PAPER B
Purpose: For Decision
Committee: LICENSING SUB-COMMITTEE
Date: 15 JANUARY 2007
Title: APPLICATION
FOR THE REVIEW OF A PREMISES LICENCE FOR FLANAGANS, 7 PIER STREET WIGHT , PO36
8JR
REPORT OF THE HEAD OF
CONSUMER PROTECTION
1.
SUMMARY/PURPOSE
For the Licensing Sub-Committee to determine an
application made under section 51 of the Licensing Act 2003, to review a
premises licence.
2.
BACKGROUND
a) The mechanism to review a premises licence granted
under the Licensing Act 2003 exists to protect the community where problems
associated with crime and disorder, public safety, public nuisance or the
protection of children from harm (the licensing objectives) are allegedly
occurring at a premise.
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.
1.
DETAILS OF THE APPLICATION
|
Applicant Name and Address |
Environmental Health
Department Jubilee Stores The Quay PO30 2EH |
|
Premises Being Reviewed |
Flanagan’s Sandown PO36 8JR |
|
Licence Holder |
Punch Taverns Plc |
|
Application |
This application is for a review of a Premises
Licence under Section 51 of the Licensing Act 2003. |
The Operating Schedule shows:
|
Designated Premises Supervisor |
Carl Roger Bontoft |
|
|
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 |
Mon to Wed 11:00hrs
until 23:00hrs Thu to Sat Sunday 11:00hrs
until 22:30hrs |
|
(f) |
Recorded music |
Mon to Wed 11:00hrs
until 23:00hrs Thu to Sat Sunday 11:00hrs
until 22:30hrs |
|
(g) |
Performances of Dance |
N/A |
|
(h) |
Anything similar to (e) (f) (g) above |
N/A |
|
|
|
|
|
|
Provision
of Entertainment Facilities |
|
|
|
|
|
|
(i) |
making music |
Mon to Wed 11:00hrs
until 23:00hrs Thu to Sat Sunday 11:00hrs
until 22:30hrs |
|
(j) |
dancing |
Mon to Wed 11:00hrs
until 23:00hrs Thu to Sat Sunday 11:00hrs
until 22:30hrs |
|
(k) |
entertainment similar to (i) & (j) above |
Mon to Wed 11:00hrs
until 23:00hrs Thu to Sat Sunday 11:00hrs
until 22:30hrs |
|
|
|
|
|
|
Late
Night Refreshment |
N/A |
|
|
|
|
|
|
Supply
of Alcohol |
Mon to Wed 11:00hrs
until 23:00hrs Thu to Sat Sunday 11:00hrs
until 22:30hrs |
|
|
|
|
|
|
Other
Times Premises Proposed To Be Open To The Public |
Mon to Wed 11:00hrs
until 23:30hrs Thu to Sat Sunday 11:00hrs
until 23:00hrs |
|
|
|
|
|
|
Non
Standard Timings |
Every Friday, Saturday,
Sunday and Monday for each May Bank Holiday, Spring/Whitsun Bank Thursday Friday, Saturday,
Sunday and Monday on Easter Bank Holiday Weekend to extend the finish time
until Christmas Eve to extend the
finish time by a further additional 2 hours for all activities. Boxing Day to extend the
finish time by a further additional 1 hours for all activities New Years Eve shall be from
the normal commencement of hours continuously through to the start of
permitted hours on New Years Day. |
Conditions of the Existing Premises Licence
|
The
Prevention of Crime & Disorder |
|
1.
Burglar alarm
system to be retained and windows and doors to be alarmed. |
|
|
|
Public Safety |
|
|
|
2.
Toilets shall
be checked regularly 3.
The
licensees/staff to monitor customer behaviour especially during busy periods. 4.
A minimum of
two staff to be on duty at any one time. 5.
Driver’s shelf
must be provided with selection of soft drinks. 6.
There shall be
no smoking at the bar or in eating areas 7.
A pest control
contract shall remain in place 8.
All staff shall
hold Basic Food Hygiene Certificates 9.
The pub must
have a person trained in first aid and first aid facilities. 10.
