Council’s statement of licensing policy and the Human Rights Act 2000. The
Panel noted that the local residents’ objections were centred on fear of public nuisance and it was noted
that the applicant had admitted the allegations regarding noise and disturbance outside the premises in
May 2012 and that he had also sold alcohol without a licence until June 2012. The Panel were also
satisfied, on the balance of probabilities, that there had been other incidents of noise and disturbance. To
satisfy the prevention of public nuisance licensing objective the Panel therefore decide to grant the
application for a Premises Licence for the sale of alcohol and a Late Night Refreshments Licence for the
hours shown below, reduced from those applied for. Closing time shall be thirty minutes after the
termination of licensed hours; 11.30 pm Sunday to Thursday and midnight Friday and Saturday.
Simon Jones advised that the premises could not sell alcohol even though a Premises Licence had been
granted until Keith Springer obtained a Personal Licence as he had been nominated as DPS on the
application.
Resolved:
That a Premises Licence be granted for the supply of alcohol subject to the standard mandatory
conditions during the following hours:
Monday to Thursday: 12:00 to 23:00
Friday: 12:00 to 23:30
Saturday 11:00 to 23:30
Sunday: 11:00 to 23:00
With the following additional conditions:
1. The premises shall adopt a Challenge 21/25 policy whereby all persons who appear to be under 21/25
years old to provide proof that they are over 18 years of age. The proof shall be in an approved format
such as a PASS accredited proof of age scheme, a valid passport, a photocard driving licence or a UK
military identification card.
2. The staff employed shall undergo staff training with regard to the responsible retailing of alcohol.
Training shall be refreshed as appropriate. Training records shall be maintained at the premises and
provided on request to the police, Trading Standards officers or any other authorised officer.
3. No supply of alcohol may be made at a time when the Designated Premises Supervisor does not hold
a Personal Licence or the Personal Licence has been suspended, as per paragraph 10.44 of the
amended guidance by the Secretary of State.
A Late Night Refreshments Licence shall be granted for the following hours, subject to the standard
mandatory conditions:
Friday: 23:00 to 23:30
Saturday 23:00 to 23:30 with the additional condition that:
Late night refreshments shall not be supplied for consumption off the premises.
3.
G & G Liquor Store 362
Staines Road, Hounslow.
Please see the report of the Licensing Officer (agenda item 3).
PC Simon Lawrence, Hounslow Police Licensing Officer, attended the hearing on behalf of the
Metropolitan Police, the applicant.
Mr Gurdial Singh Sandhu, Premises Licence Holder (PLH) attended accompanied by his representative,
Mr Yogindar Bahal. Mr Mandeep Pal Singh Gill, the Designated Premises Supervisor (DPS) and Mr
Jaswinder Grewal, who was in the process of purchasing the shop also attended but took no part in the
proceedings. Mr Bahal advised that a transfer of the licence was underway as the shop was being sold to
Mr Grewal and this fact impinged on the review.
Licensing Officer Michael Fish presented the report. The report was agreed to be correct.
PC Lawrence stated that the visit to G & G was part of an ongoing investigation into the supply of
counterfeit and duty evaded alcohol being conducted by the Metropolitan Police. PC Lawrence had
visited the shop on 15 May 2012 accompanied by two experts from the drinks industry (one, an expert in
the identification of various brands of counterfeit wines and spirits, employed in Brand Security by Pernod
Ricard, and one from the International Federation of Spirits Producers (IFSP) who was an expert in the
identification of counterfeit and duty evaded spirits). They had found 96 bottles of wine that the experts
had confirmed as counterfeit and 16 bottles of spirits that had not been definitely identified as fake but
were not carrying correct UK market labels, meaning that they were not duty paid. PC Lawrence advised
that a full test on the spirits would only have been carried out if the police had chosen to follow up the
case with criminal prosecutions; as they had sought a licence review instead those tests had been
unnecessary.
A member of staff (J) claimed to have bought the wine and spirits from a legitimate wholesaler but was
unable to show the receipts and was arrested. He testified against Mr Sandhu who was then also
arrested; Mr Sandhu blamed J for the purchase. J was an alleged illegal immigrant, in the UK on a
student visa but not enrolled at any college. He was bailed and immediately absconded, his whereabouts
were currently unknown. Other issues were that a cashier, (P) claimed to only work at the shop for one
hour a week but appeared to have been working there full time whilst claiming benefits and the police had
also been informed that Mr Gill was no longer connected with the business and therefore the premises
had been trading without a DPS.
