PAPER B

Committee: LICENSING (DETERMINATIONS) SUB-COMMITTEE

Date: 22 MAY 2007

Title: APPLICATION FOR THE REVIEW OF A PREMISES LICENCE FOR BAR BLUU, 17 ST JAMES STREET, NEWPORT, ISLE OF WIGHT, PO30 5HB

REPORT OF THE HEAD OF CONSUMER PROTECTION

1. SUMMARY/PURPOSE

For the Licensing Sub-Committee to determine an application made by Hampshire Constabulary under section 51 of the Licensing Act 2003, to review the premises licence for Bar Bluu, 17 St James Street, Newport, Isle of Wight.

2. BACKGROUND

a) The mechanism to review a premises licence exists to protect the community where problems associated with crime and disorder, public safety, public nuisance or the protection of children from harm are occurring at a premises for which a premises licence has been granted under the Licensing Act 2003.

b) At any stage, following the grant of a premises licence, a responsible authority, such as the police or the fire authority, or an interested party, such as a resident living in the vicinity of the premises, may ask the licensing authority to review the licence because of a matter arising at the premises in connection with any of the four licensing objectives.

c) Licensing authorities may not initiate their own reviews of premises licences. Officers of the local authority who are specified as responsible authorities under the 2003 Act, such as Environmental Health Officers, may however request reviews on any matter which relates to the promotion of one or more of the licensing objectives.

3. DETAILS OF THE APPLICATION

This application is for a review of a Premises Licence under Section 51 of the Licensing Act 2003 (Appendix 1)

Applicant Name and Address	Chief Superintendent Morgan Hampshire Constabulary Police Station High Street Newport Isle of Wight PO30 1SZ
Premises Being Reviewed	Bar Bluu 17 St James Street Newport Isle of Wight PO30 5HB
Licence Holder	Coralshade Limited Fleet Court New Fields Stinsford Road Poole Dorset BH17 0NF

Section 51 has been complied with in terms of service of the application and notification to other responsible authorities. Notices containing all relevant information have been displayed for the required 28 day period at Bar Bluu, the offices of the Council at Jubilee Stores, The Quay, Newport, Isle of Wight and on the Council’s website.

The Police state the following as grounds for review:

The Prevention of Crime & Disorder

· The police state that Mr Woodward the DPS has operated the premises otherwise than in accordance with the Premises Licence issued on 6/7/06, in respect of the condition at Annex 3 Condition 1 regarding CCTV.

· 29 incidents of crime and disorder have been logged by the police since the grant of the 24 hour licence. All incidents are have occurred at the premises or are related to the premises.

· It is the police view that there is a common theme amongst the incidents of disorder associated with alcohol.

· Many of the incidents involve an allegation of assault by door supervisors on persons being removed from the premises.

· They involve head and facial injuries.

· Other incidents involve reports of fights and of disorderly people being dealt with by police having come from the premises.

· Of the reports three allegations of assault are noteworthy; 3/9/06, 1/10/06, 15/10/06

· The incident on 15/10/06 concerns an eye injury which has resulted in loss of sight.

· Three other incidents are also highlighted; 16/12/06, 24/12/06 & 28/12/06

· These incidents illustrate continued breaches of the CCTV condition.

· In all three assault cases, police have requested CCTV footage from the DPS as part of the investigation. In the first none was produced, in the second two cases it was worthless.

· The police state that the attitude of the DPS has been obstructive and he has failed to co-operate fully in making CCTV evidence available.

· It is the opinion of the police that the premises constitute a public safety risk due to the frequency and severity of the assaults.

· The police have recommended the following determination:

The DPS is removed

The premises licence is revoked

· The police recommend the premises are closed with immediate effect.

· The police are also of the view that due to Mr Woodward’s serious failures he should not be the DPS at any other venue, particularly a late night venue.

Prevention of Public Nuisance

· None

Public Safety

· The police state that Bar Bluu constitutes a public safety risk due to the frequency and severity of assaults that occur at the premises.

Protection of Children from Harm

· None

The police have supplied statements & reports from twelve police officers, copies of these can be found in the Appendices of this report.

The police state that the DPS is unfit to run these premises in compliance with the licensing objectives. They are of the view that due to Mr Woodward’s serious failures he should not be the DPS at any other venue, particularly a late night venue.

The police therefore recommend that the designated premises supervisor (DPS) is removed and the licence is revoked.