The pub must
retain the promotion of a licensed taxi service to facilitate its customers
making onward journeys. 11.
Accident/incident
book must be provided site for staff and public. 12.
Staff must be
trained in disability policy and assistance must always be available. 13.
When required, staff
may organise taxis to transport customers home and customers are to be seen
off the premises and encouraged to disperse after closing. |
|
|
|
The
Prevention of Public Nuisance |
|
|
|
14.
During the performance
of live or recoded music all windows and doors are to remain close. Internal
ventilation shall be provided by suitable and sufficient means. 15.
Signs shall be
displayed at the premises requesting customers to leave quietly 16.
No
entertainment including live and recorded music and dance shall be permitted
outside the premises with the exception of: Sandown Regatta and Sandown Carnival. On these occasions
entertainment including live and recorded music and dance shall cease at
23:00hrs. Additional regulated entertainment is restricted to 3 occasions in
any 12 month period. 17.
A copy of all
public nuisance complaints received shall be recorded in a log book
containing the time of complaint, date, complainants name and address (where
provided) along with the action taken by the responsible person to deal with
the complaint including the date and time of the actions completion. The log
book shall at all times be available for inspection by an authorised officer
of the local Licensing Authority an in any event within 24 hours of a
request. 18.
A noise survey
must be carried out regularly especially when entertainment is being
provided. 19.
An electronic
sound limiter shall be installed and maintained at the premises to control
the level of noise breakout during the performance of all live and recorded
music and shall be set at a level agreed with the Licensing Authority. 20.
An electronic
sound limiting device will be used during ALL live and recorded entertainment
from 22:00hrs on all days. |
|
|
|
The Protection of
Children From Harm |
|
|
|
21.
Unaccompanied
children shall not be permitted on the premises. 22.
Children shall
only be allowed in no-smoking areas 23.
AWP must be
situated in sight of the bar counter. 24.
The AWP and cigarette
machine must remain in close proximity to the bar counter and therefore
easily observed. 25.
Pub must retain
a children’s menu and suitable soft drinks to promote family atmosphere. |
2.
LOCATION
AND SITE CHARACTERISTICS
|
Flanagan’s
is a bar and restaurant situated on an approach road to the seafront at
Sandown. The building is situated within an area that consists of hotels,
restaurants and residential flats above and to the side. To the seaward side
of the premises there is an outside drinking area with tables and chairs for
customers to use. Entry to the building can be gained from the road. Access
to the patio area can be gained by way of two doors from the lower end of the
bar. The bar area is open plan with seating and tables for customers and a
small bar and kitchen. |
3.
REPRESENTATIONS
THAT ARE RELEVANT TO ONE OR MORE OF THE LICENSING OBJECTIVES
|
Responsible Authorities |
|
|
|
|
|
Police |
No
representations |
|
|
|
|
Environmental
Health Officer |
|
|
|
|
|
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 |
|
|
|
|
|
Miss Heather
Humby |
Representations
made by Miss Humby who states she: 1. Has
been experiencing noise from musical entertainment from Flanagan’s during the
weekend which she describes as disruptive especially when entertaining
friends. 2. Has
approached the licensee on numerous occasions in order to reduce the noise
levels but the nuisance has still continued. 3. Does
not wish to stop the entertainment but asks for the premises to be adequately
soundproofed. (Appendix 2) |
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 to 3.11 |
|
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 8.13 to 8.19 |
4.
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 5.100
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.
5.4 National
guidance regarding public nuisance is as follows:
Paragraph
7.39:
The
2003 Act requires licensing authorities following receipt of relevant
representations and, through the making of representations, responsible
authorities to make judgements about what constitutes public nuisance and what
is necessary, in terms of conditions attached to specific premises licences and
club premises certificates to prevent it. It is therefore important that in
considering the promotion of this licensing objective, licensing authorities
and responsible authorities focus on impacts of the licensable activities at
the specific premises on persons living and working (including doing business)
in the vicinity that are disproportionate and unreasonable. The issues will
mainly concern noise nuisance, light pollution, noxious smells and litter.
