Licensing Sub Committee (ceased to operate 10/04/2017) Minutes

Date:
Monday, 21st November, 2011
Time:
02.00 p.m.
Place:
Council Chamber, Town Hall, High Street, Stockton on Tees, TS18 1AJ
 
Please note: all Minutes are subject to approval at the next Meeting

Attendance Details

Present:
Cllr Eileen Johnson, Cllr Paul Kirton and Cllr Bill Woodhead.
Officers:
J Nertney (LD); C Barnes (DNS).
In Attendance:
Cleveland Police - Sergeant Daley and PC Iceton in attendance (represented by Mr Hill, Barrister)
Respondent: Mrs Cupper and Mr Starr, representatives of Spirit Pub Company the Premise Licence Holder were in attendance (represented by Mr Phipps, Solicitor). Also in attendance was Mr Hutchinson the Designated Premises Supervisor.
Apologies for absence:
None
Item Description Decision
Public
LSC
25/11		 APPOINTMENT OF CHAIRMAN
 RESOLVED that Councillor Kirton be appointed Chair for this meeting only.
LSC
26/11		 DECLARATIONS OF INTEREST
 There were no interests declared.
LSC
27/11		 THE KINGS ARMS, WOLVISTON ROAD, BILLINGHAM, STOCKTON ON TEES - APPLICATION FOR REVIEW OF A PREMISE LICENCE UNDER THE LICENSING ACT 2003
Preamble
RESOLVED that:-

1. The Premise Licence be suspended for a one week period.

2. The following conditions be attached to the licence:-

1. A Challenge 25 policy will be implemented with all staff insisting on evidence of age from any person appearing to be under 25 years of age and who is attempting to buy alcohol or other age restricted products. There shall be sufficient public notices displayed at the premises to inform customers and remind staff that the premise is operating a Challenge 25 policy.

2. All staff will 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 will receive refresher training at least every 3 months.

3. Training records, signed by both the staff member and the Designated Premise Supervisor/Manager/Business Owner will be retained for future reference and shall be updated at least every 3 months. All staff training records will be made available to enforcement agencies and/or Responsible Authorities upon request.

4. The business will maintain a system to record all instances where the sale of age restricted products have been refused. This shall include the date and time of the attempted sale, together with a description of the incident. Data on refusals shall be made available to enforcement agencies and/or Responsible Authorities upon request and in any event within 7 days.

The conditions as attached mean that current Annex 2, Condition 2 under the Crime and Disorder objective is now redundant and shall be removed from the licence.
2.00 pm - 5.00 pm

Preamble

ItemPreamble
LSC
27/11		The Chair introduced all persons present and explained the procedure that would be followed.

A copy of the report and witness statements had been provided to all those persons present and to Members. Members noted that the review of a premises licence was made at the request of Cleveland Police. Representations in support of the review had also been submitted by Trading Standards who were in support of the Polices review application. Members noted that additional documentation in response to the Polices review application had been circulated prior to the hearing by the premise licence holders representative. The documentation submitted on behalf of the premise licence holder included copies of their e-learning training package and documentary evidence of their training for staff and records of such training. Members noted that two representations had been received from members of the public supporting the DPS.

Mr Hill on behalf of Cleveland Police outlined the Police grounds for the review which included two positive underage sale at the premise in a short period of time which if pursued as a criminal offence would constitute persistent sale of alcohol to minors. In addition there had been breaches of licence conditions. The two under age sales had taken place on 20 July 2011 when 2 bottles of Smirnoff Ice had been sold to a 14 and 15 year old female volunteers and on 31 August 2011 when two pints of lager had been sold to two 16 year old male volunteers. On each sale a different member of bar staff had been responsible.

Mr Hill called evidence from PC Iceton. PC Iceton stated that the test purchase operation had been undertaken following intelligence that under age drinking was occurring in the premise.

Following PC Iceton's evidence questions were asked by the representative of the premise licence holder and Members.

A representative from Trading Standards was not in attendance but Members noted that they supported the Polices review application.

Mr Phipps accepted that two sales in such a short period of time would be an aggravating factor and can lead to a criminal offence. Mr Phipps stated that what had happened was extremely bad luck and not poor management or poor behaviour by the premise licence holder.

It was accepted that something had gone wrong as there have been two under age sales. The Spirit Group had a significant commitment to training their staff. Mr Phipps took the Members through the large bundle of materials he had provided.

Mr Phipps noted that the team briefings all make reference to the need for I.D checks and that these were after the second under age sale.