4. LOCATION AND SITE CHARACTERISTICS

Bar Bluu is a bar/restaurant situated in Lower St James Street in central Newport. The premise is adjacent to Club Temptation and is set over two floors with the bar situated on the ground floor and the restaurant on the first floor. Entrance to the premises is to the front of the building across a small patio area.

5. REPRESENTATIONS THAT ARE RELEVANT TO ONE OR MORE OF THE LICENSING OBJECTIVES

Responsible Authorities
Police	Application for review (Appendix 1)
Environmental Health Officer	No representations
Fire Safety Officer	No representations
Planning Officer	No representations
Trading Standards Officer	No representations
Health & Safety	No representations
Children’s Services	No representations
Interested Parties	No representations

6. LOCAL POLICY CONSIDERATIONS

It is considered that the following paragraphs from the Council’s Licensing Authority’s Statement of Licensing Policy, 2004 to 2007 have a bearing upon the application.

Members’ attention in respect of this particular application is drawn to:

Clause 1	Licensing Objectives	All paragraphs
Clause 2	Introduction	All paragraphs
Clause 3	Integration of Strategies and Other Legislation	3.1 to 3.5 3.9, 3.10
Clause 4	Approach to Licensing Applications	4.1 to 4.3 4.5, 4.6
Clause 5	Cumulative Effect	N/A
Clause 6	Representation, Reviews and Appeals	All paragraphs
Clause 7	Enforcement	All paragraphs
Clause 8	Operating Schedules	8.1 to 8.2 8.3, 8.5 to 8.10

7. NATIONAL GUIDANCE

5.1 National guidance regarding control of areas outside the premises is as follows:

Paragraph 3.11

The conditions attached to various authorisations will be focused on matters which are within the control of individual licensees and others in possession of relevant authorisations. Accordingly, these matters will centre on the premises being used for licensable activities and the vicinity of those premises. Whether or not incidents can be regarded as being “in the vicinity” of licensed premises is a question of fact and will depend on the particular circumstances of the case.

In addressing this matter, the licensing authority will primarily focus on the direct impact of the activities taking place at the licensed premises on members of public living, working or engaged in normal activity in the area concerned.

Licensing law is not the primary mechanism for the general control of nuisance and antisocial behaviour by individuals once they are away from the licensed premises and, therefore, beyond the direct control of the individual, club or business holding the licence, certificate or authorisation concerned. Nonetheless, it is a key aspect of such control and licensing law will always be part of a holistic approach to the management of the evening and night-time economy in town and city centres.

5.2 National guidance regarding reviews is as follows:

Paragraph 5.99

The proceedings set out in the 2003 Act for reviewing premises licences represent a key protection for the community where problems associated with crime and disorder, public safety, public nuisance or the protection of children from harm are occurring. It is the existence of these procedures which should, in general, allow licensing authorities to apply a light touch bureaucracy to the grant and variation of premises licences by providing a review mechanism when concerns relating to the licensing objectives arise later in respect of individual premises.

Paragraph 5.100

At any stage following the grant of a premises licence, a responsible authority or an interested party may ask the licensing authority to review the licence because of a matter arising at the premises in connection with any of the four licensing objectives.

Paragraph 5.102

In every case, the representation must relate to particular premises for which a premises licence is in existence and must be relevant to the promotion of the licensing objectives. Representations must be in writing and may be amplified at the subsequent hearing or may stand in their own right. Additional representations which do not amount to an amplification of the original representation may not be made at the hearing.

Paragraph 5.103

It is important to recognise that the promotion of the licensing objectives relies heavily on a partnership between licence holders, authorised persons, interested parties and responsible authorities in pursuit of common aims. It is therefore equally important that reviews are not used to drive a wedge between these groups in a way that would undermine the benefits of cooperation. It would therefore be good practice for authorised persons and responsible authorities to give licence holders early warning of their concerns about problems identified at the premises concerned and of the need for improvement. It is expected that a failure to respond to such warnings would lead to a decision to request a review.

Paragraph 5.105

Licensing authorities are expected to be aware of the need to prevent attempts to review licences merely as a second bite of the cherry following the failure of representations to persuade the licensing authority on earlier occasions. It is for licensing authorities themselves to judge what should be regarded as a reasonable interval in these circumstances. However, the Secretary of State recommends that more than one review originating from an interested party should not be permitted within a period of twelve months on similar grounds save in compelling circumstances or where it arises following a closure order.

