The Sub-Committee is requested to determine the matter.
Minutes:
The Sub Committee had to determine whether the hearing ought to be held in private session, with the press and public excluded. There was some discussion on the matter and on the basis that third parties are identified in the papers (as yet unpublished) and to enable parties to give evidence freely, it was determined that the meeting be held in private, and the decision be drafted and agreed by the parties with a view to release/publication. It was determined this was in the public interest in accordance with regulation 14 of the Licensing Act 2003 (Hearings) Regulations 2005.
The Sub Committee has considered very carefully the application for review of a premises licence at the Chimney Bar. It gave due regard to the Licensing Act 2003, the Licensing Objectives, statutory guidance and the adopted statement of licensing policy.
The Sub Committee considered the relevant representations, both written and given orally at the hearing, by all parties. Human rights legislation and the public sector equality duty had been borne in mind whilst making the decision.
The Sub Committee determined that it was appropriate, given all the circumstances and the history of failing to engage with various regulatory services and repeated breaches of the premises licence over a lengthy period, to revoke the premises licence.
Reasons
The application for review had been submitted by the Licensing Authority and representations had been received from the police, environmental health (regulatory services) and planning. Having heard from planning the Sub Committee noted and accepted legal advice that it was to focus upon the licensing objectives only but noted the irregularities and history. Correspondence from the premises licence holder offering means of settling the review in advance had been circulated to the Sub Committee.
The premises licence holder requested that the transcript of the interview of the premises licence holder be made available to Sub Committee and a short adjournment was allowed for this to be produced and read. The premises licence holder was also given an opportunity to take advice privately and this was taken up.
For the premises licence holder, the Sub Committee heard (amongst other points):
- The premises and the business do not belong to the premises licence holder, but rather his brother.
- The Hall & Woodhouse v Poole Borough Council case has established (in essence) that the premises licence holder is only liable if conducting the licensable activity - it is not automatic that the premises licence holder is liable.
- Family problems at time of the issues were raised.
- The operations manager was responsible for opening and sales after hours and was stealing from the business by privately purchasing alcohol and selling for private gain. He has now been sacked, although it was accepted he was kept on until after Christmas.
- Only one sale of alcohol took place at these premises after authorised hours.
- The premises licence holder had mistakenly understood that an amendment of the plan had been approved by variation.
- The proposed steps to settle (e.g. removal of on-sales, removal of DPS and suspension etc.) are appropriate and proportionate as a response and would tackle the issues raised.
- The premises had been closed since New Years Eve and would remain closed until sold.
The Sub Committee must assert that its function is not to determine guilt or liability for criminal offences. Accordingly, the cited case had limited relevance in so far as considering responsibility in accordance with the Act for licensable activities at the premises, which ultimately rests with the premises licence holder. It was accepted that the Act sets out little detail as to the role of the DPS, however, the statutory guidance makes it clear that the DPS should be the first point of contact for the responsible authorities and is responsible for ensuring the licensing objectives are properly promoted and conditions attached to a licence are adhered to.
Whilst only one sale is accepted to have taken place after permitted hours it is clear the premises were open for business on at least one other occasion. CCTV, when requested could not be accessed, despite the requirements of the licence conditions.
The premises had been associated with noise nuisance and formal action was required in the form of an abatement notice, despite warning.
The Sub Committee were satisfied that the premises had a prolonged and extensive history of non-compliance with almost every regulatory regime. At best this was due to mismanagement and a lack of due diligence and at worst wilful refusal.
Every option set out in the report was considered, including the proposed actions on behalf of the premises licence holder. However, given the repeated warnings and opportunities provided to engage the Sub Committee could not accept them as appropriate. It excluded considerations of commercial saleability of the premises, likewise assertions that the premises would remain closed.
There is a statutory right of appeal which must be lodged at the Magistrates' Court within 21 days of receipt of formal notification of this decision. Formal notification of the decision shall set out that right in full.
RESOLVED to revoke the premises licence.