1.
DETAILS
OF THE APPLICATION
|
Applicant |
Mr John Blacklock |
|
Premises |
Club K 9 Bowling Green Lane Newport Isle of Wight PO30 1RR |
|
Application
for a Premises Licence |
This
application is for a Premises Licence under Section 17 of the Licensing Act
2003. (Appendix 1) |
The
Operating Schedule shows:
|
Designated Premises
Supervisor |
Miss
Toni Marie Smith |
|
|
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 |
Monday-Sunday
1000-0300 |
|
(f) |
Recorded
music |
Monday-Sunday
1000-0300 |
|
(g) |
Performances
of Dance |
N/A |
|
(h) |
Anything
similar to (e) (f) (g) above |
Monday-Sunday
1000-0300 |
|
|
|
|
|
|
Provision of Entertainment
Facilities |
|
|
(i) |
making
music |
Monday-Sunday
1000-0300 |
|
(j) |
dancing |
Monday-Sunday
1000-0300 |
|
(k) |
entertainment
similar to (i) & (j) above |
Monday-Sunday
1000-0300 |
|
|
|
|
|
|
Late Night Refreshment |
Monday-Sunday
2300-0300 |
|
|
|
|
|
|
Supply of Alcohol |
Monday-Sunday
1000-0300 |
|
|
|
|
|
|
Other Times Premises
Proposed To Be Open To The Public |
Monday-Sunday
1000-0400 |
Steps
to promote the licensing objectives
|
The Prevention of Crime
& Disorder |
|
The
area of crime and disorder is a major consideration in the operation of night
club type premises. Invariably the
premises employ a company to provide security by duly trained and licensed
staff. The requirement for such staff
and their numbers are dictated by the risk assessment and vary according to
the type of entertainment and the anticipated attendance. The premises also have an effective CCTV
system installed. |
|
|
|
Public Safety |
|
In
addition to the security and CCTV outlined above which also has relevance to
public safety, the areas of slips, trips and falls are also covered by the
risk assessment. There is no car
parking at the premises. There is no
likelihood of firework displays being held at the premises. |
|
|
|
The Prevention of Public
Nuisance |
|
The
premises are located in a small commercial area of Newport with few people
living in the area. The premises
operate a sound limiter on the sound equipment which has prevented any noise
nuisance issues in the past and it is unlikely to cause an issue in the
future. The premises offered hot food
until 0200 and this has not given rise to any public nuisance issue and is
unlikely to do so in the future. |
|
|
|
The Protection of Children
From Harm |
|
The
applicant in consultation with the police propose the following conditions:
(b) Where such an event is held in the main dance
floor area of the premises, this will not preclude area known as ‘the lane’
being used as a bar for 18 year olds plus persons provided, there is
positively no access permitted or allowed on payment or otherwise between the
two areas either by means of the internal door or by exiting and re-entering
the premises by a different route.
Staff are excepted. (c) The internal door in this case to be locked to
ensure there is no internal traffic. (d) Furthermore, if the premises are to be used as
above, persons using ‘the lane’ will not be admitted to the event which is
(organised for students or young persons) being held in the main dance floor
area of the building. (e) The two areas must be operated independently
so that there is no likelihood of persons under 18 buying, being supplied
with, or consuming alcohol. (f) On occasions when the premises are used in the
manner at (b) above, a door supervisor will be employed at the door of ‘the
lane’ to ensure no persons under 18 are admitted to that part of the
premises. (g) Note: student and young person events can be
held in the main area for a mix of ages (some over and some under 18), but
alcohol must still not be sold or supplied to those 18 or over in these
circumstances. See 4(a). 5. No customers in
possession of open or sealed containers shall be admitted to the premises at any time. 6. Door supervisors are
required to search persons on entry and exit with regard to the above and
possession of controlled drugs. 7. No entry or re-entry
after 01.30 hours. 8. All conditions
previously appended to the Public Entertainment Licence are carried over to
the premises licence. 9. DPS to be on the
premises when open for the sale of alcohol, unless absence is unavoidable, or
due to holiday. |
2. LOCATION AND SITE CHARACTERISTICS
|
Club K is a night club
comprising of bar areas on the ground and first floor. A plan of the premises is attached as
Appendix 2. The premises is located in
Bowling Green Lane to the rear of the old bus station site in Newport town
centre. A map is attached as Appendix
3. |
3. RELEVANT REPRESENTATIONS
|
Responsible
Authorities |
|
|
|
|
|
Police (Appendix 4) Sgt Graeme Mudge Cowes Police Station Birmingham Road Cowes Isle of Wight PO31 7BH |
Recommendation: that Premises Licence
should not be granted. Sgt
Mudge states that the Police representation relates to all four licensing
objectives and in addition to this an objection to Miss Toni Marie Smith
becoming the DPS for the premises. The
police state there is a history of problems connected with the premises,
coupled with the legal argument surrounding the application(s) and the fact
that the premises have opened despite police and Local Authority advice and
against Counter Notices to Temporary Event Notices, it is their
recommendation that the application should not be granted. The
police state that the premise is poorly run and that in her present capacity
as manager Miss Smith must take some responsibility for this. Miss Smith was also the named applicant on
two Temporary Event Notice applications that were refused by the licensing
sub committee on 20 December 2005.
