|Members considered a report to determine an application for the grant of a premise licence from Reny Varghese, in relation to Del Convenience Store, 6 Rimswell Parade, Stockton-on-Tees under the Licensing Act 2003 to which there has been representations from a responsible authority and from interested parties. |
The applicant had applied for a licence for the following:
Supply of Alcohol Off the Premises
Monday to Saturday 08.00 until 22.00 hours
Sunday 10.00 until 22.00 hours
A copy of the application was provided to Members.
Representation had been received from Cleveland Police. The representation related to the prevention of crime and disorder, the prevention of public nuisance, the protection of children from harm and public safety objectives. A copy of the representation was provided to Members. The applicant had agreed an amendment to his operating schedule which if granted would add conditions to the licence as agreed with Cleveland Police and a copy of these were also provided.
The applicant had also agreed with Trading Standards to amend his operating schedule and the agreed conditions were provided to Members of the Committee.
Eleven representations had been received from interested parties wishing to object to the application. The representations related to the prevention of crime and disorder, the prevention of public nuisance, the protection of children from harm and public safety objectives.
Members gave consideration to the report, the application and the representations which had been received.
Mr Harvard (Applicant's Solicitor) stated that the applicant held a personal licence under the Licensing Act 2003 and could read and write English. Mr Harvard stated that he understood that there had been an off licence in the premises for around 20 years but that in the last 2 or 3 years there had been increasing difficulties with gangs of youths congregating outside. Mr Harvard stated that the parade of shops included a pizzeria, hairdressers, bakers, post office and newsagents. There were marked bays for cars to park and some on street parking in the vicinity.
Mr Harvard confirmed that the applicant had taken into consideration the representations made by local residents and wishes to amend his application to reduce the terminal hour on a Sunday and the closing time to 20:00 hours.
Mr Harvard stated that he represented Mr Varghese in relation to the licensing issues regarding the premises. Mr Varghese was represented by Askew Bunting Solicitors in relation to the property issues and he was in negotiation with Mrs Kaur the previous licence holder in relation to the purchase of the business and the transfer of the lease. Mrs Kaur was represented in relation to that transaction by Appleby Hope and Matthews Solicitors. Mr Harvard provided copies of documentation in relation to the sale of the business which included copies of letters between the respective solicitors. Askew Bunting were currently taking up references on behalf of Mr Varghese with the landlord of the premise and Mr Varghese would not proceed with the purchase unless he had some certainty that a premises licence would be granted.
Mr Harvard noted that the Polices concerns in relation to this application were whether it was a genuine bona fide transaction. Mr Harvard confirmed that there was no family relationship between the Varghese family and Mrs Kaur. Mr Harvard confirmed that Mr Varghese had signed an undertaking dated 11 April 2013, which states that Reny Varghese would not:-
1. Employ Aneeta Kaur in connection with the management of the business or employ her to work at the premises after the completion of the purchase of the business and the assignment of the current lease to me.
2. Make any use of the Premises Licence until his Solicitors had completed;
(a) The purchase of the business carried on at the Premises
(b) The Lease of the Premises had been formally assigned to Mr Varghese.
3. Mr Varghese had no personal family or business relationship with Aneeta Kaur other than in connection with his proposed purchase of the business carried on at the premises.
Mr Harvard stated that Mr Varghese had a personal licence but to date had not utilised it. Mr Varghese brother also had a personal licence and had experience of working in off licences in London and Norton. Mr Harvard stated that both Varghese's would work in the shop along with Mrs Varghese.
Mr Harvard stated that if the licence was granted then during the interim Mr Varghese would intend to work in the shop while the transfer of the lease and purchase of the business was completed.
Mr Harvard noted the applicant had agreed to amend his operating schedule and that conditions had been agreed with Trading Standards and Cleveland Police.
Mr Harvard addressed Members in relation to each of the eleven representations which had been received. Mr Harvard stated that a number of the representations refer to sufficiency of premises which was not a relevant consideration under the Licensing Act and should be disregarded by Members. Some representations referred to extended opening hours but this was not the case and following Mr Varghese's reduction in the hours on Sunday, the opening hours would be the same as previously and less on a Sunday. It was accepted that the previous licence holder had undermined the licensing objectives and that following a review of the licence the licence had been revoked. Mr Harvard stated that this was an entirely new application and should be considered on its merits.
A number of the representations referred to general anti-social behaviour by gangs of youths who hung around the parade of shops. Mr Harvard stated that the shop could open in any event and that youths would tend to congregate around parades of shops. The application was solely for the supply of alcohol and there was no evidence that the applicant would undermine the licensing objectives.
