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Application
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This application is for a review of a Premises
Licence under Section 51 of the Licensing Act 2003.
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The Operating Schedule shows:
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Designated Premises Supervisor
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Mr Andrew Philip Woodward
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Provision
of Regulated Entertainment
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Hours
of Licensable Activities
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(a)
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Plays
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N/A
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(b)
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Films
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N/A
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(c)
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Indoor Sporting Events
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N/A
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(d)
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Boxing or Wrestling
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N/A
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(e)
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Live Music
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Each day 00:01
hrs until 23:59 hrs
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(f)
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Recorded music
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Each day 00:01
hrs until 23:59 hrs
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(g)
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Performances of Dance
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Each day 00:01
hrs until 23:59 hrs
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Provision
of Entertainment Facilities
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(i)
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Making music
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Each day 00:01
hrs until 23:59 hrs
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(j)
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Dancing
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Each day 00:01
hrs until 23:59 hrs
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Late
Night Refreshment
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Each day 23:00
hrs until 05:00 hrs
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Supply
of Alcohol
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Each day 00:01
hrs until 23:59 hrs
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Other
Times Premises Proposed To Be Open To The Public
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Each day 00:01
hrs until 23:59 hrs
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Conditions of the Existing Premises Licence
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The
Prevention of Crime & Disorder
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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
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Public
Safety
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3.
Risk
assessments to be maintained in relation to slips, trips, falls and
electrical safety.
4.
Premises to
continue to use air conditioning.
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The
Prevention of Public Nuisance
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5.
Premises to continue
to use noise limiter.
6.
No hot food to
be provided after 23:00
hours.
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The
Protection of Children From Harm
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7.
Photographic identification to be
requested from anyone who appears to be under 18 years of age.
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4.
LOCATION
AND SITE CHARACTERISTICS
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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.
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5.
REPRESENTATIONS
THAT ARE RELEVANT TO ONE OR MORE OF THE LICENSING OBJECTIVES
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Responsible
Authorities
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Police
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Application for
review (Appendix 1)
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Environmental
Health Officer
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No
representations
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Fire Safety
Officer
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No
representations
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Planning Officer
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No
representations
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Trading
Standards Officer
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No
representations
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Health &
Safety
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No
representations
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Children’s
Services
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No
representations
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Interested Parties
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No
representations
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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:
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Clause 1
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Licensing
Objectives
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All paragraphs
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Clause 2
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Introduction
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All paragraphs
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Clause 3
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Integration of
Strategies and Other Legislation
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3.1 to 3.5, 3.9,
3.10
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Clause 4
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Approach to
Licensing Applications
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4.1 to 4.3, 4.5,
4.6
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Clause 5
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Cumulative
Effect
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N/A
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Clause 6
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Representation,
Reviews and Appeals
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All paragraphs
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Clause 7
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Enforcement
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All paragraphs
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Clause 8
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Operating
Schedules
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8.1 to 8.2, 8.3,
8.5 to 8.10
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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
5.100 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 ozr 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.
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:
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The prevention of crime and disorder
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Public safety
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The prevention of public nuisance
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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, Hampshire
Constabulary have made the following representations in their application for
review:
The
Prevention of Crime & Disorder
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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 in
respect of CCTV.
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26 incidents have been logged by the
police since the grant of the 24 hour licence.
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It is the police view that there is a
common theme amongst the incidents of disorder associated with alcohol.
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Many of the incidents involve an allegation
of assault by door supervisors on persons being removed from the
premises.
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They involve head and facial injuries.
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Other incidents involve reports of fights
and of disorderly people being dealt with by police having come from the
premises.
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Of the reports three allegations of
assault are noteworthy; 3/9/06,
1/10/06, 15/10/06
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The incident on 15/10/06 concerns an eye injury
which has resulted in loss of sight.
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Two other incidents are also highlighted; 16/12/06, 28/12/06
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These incidents illustrate continued
breaches of the CCTV condition.
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In all three assault cases, police have
requested CCTV from the DPS as part of the investigation. In the first none
was produced, in the second two cases it was worthless.
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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.
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It is the opinion of the police that the
premises constitute a public safety risk due to the frequency and severity of
the assaults.
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The police have recommended the following
determination:
The
DPS is removed
The
premises licence is revoked
Curtail
the hours of the premises to 02:00
hours
Clarification
of the CCTV licence condition to ensure that images are immediately available
to police without the 24 hours notice clause.
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Prevention
of Public Nuisance
Public
Safety
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The police state that Bar Bluu constitutes
a public safety risk due to the frequency and severity of assaults that occur
at the premises.
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Protection
of Children From Harm
8. APPENDICES ATTACHED
9. BACKGROUND PAPERS
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1.
Minutes of the Licensing
Sub-Committee held in Committee Room 1, County Hall, Newport on Thursday 6 July 2006 commencing at 09:50 hrs.
2. Application
for the variation of a premises licence in respect of Bar Bluu.
3.
Copy of
application form to vary the DPS to Mr Benjamin Leal.
4.
Copy of police representation
in respect of application to vary DPS.
5.
Hampshire
Constabulary and Isle of Wight Council
Licensing Authority Joint Licensing Protocol.
6.
Copy of
application to vary a premises licence to specify an individual as designated
premises supervisor under the Licensing Act 2003.
7.
Copy of police
representation against application to vary designated premises supervisor.
8.
E-mail sent to
Licensing from Police Licensing Unit
0n 26/2/07 re
application to vary DPS.
9.
E-mail sent to
Licensing from Police Licensing Unit
on 28/2/07 re
application to vary DPS.
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10. ADDITIONAL INFORMATION
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1.
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.
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2.
On 20 February 2007,
an application was received from Coralshade Limited to vary the designated
premises supervisor for Bar Bluu to Mr Benjamin Leal. The applicant did not tick the box on the
application requesting the variation to take immediate effect during the
interim period and therefore for the purposes of this application Mr Woodward
remains the DPS.
A hearing to determine
the application to vary the designated premises supervisor is due to be held
on Monday 2 April 2007.
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Contact Point:
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Andrea Colebrook, Licensing Officer
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Ext 5154
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ROB
OWEN
Head
of Consumer Protection
