|Members gave consideration to determine what action to take in relation to an application for a review of a premise licence which had been made at the request of Cleveland Police for Gino's, 18 Yarm Lane, Stockton on Tees.|
Members were advised that the premises currently had the benefit of a premise licence that permitted the provision of Late Night Refreshments during the period - Monday to Sunday 23:00 until 03:00 hours.
The Chair introduced all persons who were present and explained the procedure to be followed during the hearing.
Members noted that the review of the premises licence had been received from Cleveland Police supported by Environmental Health. The representations related to the prevention of public nuisance and public safety objectives.
A copy of the report and supporting documents and statements had been provided to all persons present and to members of the Committee.
Ms Cookson, on behalf of Cleveland Police, addressed the Committee on a preliminary issue. This related to the submission of three additional documents provided by the Holder of the Premise Licence, and received by Cleveland Police late on Monday 18 January 2016.
As there was a potential for the three documents to undermine the case for review, the Police requested an adjournment to make enquiries.
There were no objections to the adjournment.
Members had regard to the nature of the three documents and placed particular weight on the fact that there was some ambiguity as to how the three documents had been obtained from two police officers and a PCSO. Members also gave weight to the fact that Cleveland Police had received the documents less than twenty-four hours before the hearing. This had impacted significantly on their ability to make enquires with the officers concerned.
After giving due consideration to the evidence before them, Members resolved to grant an adjournment for a period of fourteen days to enable the Police to make enquires. The matter, therefore, was reconvened and a further hearing was arranged for 2nd February 2016.
Reconvened Licensing Sub Committee Meeting of 2nd February 2016.
Present: Councillor Paul Kirton (Chair), Councillor Chris Clough and Councillor Bill Woodhead
Officers: S Landles(PH), S Mills(DCE), A Pilgrim(HRC&L)
Also in attendance: Ms Lauren Cookson(Solicitor), PC Johnson(Cleveland Police), Mr Umaid Abdul Karim(Premise Licence holder), accompanied by Mr Imran Abbasi(friend)
There were no declarations of interest.
As a preliminary point, Miss Cookson made reference to the previous adjournment on Tuesday 19 January 2016. This was due to the Respondent providing police memos and a PCSO statement in support of his case. Ms Cookson explained that, during the 14 day adjournment, enquiries had been made with the officers concerned and all three had provided witness statements retracting what they had previously said in support of the Respondent.
Mr Abbassi, on behalf of the Respondent, did respond to this issue in the Respondents submissions (below) however, as a preliminary point, he submitted that he had not received a copy of PC Johnsons statement dated 30 October 2015. Mr Abbassi was in attendance on the last occasion - Tuesday 19 January 2016 - but felt prejudiced and made an application to adjourn proceedings on the Respondents behalf.
Cleveland Police objected to the application to adjourn. Cleveland Police submitted that the papers had been received after Christmas 2015 and there was no suggestion that the Respondent himself had not received the copy papers as they were sent out at the same time.
The Committee took a short adjournment to consider the Respondents application.
It was noted that there had been a lengthy delay in the start time of proceedings due to a fault with the buildings alarm system. During this period, Mr Abbasi had raised this issue with the Legal Advisor to the Committee. Mr Abbasi was provided with a complete set of papers and given a reasonable opportunity to go through PC Johnsons statement dated 30 October 2015 together with the CCTV footage relied upon by Cleveland Police showing events recorded on 12 April 2015 and 18 July 2015.
The Committee noted that the papers had been posted following the festive period. The papers contained an index at page 24 detailing the content of the police evidence. The Respondent admitted that he had received all the papers after the festive period but could not recall when. The Committee noted that it was the Respondents own decision to involve Mr Abbasi and, therefore, it was the Respondents responsibility to ensure Mr Abbasi was furnished with all the papers to assist him. In addition, the Committee noted that the Respondent and Mr Abbassi had both been present at the previous meeting on Tuesday 19 January 2016 but did not raise this at the time.