Paragraph 5.106

Following receipt of a request for a review from a responsible authority or an interested party or in accordance with the closure procedures described in Part 8 of the 2003 Act, the licensing authority must arrange a hearing. The arrangements for the hearing must follow the provisions set out by the Secretary of State in regulations. The Secretary of State considers it particularly important that the premises licence holder is fully aware of the representations made in respect of the premises, any evidence supporting the representations and that he or his legal representatives has therefore been able to prepare a response.

5.3 National guidance regarding the powers of a licensing authority on the determination of a review is as follows:

Paragraph 5.108

The licensing authority may decide that no action is necessary if it finds that the review does not require it to take any steps necessary to promote the licensing objectives. In addition, there is nothing to prevent a licensing authority issuing an informal warning to the licence holder and/or to recommend improvement within a particular period of time. It is expected that licensing authorities will regard such warnings as an important mechanism for ensuring that the licensing objectives are effectively promoted and that warnings should be issued in writing to the holder of the licence. However, where responsible authorities like the police or environmental health officers have already issued warnings requiring improvement – either orally or in writing – that have failed as part of their own stepped approach to concerns, licensing authorities should not merely repeat that approach.

Paragraph 5.109

Where the licensing authority considers that action under its statutory powers is necessary, it may take any of the following steps:

1. to modify the conditions of the premises licence (which includes adding new conditions or any alteration or omission of an existing condition), for example, by reducing the hours of opening or by requiring door supervisors at particular times;

2. to exclude a licensable activity from the scope of the licence, for example, to exclude the performance of live music or playing of recorded music (where it is not within the incidental live and recorded music exemption);

3. to remove the designated premises supervisor, for example, because they consider that the problems are the result of poor management;

4. to suspend the licence for a period not exceeding three months;

5. to revoke the licence.

Paragraph 5.110

In deciding which of these powers to invoke, it is expected that licensing authorities should so far as possible seek to establish the cause or causes of the concerns which the representations identify. The remedial action taken should generally be directed at these causes and should always be no more than a necessary and proportionate response. For example, licensing authorities should be alive to the possibility that the removal and replacement of the designated premises supervisor may be sufficient to remedy a problem where the cause of the identified problem directly relates to poor management decisions made by that individual. Equally, it may emerge that poor management is a direct reflection of poor company practice or policy and the mere removal of the designated premises supervisor may be an inadequate response to the problems presented. Indeed, where subsequent review hearings are generated by representations, it should be rare merely to remove a succession of designated premises supervisors as this would be a clear indication of deeper problems which impact upon the licensing objectives.

Paragraph 5.111

Licensing authorities should also note that modifications of conditions and exclusions of licensable activities may be imposed either permanently or for a temporary period of up to three months. Accordingly temporary changes or suspension of the licence for up to three months may be imposed. This could impact on the business holding the licence financially and would only be expected to be pursued as a necessary means of promoting the licensing objectives. Accordingly, a licence could be suspended for a weekend as a means of deterring the holder from allowing the problems that gave rise to the review to happen again. However, it will always be important that any detrimental financial impact that may result from a licensing authority’s decision is necessary and proportionate to the promotion of the licensing objectives in the circumstances that gave rise to the application for a review.

5. National guidance regarding crime and disorder is as follows:

Paragraph 5.112

A number of reviews may arise in connection with crime that is not directly connected with licensable activities. For example, reviews may arise because of drugs problems at the premises or money laundering by criminal gangs or the sale of contraband or stolen goods there or the sale of firearms. Licensing authorities do not have the power to judge the criminality or otherwise of any issue. This is a matter for the courts of law. The role of the licensing authority when determining such a review is not therefore to establish the guilt or innocence of any individual but to ensure that the crime prevention objective is promoted. Reviews are part of the regulatory process introduced by the 2003 Act and they are not part of criminal law and procedure. Some reviews will arise after the conviction in the criminal courts of certain individuals but not all. In any case, it is for the licensing authority to determine whether the problems associated with the alleged crimes are taking place on the premises and affecting the promotion of the licensing objectives. Where a review follows a conviction, it would also not be for the licensing authority to attempt to go behind any finding of the courts, which should be treated as a matter of undisputed evidence before them.

Paragraph 5.113

Where the licensing authority is conducting a review on the ground that the premises have been used for criminal purposes, its role is solely to determine what steps are necessary to be taken in connection with the premises licence for the promotion of the crime prevention objective. It is important to recognise that certain criminal activity or associated problems may be taking place or have taken place despite the best efforts of the licensee and the staff working at the premises and despite full compliance with the conditions attached to the licence. In such circumstances, the licensing authority is still empowered to take any necessary steps to remedy the problems. The licensing authority’s duty is to take steps with a view to the promotion of the licensing objectives in the interests of the wider community ad not those of the individual holder of the premises licence.