Paragraph
7.40:
Public
nuisance is given a statutory meaning in many pieces of legislation. It is
however not narrowly defined in the 2003 Act and retains its broad common law meaning
for the Act’s purposes. The prevention of public nuisance could therefore
include low-level nuisance perhaps affecting a few people living locally as
well as major disturbance affecting the whole community. It may also include in
appropriate circumstances the reduction of the living and working amenity and
environment of interested parties (as defined in the 2003 Act) in the vicinity
of licensed premises.
Paragraph
7.41:
Conditions
relating to noise nuisance will normally concern steps necessary to control the
levels of noise emanating from premises, from simple mechanisms like ensuring
that doors and windows are kept closed after a particular time in the evening
to more sophisticated mechanisms like sound level inhibitors on amplification
equipment or sound proofing. Any conditions necessary to promote the prevention
of public nuisance should be tailored to the style and characteristics of
premises and the type of activities expected to take place there.
Paragraph
7.42:
As
with all conditions, it will be clear that conditions relating to noise
nuisance may in certain circumstances not be necessary where the provisions of
the Environmental Protection Act 1990 and of the Noise Act 1996 adequately
protect those living in the vicinity of the premises in question. But as stated
earlier in this Guidance, the approach of licensing authorities and responsible
authorities should be one of prevention and when their powers are engaged,
licensing authorities should be aware of the fact that other legislation may
not adequately cover concerns raised in relevant representations and additional
conditions may be necessary.
Paragraph
7.43:
Where applications have given rise to representations, any necessary and appropriate conditions should normally focus on the most sensitive periods. For example, music noise from premises usually occurs from mid-evening until either late evening or early morning when residents in adjacent properties may be attempting to go to sleep or are sleeping. In certain circumstances, conditions relating to noise may also prove necessary to address any disturbance anticipated as customers enter and leave the premises and therefore, in the immediate vicinity of the premises.
5.
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.
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 must ensure that the reasons given for any interference with these
rights are necessary and proportionate and in accordance with the Council’s
legitimate aim, in this instance promoting the licensing objectives.
6.
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.
Under the headings of the 4 licensing objectives,
the Environmental Health Department have made the following representations in
their application for review:
The
Prevention of Crime & Disorder
|
·
None |
Prevention
of Public Nuisance
|
·
Since August 2005 numerous complaints have
been received relating to loud music affecting the flat above Flanagan’s. ·
The noise limiter in Flanagan’s has been
set by Environmental Health Officers ·
Since the noise limiter settings were
applied a further 19 complaints have been received from Miss Humby. ·
Officers have attended on 5 occasions and
have not deemed the music to be at an unreasonable level. ·
It appears that the noise limiter has
proved unsuccessful in the prevention of public nuisance. ·
Recommendation that an acoustic report is
undertaken and recommendations implemented by Flanagan’s. |
Public
Safety
|
·
None |
Protection
of Children From Harm
|
·
None |
8. APPENDICES ATTACHED
|
1 |
Application form to
review premises licence |
|
2 |
Representation from
interested party (Miss Humby) |
|
3. |
Letters of Support of
Flanagan’s |
|
4. |
Petition |
|
5. |
Letters in support of
Miss Humby |
|
6. |
|
|
7. |
Complaints Log |
9. BACKGROUND PAPERS
|
1. Minutes
of the Licensing Sub-Committee held in Committee Room 1, County Hall, 2. Application
for a premises licence in respect Flanagan’s. 3. Associated
correspondence in respect of 2 above. |
10. ADDITIONAL INFORMATION
|
1. Letters in support
of Flanagan’s have been received (Appendix 3). 2. A petition in
support of Flanagan’s has been received (Appendix 4) 3. The complaints log
relating to condition 23 of the premises licence has been received from Mr
Bontoft (Appendix 7) 4. 8 letters in
support of Miss Humby have been received (Appendix 5) |
Contact Point:
|
David Curtis-Botting Licensing Officer |
Ext 5155 |
ROB
OWEN
Head
of Consumer Protection