For the above reasons, the Committee refused the Respondents application to adjourn.
Miss Cookson, on behalf of Cleveland Police, indicated to the Committee that she would be relying on the evidence of two witnesses: PC Johnson and Mrs Stephanie Landles, Environmental Health Officer.
Ms Cookson explained that the Premise Licence currently in place entitled the Premise Holder to supply hot food and hot drink between the hours of 23.00 hours and 03.00 hours, Monday to Sunday.
In 2014, a test purchase was carried out at the premise which resulted in the Respondents prosecution for supplying hot food beyond the terminal hour. Despite being convicted for the relevant offence, the Respondent had continued to act in breach of the Premise Licence by supplying hot food after the terminal hour - 03:00 hours.
Ms Cookson submitted that the crime prevention objective was being undermined and referred to two assaults which had been reported to Cleveland Police. Both of which had occurred after 03.00 hours within the premise. On both occasions, the perpetrator/s and victim/s had gone in to obtain hot food beyond the terminal hour of the premise licence.
Ms Cookson referred to the witness statement of PC Johnson contained within the report and submitted to that there had been 15 incidents in total. Ms Cookson called PC Johnson to give evidence in respect of the most relevant incidents.
PC Johnson explained that his first contact with Ginos occurred in November 2011. It had come to PC Johnsons attention that the Respondent, Mr Abdul Karim, was requesting a variation to increase the hours for the provision of late night refreshment from 03.00 hours to 04.30 hours on a Friday and Saturday only. At a committee hearing on 04 January 2012, Cleveland Police objected to the application based upon evidence of incidents of disorder and supplying hot food beyond the terminal hour. The application was refused.
PC Johnson expanded upon the incidents which led to the Respondents prosecution for supplying late night refreshment beyond the terminal hour. PC Johnson explained that Cleveland Police had received a number of complaints about business premises located on Yarm Lane trading beyond their hours. Not just in relation to the Respondents premises but other premises of a similar nature trading along the same stretch of road. In the early hours of Sunday 5 February 2014, PC Johnson and two Local Authority Licensing Officers were patrolling the Yarm Road area to ascertain whether licensable activities were being conducted outside permitted hours. Mr Wynn, one of the Local Authority Licensing Officers, entered the Respondents premises at approximately 03:20 hours and successfully purchased a pizza. At the time of the purchase, two police officers came into the premise and advised the Respondent to stop serving hot food as this was beyond the permitted hours under the Premise Licence. The Respondent proceeded to turn the lights down and, once the police officers had gone, he continued to serve hot food. The Respondent was successfully prosecuted for the offence and the Committee were referred to a copy of the letter confirming this dated 22 July 2014.
On 09 April 2014, Cleveland Police received notice of a minor variation for the opening hours for the Respondents premise from 03.00 hours to 06.00 hours. PC Johnson raised concerns with the Licensing Service at that time but, as the opening hours was outside the control of The Licensing Act 2003, and not, therefore, a licensable activity, the Respondents application was granted.
On Monday 8 September 2014, PC Johnson, accompanied by Polly Edwards, a Local Authority Licencing Officer visited the Respondents premises. The CCTV was not working at the time contrary to the conditions on the Premise Licence, and the Respondent was not on the premise. The staff member questioned about the CCTV stated he was new and, therefore, unaware of the conditions of the Licence. He did, however, manage to speak to the Respondent on the telephone, who stated that the CCTV would be working within two weeks. PC Johnson returned to the premise on 27 September 2014. The CCTV system was still not working and the Respondent indicated that he would have CCTV up and running by Monday 29 September 2014. The Local Authority was subsequently informed that it was now in operation.
On Sunday 15 March 2015, at approximately 03.15 hours, PC Johnson explained that he was on duty in the company of Polly Edwards from Stockton Borough Council and had attended the Yarm Lane area of Stockton to see if any takeaway premises were open. PC Johnson explained to the Committee that he observed Ginos open but both himself and Miss Edwards decided against attempting to purchase any hot food as they would both be recognised by the Respondent. However, PC Johnson explained that he had observed several members of the public walking from the premises carrying pizza boxes. Whilst he could not tell if the food was hot, it was more probably than not hot food in his professional opinion.