Mr Hutchinson the current DPS manages the premise along with his wife. They were an excellent management team and had been held to be a best practice premise which has been sued to train other managers. Following the first under age sale Mr Hutchinson and his wife were suspended while an internal investigation took place. Mr Hutchinson and his wife had been at the premise for almost a decade. Even though the first sale had occurred and the facts brought to the attention of staff there was still a second sale and they found this hard to explain. The premise had introduced Challenge 25 which should provide a significant buffer so that this does not happen in future. The letters in support of the premise stated that they regularly see customers challenged for I.D.

The other issues at the premises which constituted breaches of the licence had been addressed. Mr Phipps apologised for the failure to attend Pubwatch but this had been an oversight. The issue with the noise limiter had now been resolved and all doorstaff were now required to sign in with their full digit SIA number.

Mrs Cupper and Mr Hutchinson also gave evidence to Members about their roles and what action had been taken to address the issue.

The representatives of the premise licence holder were asked questions by the Polices representative and Members.

All parties were given an opportunity to sum up with the premise licence holders representative having the final submission.

In considering their decision Members had regard to the evidence which had been presented to them. Members also had regard to the statutory guidance issued under Section 182 of the Licensing Act 2003 and the Council’s Licensing Policy.

It was noted that the evidence put before the Committee was mainly based on the Crime and Disorder objective. However the two underage sales at the premise made the protection of Children from Harm licensing objective relevant.

Members were concerned by the fact that the premise had two under age sales. Not only had two sales taken place but they had occurred in close proximity which if prosecuted as a criminal offence could constitute persistent sale of alcohol to minors.

Members noted that Mr Hutchinson had been suspended from the premise following the first under age sale. Had Mr Hutchinson been at the premise for the second sale then he would have been highly likely to have been removed as DPS. However Members took into account that Mr Hutchinson had only been in post for one sale and also had a long and unblemished record. Members appreciated that this issue would have been the cause of some distress to Mr Hutchinson. Members hoped that at the time of the first sale Mr Hutchinson had not become complacent in his oversight and training of staff and that this experience would have served as a valuable lesson to him. Mr Hutchinson would now be well aware that further under age sales at his premise can result not only in disciplinary action by the Company but removal of his role as the DPS by Committee. Members were therefore of the view that it was not necessary to remove the current DPS on this occasion.

Of most concern to Members was that each of the under age sales had been made by separate members of staff. Not only that but that the sale had occurred in relatively short timescale. The Police had given evidence that you would normally expect a second test purchase operation to result in a negative sale but this had not been the case. In the view of Members this indicated that there was an issue with the training regime carried out by Sprit Group.

Responsibility for ensuring training was sufficient rested with the premise licence holder. It was arguable that prior to the under age sales they should have been taking steps to ensure that their training was been correctly implemented. There was an element of ‘closing the stable door after the horse had bolted’. If the premise licence holders training regime had failed in some way then they needed to address that to ensure it did not happen in the future. The Premise Licence Holder had addressed the issues at the premise but if further under age sales occurred in future this could indicate that there was an inherent flaw in the training regime or that this particular premise was the problem and that the premise licence holder was failing in their duty. The Premise Licence Holder should be in doubt that further positive test purchases at the premise would be highly likely to result in the revocation of the licence.

Members felt that a period of suspension was appropriate because of the seriousness of under age sales. A period of suspension should also be imposed which would act as both a deterrent and a punishment for the premise licence holder. Members had regard to both the guidance under Section 182 of the Licensing Act and relevant case law including R (Bassetlaw District Council) v Worksop Magistrates Court [2008] WLR (D) 50. It was noted that the respondents in the Bassetlaw case had been unrepresented and had not attended the proceedings and as such the Committee were mindful that the case was persuasive and not binding in law.

Members noted that the statutory guidance stated that “the purchase and consumption of alcohol by minors” was a criminal activity that was deemed to be particularly serious. Members noted that the test purchases at the premise had come about as a result of intelligence that the premise did have an issue with sales of alcohol to persons under the age of 18. Members noted that the statutory guidance made the reference to the fact that “for instance, a licence could be suspended for a weekend as a means of deterring the licence holder from allowing the problems that gave rise to the review to happen again”. The guidance did not state what particular issues suspension for a weekend would be an appropriate response. Members noted that the Act allowed for suspension for a period of up to three months. In this case Members were of the view that the circumstances were aggravated by the fact that the two under age sales had taken place in a short period of time i.e. just over one month. Members noted that the guidance views sale of alcohol to minors as serious and therefore concluded after considering all of the facts that the licence should be suspended for two weeks. Members did not view this as a departure from the guidance but in any event even if it was deemed to be a departure from the guidance this was deemed both proportionate and necessary in the particular facts of this case.
Members also agreed to attach conditions to the licence.

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