Some of the objections referred to under age sales related to the previous licence holder. Mr Harvard noted that the Police had taken action against the previous licence holder and the licence had been revoked.
Mr Harvard called evidence from Mr and Mrs Varghese and Mr Jimnoy Varghese.
Mr and Mrs Varghese stated that they had been looking for business premises on the internet and had previously looked at a premise in Middlesbrough. They decided to pursue their interest in Del Convenience Store as it was cheaper than the premise in Middlesbrough.
The representative of Cleveland Police was given an opportunity to ask questions of Mr and Mrs Varghese.
Mrs Nevison (Solicitor for Cleveland Police) stated that the Polices concern over the application was that the purchase of the business may not be a bona fide transaction. Mrs Nevison stated that to date the sale of the business and transfer of the lease had not taken place. Mrs Nevison called evidence from PC Johnson.
PC Johnson stated that the Police did have some concerns over Mr Varghese's lack of experience but they accepted that in itself was not a ground to object to a person holding a premises licence.
It was noted that Cleveland Police had agreed with the applicant that the following conditions be attached to the premises licence should the licence be granted:-
1. A digital closed circuit Television System (CCTV) would be installed both internally and externally (externally to cover the premises in order to deter any person congregating in the vicinity) and maintained in good working order and be correctly time and date stamped. The system must incorporate sufficient built in hard drive capacity to suit the number of cameras installed, whilst complying with Data Protection legislation. CCTV would be capable of providing pictures of evidential quality in all lighting conditions, particularly facial recognition. Cameras would encompass all ingress and egress to the premises, outside areas and all areas where the sale/supply of alcohol occurred. There would be a minimum of 14 days recording. The system would record for 24 hours a day. The system would incorporate a means of transferring images from the hard drive to a format that could be played back on any desktop computer. The digital recorder must have the facility to be password protected to prevent unauthorised access, tampering, or deletion of images.
2. There would be at all times a member of staff on duty who was trained in the use of the equipment and upon receipt of a request for footage from a governing body, such as Cleveland Police or any other responsible authority, be able to produce the footage within a reasonable time, e.g. 24 hours routine or less if urgently required for investigation of serious crime.
3. An incident book would be kept and maintained on the premises at all times. The book would detail in brief, incident of injury / ejection / refusals / drug misuse & seizure / age challenge etc. Such matters shall be timed, dated and signed by the author and produced to Police and any other responsible authority including the licensing authority immediately on demand.
4. A Challenge 25 policy would be implemented and all staff must insist on proof of age from any person appearing to be under 25 years of age and who was attempting to purchase alcohol. The only acceptable proof of age would be a valid photo identification confirming the purchaser's age namely a passport, photo driving licence or PASS approved proof of age card.
5. All staff would be fully trained and retrained on a 3 monthly basis in relation to the laws relating to the sale of alcohol to underage persons, persons buying on behalf of under 18's (proxy sales), persons appearing to be under the influence of alcohol and also the operation of the associated Challenge 25 policy. Staff would receive refresher training at least every 3 months.
6. Training records, signed by both the staff member and the Designated Premise Supervisor/Manager/Business Owner must be retained for future reference and must be updated at least every 3 months. All staff training records would be made available to enforcement agencies and/or Responsible Authorities upon request.
7. There would be a minimum of three notices displayed on the premises indicating that the sale of alcohol to those under the age of 18 was illegal and that those adults who bought alcohol for immediate disposal to those under the age of 18 were committing an offence. One notice would be displayed on the entrance/exit door, one on point of sale and one was to be situated where the alcohol was displayed.
It was noted that Mr Varghese had agreed conditions with Trading Standards to be attached to the premises licence if granted. The conditions mainly replicated those agreed with Cleveland Police in relation to the keeping of an incident book and display of notices on the premise.
Mr Allison was in attendance at the meeting and Members invited him to outline the grounds of his representation. Mr Allison confirmed that he now appreciated that sufficiency of premises in the locality was not a relevant ground under the Licensing Act 2003. Mr Allison stated that his main concern was over the gangs of youths who congregate around the premise.
Members had regard to the eleven written representations which had been received from local residents living within the vicinity of the premise.
All parties were given an opportunity to sum up with the applicant having the final submission.
Members noted that the application before them was for a variation to the premises licence requesting the supply of alcohol from 08:00 to 22:00 Monday to Saturday and 10:00 to 20:00 on a Sunday. The hours sought for the Sunday had been amended by the applicant following the consideration of the representations from local residents.