Despite Counter Notices having been served at the premises and at Miss
Smith’s home address, the premises opened on both occasions. |
|
|
|
|
Environmental Health Officer |
No outstanding representations |
|
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|
Fire Safety Officer |
No outstanding representations |
|
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|
Planning Officer |
No outstanding representations |
|
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|
Trading Standards Officer |
No outstanding representations |
|
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|
Health & Safety |
No outstanding representations |
|
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|
Children’s Services |
No outstanding representations |
|
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|
Interested
Parties |
No outstanding representations |
|
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|
4. LOCAL POLICY CONSIDERATIONS
It is considered that the following policies 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 |
|
Clause
2 |
Introduction |
2.1 |
|
Clause
3 |
Integration of Strategies and Other
Legislation |
3.1, 3.2, 3.4, 3.5, 3.11 |
|
Clause
4 |
Approach to Licensing Applications |
All |
|
Clause
5 |
Cumulative Effect |
N/A |
|
Clause
6 |
Representation, Reviews and Appeals |
6.6 - 6.8 |
|
Clause
7 |
Enforcement |
N/A |
|
Clause
8 |
Operating Schedules |
All |
5. NATIONAL GUIDANCE
National guidance regarding control of areas outside the premises is as
follows:
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.
National guidance regarding
licensing hours is as follows:
3.29 With regard to licensing hours consideration, which will be given
to the individual merits of an application.
The Government strongly recommends that Licensing Authorities should
recognise that longer licensing hours with regard to the sale of alcohol are
important to ensure that the concentrations of customers leaving premises
simultaneously are avoided. This is
necessary to reduce the friction at late night fast food outlets, taxi ranks and
other sources of transport, which lead to disorder and disturbance. The Government also wants to ensure that
licensing hours should not inhibit the development of thriving and safe evening
and night-time local economies which are important for investment and
employment locally and attractive to domestic and international tourists
without compromising the ability to resource local services associated with the
night-time economy. Providing consumers
with greater choice and flexibility is an important consideration.
National guidance regarding
non-duplication of other regimes is as follows:
3.51 Planning, building control and licensing regimes will be properly
separated, to avoid duplication and inefficiency. Applications for premises licences for permanent commercial
premises should normally be from businesses with planning consent for the
property concerned. Licensing applications should not be a re-run of the
planning application and should not cut across decisions taken by the local
authority planning committee or following appeals against decisions taken by
that committee. Similarly, the granting
by the licensing committee of any variation of a licence which involves a
material alteration to a building would not relieve the applicant of the need
to apply for planning permission or building control where appropriate.
3.53 There should be a firm commitment to avoid duplication with other
regulatory regimes so far as possible. Conditions in respect of public safety
should only be attached to premises licences and club premises certificates
that are “necessary” for the promotion of that licensing objective and if
already provided for in other legislations, they cannot be considered necessary
in the context of licensing law. Such
regulations will not however always cover the unique circumstances that arise
in connection with licensable activities, particularly regulated entertainment,
at specific premises and tailored conditions may be necessary.
6. 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 or of any criminal charge
against him, 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.
The Licensing Authority acknowledges the right of business in its area
to operate, but equally acknowledges the fact that this must be balanced
against the rights of residents not to be disturbed by unreasonable noise and
nuisance caused by licensed premises.
The Licensing Authority needs to be clear as to the rights granted and
the need to ensure that the reasons given for any interference are
proportionate and in accordance with the Council’s legitimate aim.
ARTICLE 6 is
particularly relevant in this case as it has been held that the fact there is a
right of appeal to the magistrate’s court from any decision of the Licensing
Sub Committee is sufficient to make the Council’s licensing system compliant
with the convention rights.
7.
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.
Of course, 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 as it considers necessary for the promotion of the licensing
objectives:
i.
Grant
the application as asked.
ii.
Modify
the conditions of the licence by altering or omitting or adding to them.
iii.
Reject
the whole or part of the application.
The Licensing Sub Committee is asked to note that it
may not modify the conditions or reject the whole or part of the application
merely because it considers it desirable to do so. It must actually be necessary in order to promote the licensing
objectives.
As to the objections raised:
Demand: This is clearly not a matter
for a Licensing Authority as advised by paragraph 3.12 of national guidance.
Character/property values: These
are matters for planning. They do not
raise issues relevant to the licensing objectives.
The Prevention
of Crime & Disorder
|
The police have raised concerns in relation to
this objective and provide a list of events that have occurred in or near the
premises in the last 12 months. They
state the premises are a continual source of problems and that throughout
2005 an incident occurred every month with eight reported incidents in
May. The police state there would
appear to be a lack of control within the premises which may be the cause of
many problems. |
Prevention of
Public Nuisance
|
The
police have raised concerns in relation to this objective and provide a list
of incidents including disorder and fights that have occurred in and around
the premises over the past 12 months. |
Public Safety
|
The
police are concerned for public safety due to the premises currently
operating without a premises licence.