Paragraph 5.114

As explained above, it is not the role of a licensing authority to determine the guilt or innocence of individuals charged with licensing or other offences committed on licensed premises. There is therefore no reason why representations giving rise to a review of a premises licence need be delayed pending the outcome of any criminal proceedings. As stated above, at the conclusion of a review, it will be for the licensing authority to determine on the basis of the application for the review and any relevant representations made, what action needs to be taken for the promotion of the licensing objectives in respect of the licence in question, regardless of any subsequent judgment in the courts about the behaviour of individuals.

Paragraph 5.115

There is certain criminal activity that may arise in connection with licensed premises, which the Secretary of State considers should be treated particularly seriously. These are the use of licensed premises:

· for the sale and distribution of Class A drugs and the laundering of the proceeds of drugs crime;

· for the sale and distribution of illegal firearms;

· for the evasion of copyright in respect of pirated or unlicensed films and music, which does considerable damage to the industries affected;

· for the purchase and consumption of alcohol by minors which impacts on the health, educational attainment, employment prospects and propensity for crime of young people;

· for prostitution or the sale of unlawful pornography;

· by organised groups of paedophiles to groom children;

· as the base for the organisation of criminal activity, particularly by gangs;

· for the organisation of racist activity or the promotion of racist attacks;

· for unlawful gaming and gambling; and

· for the sale of smuggled tobacco and alcohol

Paragraph 5.116

It is envisaged that licensing authorities, the police and other law enforcement agencies, which are responsible authorities, will use the review procedures effectively to deter such activities and crime. Where reviews arise and the licensing authority determines that the crime prevention objective is being undermined through the premises being used to further crimes, it is expected that revocation of the licence – even in the first instance – should be seriously considered. We would also encourage liaison with the local Crime and Disorder Reduction Partnership.

8. IMPLICATIONS UNDER THE HUMAN RIGHTS ACT 1998

Members are advised that this application must be considered against the background of the implications of the Human Rights Act 1998.

There are three convention rights, which need to be considered in this context:

(a) Article 6 Right to a Fair Trial –

In the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

It has been held that the fact that there is a right of appeal to the Magistrates’ Court from any decision of the Licensing Authority is sufficient to make the Council’s licensing system compliant with the convention rights.

(b) Article 8 Right to Respect for Private and Family Life –

Everyone has the right to respect for his private and family life, his home and his correspondence. In the case of article 8 there shall be no interference by a public authority with the exercise of this right except as such in accordance with the law and is necessary on a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder and crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

(c) Article 1 of the First Protocol Protection of Property –

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. In the case of Article 1 of the first protocol it states that “no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law. The preceding provisions (of which articles 6 and 8 are but two) shall not however in any way impair the right of the state to enforce such laws as it deems necessary to control the use of the property in accordance with general interest or to secure the payment of taxes or other contributions or penalties”.

A licence is viewed as a possession thus making Article 1 relevant in this case.

It has been held that the fact that there is a right of appeal to the Magistrates’ Court from any decision of the Licensing Authority is sufficient to make the Council’s licensing system compliant with the convention rights thus making Article 6 relevant in this case.

The Licensing Authority supports the establishment and implementation of a protocol agreed with Hampshire and Isle of Wight Police for the reduction of crime and disorder associated with any licensed activities.

9. OBSERVATIONS

The Licensing Sub-Committee is obliged to determine this application with a view to promoting the licensing objectives, which are:

· The prevention of crime and disorder

· Public safety

· The prevention of public nuisance

· The protection of children from harm

In making its decision, the Licensing Sub-Committee is also obliged to have regard to national guidance and the Council’s own Licensing Policy.

The Licensing Sub-Committee must also have regard to all of the representations made and the evidence it hears.

The Licensing Sub-Committee must take such of the following steps (if any) as it considers necessary for the promotion of the licensing objectives:

(i) To modify the conditions of the licence.

(ii) To exclude a licensable activity from the scope of the licence.

(iii) To remove the designated premises supervisor.

(iv) To suspend the licence for a period not exceeding three months.

(v) To revoke the licence.

The Licensing Sub-Committee is asked to note that it may not take the above steps merely because it considers it desirable to do so. It must actually be necessary in order to promote the licensing objectives.