Members noted that the Police had indicated in their representation that "Cleveland Police do not object outright to the new application and the new Premise Licence Holder, this is subject to the sale of the leasehold of the premises by Aneeta Kaur (previous licence holder) to Reny Varghese".
Members considered the application in two stages, firstly whether the representations from residents gave sufficient evidence and grounds to persuade Members to conclude that the licensing objectives would be undermined if the application was granted.
Members had no evidence before them that demonstrated the licensing objectives would be undermined if the licence was issued. Members were mindful of the relevant case law and in particular the case of Daniel Thwaites. It was noted that many of the representations from local residents had complained about general anti-social behaviour in the vicinity of the parade of shops. The current applicant could not, in the opinion, of the Members, be held responsible for any existing anti-social behaviour problems in the vicinity. It was noted that this application was solely for the supply of alcohol and that even if the application was refused the premise could still trade for the hours sought for the supply of alcohol. Members had no evidence before them to persuade them that if the application was refused then anti-social behaviour would reduce in the area. Members had no evidence before them which would persuade them to conclude that the new applicant would be responsible for under age sales of alcohol. Given that the applicant was well aware that the previous licence had been revoked he would, Members, hoped be particularly vigilant to ensure that under age sales did not occur. The Police had been quite candid that they would ensure the premise was monitored to ensure there were no under-age sale of alcohol at the premise. Members had not been provided with any statistics detailing the level of anti-social behaviour in the vicinity. It was impossible for Members to make any reasoned assessment linked to anti-social behaviour.
The previous problems that had occurred at the premise concerned the supply of alcohol to persons under the age of 18. Those problems had been resolved and following a review application by Cleveland Police the premises licence had been revoked. This was a totally new application and it had to be considered on its own merits and not result in prejudice connected with the previous history of the premise. There was no evidence presented that Mr Varghese would undermine the licensing objectives. The evidence presented to Members indicated that the sale and purchase of the business was a bona fide transaction and Mr Varghese had signed an undertaking to that effect.
The Licensing Sub Committee were legally obliged to consider the application in accordance with the Licensing Act 2003 and irrelevant issues could not form part of their decision making and had to be disregarded. Members were satisfied from the evidence that had been presented that there was no evidence to persuade Members that the licensing objectives would be undermined if granted.
After giving consideration to all of the evidence and representations made both in writing and orally
Members were satisfied that the licensing objectives would not be undermined and the application for the premises licence was approved for the following hours:-
The supply of alcohol - Monday to Saturday 08:00 to 22:00 Sunday 10:00 to 20:00 (with the premises been open to the public for the same hours)
In addition to the conditions agreed with Cleveland Police and Trading Standards the Committee resolved to attach two additional conditions to the licence, namely:-
Any alcoholic product exposed for sale on the premise which was to be supplied under the premise licence authorising the supply of alcohol must be clearly marked with the business name either by use of labels, stickers or some other mark such as an ink stamp. The label, sticker or mark must be clearly visible on the bottle, can or packaging of the alcoholic product.
Aneeta Kaur must not be employed in connection with the management of the business or employed to work at the business or undertake any voluntary work at the business and should not be involved in any way in any sale or the supply of alcohol at the business at any time.
Given the finding that there were no grounds to persuade Members that the licensing objectives would be undermined Members went on to consider how the sale of the business and transfer of the lease could be accommodated in this licence application process in order to satisfy the concern of Cleveland Police. Members indicated that they were minded to grant the application for a premises licence but to resolve that the licence should not be physically issued to Mr Varghese until he could provide documentary proof to the satisfaction of the Licensing Authority that the sale of the business and transfer of the lease had been concluded. Mr Harvard was informed that as he was the Solicitor dealing with the licensing application that he should obtain documentary proof of the sale of the business and the transfer of the lease to Mr Varghese.
Members wished to remind persons who had made a representation that should there be any crime and disorder, public nuisance or other relevant issues in the future then these should be raised firstly with the premise and also with the responsible authorities such as Cleveland Police, the Council's Environmental Health Section or Licensing Section. The Licensing Act 2003 provided legal routes for persons to ask for a review of the premises licence should the premise cause problems linked to the four licensing objectives. Applications for a review would have to be supported by evidence and it was therefore in the best interests of residents to report any matters of concern linked to this premise to the appropriate authorities. The Councils Licensing section could provide advice on the procedure that should be followed should it be believed that a premise was undermining the licensing objectives.