Ms Cookson, on behalf of Cleveland Police, then referred the Committee to the anonymous statement of a male victim. The victim in question had been physically assaulted inside the Respondents premises during the early hours of Saturday 21 March 2015 at approximately 04:00 hours. The victim suffered a broken jaw and a cracked wisdom tooth. PC Johnson informed the Committee that, whilst the assault was, of course, very serious, the relevant issue for the Committee was that the victim and independent witness had visited the Respondents premise to purchase garlic and chips and chips. Although neither witness mentioned the temperature of the food, PC Johnson suggested that it was difficult to believe that the Respondent would be selling cold chips to members of the public. As the assault occurred after the terminal hour for the supply of hot food, this was, again, evidence of the breach of the conditions of the Premise Licence.
The Committee were referred to a copy of CCTV footage exhibited to PC Johnsons statement as AGT/4 dated 12 April 2015. The Committee and Respondent had viewed his footage prior to the commencement of the hearing. The footage showed a steady stream of people going in and out of the Respondents premises between 04.04 hours and 04.24 hours. Although this, in itself, was not prohibited, PC Johnson pointed out that, during this period, people were seen leaving the premises with open containers of food and, at least two people, left with pizza boxes. The footage was recorded more than one hour after the Respondents premises should have ceased to supply hot food. Again, whilst it was not possible to say with certainty whether the food was hot, it would be unusual to supply cold food in pizza boxes.
PC Johnson then referred to an incident on Saturday 18 July 2015 at approximately 05.20 hours when a female reported to the police that she had been assaulted by a male in the Respondents premise. Footage from Stockton Borough Councils CCTV cameras situated on Yarm Lane had been shown to the Committee and Respondent prior to the hearing (exhibit AJT/3). The footage showed two females eating pizza inside the Respondents premise, one of whom was approached by a male, who subsequently assaulted her. Cleveland Police attempted to obtain the Respondents own internal CCTV footage of the incident on 24 and 25 July 2015 but the Respondent was unable to operate the system. An officer went back on 26 July 15 but as the CCTV had only been set to record a cycle of five days, the incident had been deleted.
Miss Cookson, on behalf of Cleveland Police, drew the Committees attention to the condition set out in the Premise Licence which indicated that CCTV equipment shall be maintained in good working order in accordance with the manufacturing instructions. There was nothing within that paragraph to say that the CCTV had to record for a set number of days. Therefore, the term not necessarily unlawful but unsatisfactory for the purpose for which it was intended.
PC Johnson went on to explain a further incident, which took place in the early hours of Sunday 19 July 2015. In accordance with procedure, the Ambulance Service had reported to the Police that they were attending an incident in which a male had been assaulted outside of the Respondents premise. The incident occurred around 03.50 hours and the male suffered an assault to the face causing his nose to bleed and swell. PC Johnson was of the view that, had the premises not been open at that time, the incident may not have occurred.
Ms Cookson, on behalf of Cleveland Police, went on to refer to the statement of Paul Shepherd, a Neighbourhood Enforcement Officer attached to the papers at page 73. Mr Shepherd described an incident which occurred at 04.50 hours on Friday 18 September 2015 when he was on patrol on Yarm Lane. At that time, he noticed that the Respondents premise was open and a number of people were inside the premise. Mr Shepherd observed a member of staff lifting a basket out of the fryer and then tipped the contents into a container. He then signalled the customer over and handed him a polystyrene container. Cleveland Police again submitted that it was unlikely that the food supplied to the customer was cold food given the circumstances in which it was put into the container.
The Environmental Health Officer from Stockton Borough Councils Environmental Health Service gave evidence in support of Cleveland Polices application.