PC Lawrence stated that two men had arrived at the shop during the first police visit, Mr J Grewal and Mr
R Grewal, who had claimed to be in the process of buying the premises. They had denied any knowledge
of illegal alcohol purchases and the review application asking for the licence to be revoked had been
lodged when the police had failed to obtain the required information from anyone involved in the case.
Given their association with Mr Sandhu PC Lawrence questioned the suitability of either Mr Grewal to
hold a Premises Licence for the shop. Asked why the police had not pursued the option of criminal
proceedings PC Lawrence advised that as J, the only person to have admitted their involvement, had
absconded there had not been a realistic likelihood of obtaining any convictions and so the review had
been lodged. The Chair asked why the police application had named the former licensee as being listed
as PLH. Mr Bahal confirmed that the man named had been PLH before Mr Sandhu. PC Lawrence stated
that the Premises Licence on display at the time of the police visit had carried that name; Michael Fish
advised that the display of an incorrect licence was an offence under the Licensing Act 2003.
PC Lawrence was asked the retail value of the seized alcohol and he told the Panel that the total had not
been calculated; however he estimated it to be at least £500 and possibly up to £1,000. He confirmed that
further visits had been carried out and no more fake or duty free alcohol had been discovered, although P
had been found to be the only member of staff on the premises on several occasions. The Chair asked
about the identification of the unlawful alcohol and PC Lawrence advised that the industry experts that
accompanied him had confirmed that all the wine seized was counterfeit but the individual from the IFSP
only gave information to the brand owners and did not make statements himself. He had confirmed that
the spirit bottles were not types sold in the UK and so were either counterfeit or duty evaded. Statements
from the brand owners were used in criminal prosecutions but were not available to the review. Simon
Jones, Legal Adviser to the Panel, gave his opinion that the Council’s Trading Standards Team would
have prosecuted if they had been involved and PC Lawrence advised that Trading Standards had been
invited to take part in the operation but had declined.
Mr Bahal asked why the police were asking for the licence to be revoked for a first offence and PC
Lawrence advised that the decision was due to the scale of the offence. The volume of alcohol seized had
been high and cooperation low; the investigation had stalled as a result of the non-cooperation and so the
police had applied for the review. Mr Bahal said that there was a known nationwide problem with
counterfeit bottles of Jacob’s Creek and asked if the discovery at G & G had been excessive in
comparison to other finds of similar bottles. PC Lawrence said that it was a medium to large find and
Simon Jones advised that if such an offence was prosecuted under the Trade Marks Act 1994 it could
result in custodial sentences of up to ten years.
Mr Bahal stated that Mr Gill was the current DPS and that Mr Grewal was in the process of purchasing
the shop and was the same Mr Grewal mentioned by PC Lawrence as arriving at the shop during the
police visit. Mr Bahal described Mr Sandhu as a “hands off” manager who had left J in charge of the shop.
J had bought the alcohol from a source that he should not have bought from, and whilst he had been
foolish Mr Sandhu had not committed the offence and had been unaware of it; he was nonetheless wiling
to take the consequences. Mr Grewal however had been completely uninvolved – the sale had been at
an advanced stage when the police visited and Mr Grewal had come to the shop to gain experience. He
had only ever made purchases of alcohol from a cash and carry and could produce receipts to that effect.
No stocktaking had been done at the time and so he had been unaware of the wine and spirits bought by
J. Mr Bahal had applied to transfer the Premises Licence to Mr Grewal, naming Mr Gill as DPS and as no
objection had been made he had taken the application to have received tacit approval.