8. APPENDICES ATTACHED

1	Application form to review premises licence
2	Summary of Police Representation
3.	Copy of Premises Licence for Bar Bluu
4.	Copy of letter sent to Mr Woodward confirming that CCTV system satisfactory
5.	Report from DC 1433 Harrison-Smith
6.	Statement of PC 20222 Cunliffe
7.	Statement of PC 22452 Ross
8.	Statement of DC 1883 Hatch
9.	Statement of PC 3768 McDonald
10.	Statement of PC 24318 Frost
11.	Report from PC 20481 Hinkley
12.	Report from PCSO Allen
13.	Statement from DC3287 Robertson
14.	Statement from PC 374 Cleightonhills
15.	Statement from PC 24493 Fairweather
16.	Letter from Inspector 7395 Evans to Mr Woodward re CCTV dated 17/1/07
17.	Letter from Inspector 7395 Evans to Mr Woodward re CCTV dated 18/1/07
18.	Report from Inspector 7395 Evans dated 3/11/06
19.	Report from Inspector 7395 Evans dated 23/1/07
20.	Copy of response to Insp 7395 Evans from Mr Woodward re letter of 17/1/07
21.	Copy of response to Insp 7395 Evans from Mr Woodward re letter of 18/1/07
22.	Typed transcript of Mr Woodward’s response to Insp 7395 Evans’ letter of 17/1/07
23.	Typed transcript of Mr Woodward’s response to Insp 7395 Evans’ letter of 18/1/07

9. BACKGROUND PAPERS

1. Minutes of the Licensing Sub-Committee held in Committee Room 1, County Hall, Newport on Thursday 6 July 2006 commencing at 09:50hrs.

2. Application for the variation of a premises licence in respect of Bar Bluu 17/5/06

3. Hampshire Constabulary and Isle of Wight Council Licensing Authority Joint Licensing Protocol.

4. Isle of Wight Council Statement of Licensing Policy 2004-2007

10. ADDITIONAL INFORMATION

The CCTV system at Bar Bluu has been replaced following joint inspections from the Licensing Officer, Local Authority CCTV Manager and the Police. The system is now operating to the satisfaction of the Local Licensing Authority as per condition 1 of Annex 3 of the existing premises licence. A copy of the letter that was sent to Mr Woodward on 30 November 2006 to confirm this is attached at Appendix 4.

The Premises Licence (Appendix 3 ) shows:

Designated Premises Supervisor

Mr Andrew Philip Woodward

	Provision of Regulated Entertainment	Hours of Licensable Activities
(a)	Plays	N/A
(b)	Films	N/A
(c)	Indoor Sporting Events	N/A
(d)	Boxing or Wrestling	N/A
(e)	Live Music	Each day 00:01hrs until 23:59hrs
(f)	Recorded music	Each day 00:01hrs until 23:59hrs
(g)	Performances of Dance	Each day 00:01hrs until 23:59hrs
	Provision of Entertainment Facilities
(i)	Making music	Each day 00:01hrs until 23:59hrs
(j)	Dancing	Each day 00:01hrs until 23:59hrs
	Late Night Refreshment	Each day 23:00 hrs until 05:00hrs
	Supply of Alcohol	Each day 00:01hrs until 23:59hrs
	Other Times Premises Proposed To Be Open To The Public	Each day 00:01hrs until 23:59hrs

Conditions of the Existing Premises Licence

The Prevention of Crime & Disorder

1. On occasions when the risk assessment identifies the need for one or more individuals to be present at the premises to carry out a security activity, such individuals will be licensed by the Security Industry Authority.

2. No licensable activity shall be permitted unless a CCTV system has been installed and is operating to the written satisfaction of the Local Licensing Authority, such CCTV shall be maintained. Copies of the recorded images and/or tapes shall be immediately available to the police and licensing authority with 24 hours notice. Recordings shall be kept for a minimum of 30 days.

Public Safety

3. Risk assessments to be maintained in relation to slips, trips, falls and electrical safety.

4. Premises to continue to use air conditioning.

The Prevention of Public Nuisance

5. Premises to continue to use noise limiter.

6. No hot food to be provided after 23:00 hours.

The Protection of Children From Harm

7. Photographic identification to be requested from anyone who appears to be under 18 years of age.

Contact Point:

Andrea Colebrook Licensing Officer Gareth Davies PEHP (Consultation & Licensing)

Ext 5154 [email protected] Ext 6169 [email protected]

ROB OWEN

Head of Consumer Protection