PAPER B

 

Purpose: For Decision
 
Committee:    LICENSING SUB-COMMITTEE  
 
Date:               26 MARCH 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 under section 51 of the Licensing Act 2003, to review a premises licence.

 

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 premise 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

 

Applicant Name and Address

Hampshire Constabulary

Chief Superintendent Morgan

Police Station

Newport

Isle of Wight

PO30 1SZ

 

Licence Holder

Coralshade Limited

Fleet Court

New Fields

Stinsford Road

Poole

Dorset

BH17 0NF


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

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       00:01 hrs until 23:59 hrs

 

 

(f)

Recorded music

Each day       00:01 hrs until 23:59 hrs

 

 

(g)

Performances of Dance

Each day       00:01 hrs until 23:59 hrs

 

 

 

 

 

 

 

Provision of Entertainment Facilities

 

 

 

 

 

 

(i)

Making music

Each day       00:01 hrs until 23:59 hrs

 

 

(j)

Dancing

Each day       00:01 hrs until 23:59 hrs

 

 

 

 

 

 

 

Late Night Refreshment

Each day       23:00 hrs until 05:00 hrs

 

 

 

 

 

 

 

Supply of Alcohol

Each day       00:01 hrs until 23:59 hrs

 

 

 

 

 

 

 

Other Times Premises Proposed To Be Open To The Public

Each day       00:01 hrs until 23:59 hrs

 

 

 

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.

 

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 5.100       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:

 

·                    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, Hampshire Constabulary have made the following representations in their application 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 in respect of CCTV.

·                26 incidents have been logged by the police since the grant of the 24 hour licence.

·                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.

·                Two other incidents are also highlighted; 16/12/06, 28/12/06

·                These incidents illustrate continued breaches of the CCTV condition.

·                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.

·                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

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.

 

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

 

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.

Response from Mr Woodward to letter dated 17/1/07 from Inspector 7395 Evans

21.

Response from Mr Woodward to letter dated 18/1/07 from Inspector 7395 Evans

 

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 09:50 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.

 

 

10.       ADDITIONAL INFORMATION

 

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.

 

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.

 

 

Contact Point:           

Andrea Colebrook, Licensing Officer

Ext 5154

 

ROB OWEN

Head of Consumer Protection