Simon Jones advised that he was not aware of any tacit approval but stated that the police had been
entitled to give notice if they believed the application could undermine the prevention of crime and
disorder licensing objective but they had not done so. PC Lawrence advised that no objection had been
made as he did not believe that the transfer had any bearing on the case. Mr Jones advised that under
Section 44 of the Licensing Act 2003 tacit approval could not be assumed but the Authority had few
options other than to agree if the police did not notify them of an objection. It had been open to the police
to object on the ground of the prevention of crime and disorder licensing objective if they believed a
criminal offence had been committed under the Trade Marks Act 1994, given the presence of the
intended transferee at the time of the initial police visit which might have indicated an existing connection
between the transferor and transferee. Mr Bahal maintained that there had been a genuine transfer of the
business and that tacit approval applied given the lack of police objection to the application. Mr Jones
acknowledged that the application to transfer complicated the issue but pointed out that if the licence
were revoked there would be nothing to transfer. He asked if Mr Bahal was suggesting that the
application for a transfer meant that the hearing could not proceed. Mr Bahal said that he was and that he
had seen no option but to apply for a transfer as Michael Fish had advised him that the absence of a DPS
meant that the shop could not sell alcohol. He advised that if the Panel did not revoke the licence the
premises would be under new management and the new DPS would be on site and not make the same
mistakes that Mr Sandhu had made; Messrs Grewal and Gill had done no wrong and would accept new
conditions on the licence.
Questioned as to the culpability of Messrs Grewal and Gill, Mr Bahal maintained that any reference he
had made to his clients, plural, and their involvement had been inadvertent and that they were innocent of
any knowledge or involvement in any wrongdoing. Mr Grewal had come to the shop to learn the business;
he had not purchased any illicit alcohol and did not appoint J or direct him to buy from any unauthorised
source. All this had, Mr Bahal asserted, been discussed with the police. He accepted Mr Sandhu’s
culpability but rebutted all suggestions that either Mr Grewal or Mr Gill had been involved in any offences.
Michael Fish advised that regarding the transfer, a person could assume the rights of a DPS under interim
authority unless the police objected within 14 days of their being informed of the application to transfer.
The application would normally be granted under delegated authority, however in this case that had not
been done because of the impending review. Section 45.3 of the Licensing Act 2003 said that a transfer
could occur at the end of a review, subject to outcome. The licence itself was under review, regardless of
who currently owned it and if it were to be revoked then there would be no licence to transfer; if not
revoked it could be transferred to Mr Grewal. At this point the Panel adjourned to take legal advice as to
whether it was possible to continue the hearing in the light of Mr Bahal’s claim that the application to
transfer the licence meant that they could not, given Messrs Grewal and Gill had no involvement in the
offences.
Following advice from Simon Jones the hearing recommenced. The Chair advised those present to speak
only to the review. Mr Bahal summed up by acknowledging that Mr Sandhu was responsible for J’s
purchase but asked the Panel for sympathy: it was his first offence of any kind and many shopkeepers
had similarly bought stock from unauthorised sources. He asked for the opportunity to transfer the licence
to the buyers of the shop and advised that new conditions, for example mandating CCTV and Challenge
21, could be added. He maintained that Mr Gill was DPS although not actually present and said that the
sale of the premises had commenced in March 2012, before the police visit and had concluded in late
September. Mr Sandhu was no longer connected with the shop.
PC Lawrence stated that he had a list of conditions that he wanted to be applied should the Panel decide
not to revoke the Premises Licence. Mr Bahal advised that under the circumstances he did not object to
any of those conditions.
Having fully considered the written and oral
representations from the respondent and his
discussed the matter and decided to grant the
the promotion of the four licensing objectives,
representations from the applicant, the written and oral
representative and questioned those present, the Panel
application to revoke the Premises Licence. In addition to
in making their decision the Panel also took into account
the Secretary of State’s guidance as amended under Section 182 of the Licensing Act 2003, the Council’s
statement of licensing policy and the Human Rights Act 2000.
Resolved:
That the Premises Licence permitting the supply of alcohol by G & G Liquor Store 362 Staines Road,
Hounslow, shall be revoked on the grounds of the crime and disorder and the public safety licensing
objectives.
The Panel made their decision on the grounds of the prevention of crime & disorder and the public safety
licensing conditions taking full consideration of paragraphs 11.25 to 11.31 of the amended guidance
issued under Section 182 of the Licensing Act 2003. On the evidence presented the Panel decided that
on the balance of probabilities and the admissions of Mr Sandhu that serious breaches of the Licensing
Act 2003 had occurred, specifically the sale of counterfeit and duty evaded alcohol as specified in
paragraph 11.29 of the guidance, contrary to the prevention of crime and disorder licensing objective. The
sale of counterfeit alcohol was, the Panel decided, of sufficient potential threat to the health of any
purchasers that the public safety licensing objective was also severely undermined.