It was stated that, in the early hours of the morning on 10 October 2015, the Environmental Health Officer had been part of a patrol of the area. As part of this patrol, she visited the Respondents premise to attempt to purchase hot food. At approximately 03.20 hours, the Environmental Health Officer walked into the premise. She observed the fryer in operation and lots of pizzas going in and out of the oven. The Officer recalled an argument taking place before it was her turn. The Officer asked for a particular pizza, however was offered an alternative as the one asked for was no longer available. The Officer ordered a different pizza, paid for it and left the premise with the pizza. The Officer was in no doubt that the pizza was very hot.
In summary, Ms Cookson submitted that Cleveland Police had very serious concerns about the evidence and the blatant disregard for the promotion of licensing objectives. In particular, Ms Cookson referred to the repeated incidents of supplying hot food beyond the terminal hour; the incidents of violence within the premises which appeared to be directly linked to individuals going in to the premise to purchase hot food; and the apparent reluctance, or inability, to properly operate the CCTV system. The cumulative effect of this evidence led Cleveland Police to have very little confidence in the management of the premise.
Ms Cookson added that there would be no point reducing the opening hours as the Respondent had already demonstrated a blatant disregard for the premise licence condition requiring him to stop supplying hot food beyond the terminal hour. Ms Cookson referred the Committee to Section 52(4) of The Licensing Act 2003 and reminded members of their power to revoke a licence if they were satisfied that it was necessary for the promotion of the licensing objectives.
Mr Abbasi, on behalf of the Respondent, addressed the Committee initially regarding the police memos and PCSO statement which had been obtained by the Respondent. Mr Abbasi submitted that the Respondents lack of English prevented him from painting the correct picture, and there was no intention to mislead the officers in the case.
Mr Abbasi submitted that the Respondent had successfully contributed to the night time economy within Stockton and the Respondent was willing to work with Cleveland Police and the Local Authority if they wished to apply any restrictions on the Premise Licence. Mr Abbasi submitted that the premise was the Respondents only source of income and if the Premise Licence was revoked, the Respondent would be detrimentally affected.
When asked during the meeting about the allegation that hot food had been observed coming from the premises in pizza boxes and other containers, the Respondent submitted that it was not hot food. He purchased microwavable cold food from local supermarkets, such as pizza and burgers, and simply heated them up in the microwave to serve to members of the public.
The Committee considered carefully the evidence presented by both parties during the course of the meeting. The Committee gave weight to the fact that, despite the prosecution in 2014 for operating beyond the terminal hour of supply of hot food, the evidence suggested that the Respondent was continuing to do so and had a blatant disregard for the conditions set out in the Premise Licence. The Committee gave weight to the evidence of PC Johnson and the CCTV footage which indicated that hot food circumstantially appeared to be coming from the premise after the terminal hour. The Committee were particularly persuaded by the direct evidence of the Environmental Officer who could say, with some degree of certainty, that she was supplied with a hot pizza at 03.20 hours as recent as October last year.
The Committee were extremely concerned about the impact on the licensing objectives of the Respondents activities and gave weight to Cleveland Polices view that simply reducing the opening hours would not address the problem. The Respondent had demonstrated a total disregard for the conditions of the Premise Licence and the Committee had little faith in the Respondents ability to manage the premise properly in accordance with those conditions.
By his own admission, the Respondent was heating cold food in a microwave after 03.00 hours and supplied this to members of the public who were prepared to pay for it. The Committee were concerned that the Respondent either knew, or did not understand, that this was hot food once it was heated above ambient air temperature, and once supplied after 03:00 hours, it was also a breach of the Premise Licence. The Committee were satisfied that, on balance of probability, the Respondent was continuing to supply hot food beyond the terminal hour, and on the occasions evidenced by Cleveland Police.
For the reasons above, the Committee considered it necessary for the promotion of the licensing objectives to revoke the Premise Licence for the provision of late night refreshment in accordance with Section 52(4)(e) of The Licensing Act 2003.