Concerns are also raised within the report in relation to the risk to
young people being the subject of assaults due to frequent fights within the
premises. |
Protection of
Children from Harm
|
The
police have raised concerns in relation to this objective and state that over
the last 2 years the premises have been identified as a place where it is
easy for young people under 18 years of age to purchase alcohol. The
police report states that door persons employed at the premises have in the
past withdrawn their services because Mr Blacklock has undermined their
authority and let underage persons into the club. 18th
Birthday parties have been held at the premises and the police consider the
arrangements for the non sale of alcohol to under 18’s to be totally
inadequate. This has resulted in
under 18’s being drunk. The
police list of incidents over the past 12 months also includes instances of
possession and use of drugs. The
police are therefore of the opinion that no conditions that could be imposed
would be successful in achieving the licensing objective of the protection of
children from harm. |
Members are required to make a decision on the basis
of the information within this report and any other relevant information
produced at the hearing from interested parties or responsible authorities or
the applicant.
8. APPENDICES ATTACHED
|
1 |
Application form |
|
2 |
Plan of the premises |
|
3 |
Map showing location of premises |
|
4 |
Police representation and report |
9. ADDITIONAL INFORMATION
|
This
application for a Premises Licence is the third application made by Mr
Blacklock. There
is currently an ongoing legal argument as to whether the original application
to convert and simultaneously vary a premises licence, (in accordance with
the transitional arrangements) should have been granted, despite the fact
that the cheque that accompanied this application was returned from Revenue Services. Once returned Mr Blacklock was given three
further opportunities to pay the fee over a period of seven working
days. No payment was received during
this time. Under
paragraph 2 Schedule 8 Licensing Act 2003 an application to convert an
existing licence must be in the specified form and must be accompanied by the
relevant documents and the specified fee otherwise it will be rejected. The
original application for a premises licence was rejected by the Local
Authority on these grounds on 12 September 2005, no appeal against this
decision was made. By
rejecting this application it is the view of the Licensing Section, after
having sought legal advice that no premises licence is currently in existence
and by missing the 6 August 2005 deadline for the conversion of existing
licences, all additional authorisations i.e. Public Entertainment Licence and
the Special Hours Certificate, would have expired on or before 24 November
2005. Mr
Blacklock’s Public Entertainment Licence did lapse and cease to have effect
from 11 October 2005 along with the Special Hours Certificate. This was automatically revoked under S.81
of the Licensing Act 1964 and was due to a second cheque for the renewal of
the Public Entertainment Licence being returned from the Revenue Services
Section of the Isle of Wight Council.
Again it is the Licensing Section’s view that all automatic rights of
conversion in relation to these two authorisations were lost when the first
application for a premises licence was rejected. A
second application for a Premises Licence was submitted on 25 October
2005. This application was withdrawn
by the applicant’s agent Mr Brian Oxford on 25 November 2005 after a meeting
at Jubilee Stores. At the meeting the
applicant was advised by his solicitor that in his opinion the original
application was valid and that the application should be treated as granted
under Paragraph 4(4) Schedule 8 Licensing Act 2003. Mr Blacklock was advised at this time that this was not the
opinion of the Licensing Section or the Police. This
application for a Premises Licence was submitted on 21 December 2005. On
9 December 2005 two applications for Temporary Event Notices (TEN) made in
the name of Miss Toni Marie Smith were received by the Licensing
Authority. The dates applied for in
these notices were 24-26 December 2005 and the 31 December 2005. On the same day PS Mudge objected to the
applications on the grounds of the prevention of crime and disorder and a
meeting of the Licensing Sub Committee was convened. On 20 December 2005 both applications were
refused. Club K opened on the 24
& 25 December and on the 31 December 2005 despite the TEN applications
having been refused and counter notices having been served both at Miss
Smith’s home address and at the premises.
Since
the 24 November 2005 the premises have been visited on six occasions by the
Police and Licensing Officers. On
each occasion licensable activities were taking place. On
22 December 2005 a Section 19 Closure Notice under the Criminal Justice and
Police Act 2001 was served on Mr Blacklock.
This procedure exists whereby the Local Authority or Police can serve
a closure notice on a premises operator, where unlicensed sale of alcohol is
seen to take place. This procedure
has been commenced with service of the notice on the 22 December 2005. A summons was subsequently issued by the
Court following a Police complaint on 30 December 2005 and the summons was
served by PS Voller on Mr Blacklock at the club premises on the 31 December
2005. The matter was adjourned at the
Isle of Wight Magistrates Court on 27 January for hearing on 6 April 2006. On
14 January 2006 a Police Operation was carried out at the premises, alcohol
and sound equipment was seized as evidence of offences and as a result PS
Mudge has reported both Mr Blacklock and Miss Smith for summons for offences
under S136 (Unauthorised licensable activities), S137 (Exposing alcohol for
unauthorised sale) and S138 (Keeping alcohol on premises for unauthorised
sale). Throughout
this period Mr Blacklock has maintained that he has acted on the advice of
his solicitor. |
Contact
Point:
|
Andrea
Colebrook |
Ext
5154 |
ROB
OWEN
Head of Consumer Protection
