Purpose: For Decision

Committee: LICENSING SUB-COMMITTEE

Date: 26 JUNE 2006

Title: APPLICATION FOR THE REVIEW OF A PREMISES LICENCE FOR STANLEY’S SPORTS BAR, UNION STREET, RYDE, ISLE OF WIGHT

REPORT OF THE HEAD OF CONSUMER PROTECTION

1. DETAILS OF THE APPLICATION

Applicant Name and Address	Chief Superintendent Morgan Police Station High Street Newport Isle of Wight PO30 1SZ
Premises Being Reviewed	Stanley’s Sports Bar 23 Union Street Ryde Isle of Wight PO33 2DT
Licence Holder	Simone Jane Mainzinger
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

Simone Jane Mainzinger

	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 Sat 10:00hrs until 02:00hrs Sunday 10:00hrs until 00:30hrs
(f)	Recorded music	Mon to Sat 10:00hrs until 02:00hrs Sunday 10:00hrs until 00:30hrs
(g)	Performances of Dance	N/A
(h)	Anything similar to (e) (f) (g) above	N/A

	Provision of Entertainment Facilities

(i)	making music	N/A
(j)	dancing	Mon to Sat 10:00hrs until 02:00hrs Sunday 10:00hrs until 00:30hrs
(k)	entertainment similar to (i) & (j) above	N/A

	Late Night Refreshment	Mon to Sat 10:00hrs until 02:00hrs Sunday 10:00hrs until 00:30hrs

	Supply of Alcohol	Mon to Sat 10:00hrs until 02:00hrs Sunday 10:00hrs until 00:30hrs

	Other Times Premises Proposed To Be Open To The Public	Mon to Sat 10:00hrs until 02:00hrs Sunday 10:00hrs until 00:30hrs

	Non Standard Timings	All the above licensable activities on Christmas Eve and each Sunday preceding a Bank Holiday to be permitted from Monday to Sunday 10:00hrs until 02:00hrs

Conditions of the Existing Premises Licence

The Prevention of Crime & Disorder

No Conditions

Public Safety

1. The maximum number of persons on the licensed parts of the premises at any time shall not exceed: Bar Area: 200 (two hundred) persons

2. All lighting and electrical apparatus on the stage, likely to become heated, must be provided with a suitable protection to prevent contact by scenery or any other combustible material.

3. THE LICENSEE(S) must ensure that people entering and leaving the premises are counted using a method approved by the Council and that the net total of people recorded inside the premises must, at all times, be available for inspection by Officers.

4. First aid staff and facilities must be provided to the satisfaction of the Council.

5. THE LICENSEE(S) must have regard to the needs of disabled people and in particular:

(a) Provision must be made for disabled people using the premises, to be accommodated in seating or reserved places in close proximity to exits capable of being used by disabled people with or without assistance. Such exits must be clearly indicated by the display of a disabled symbol.

(b) Reasonable provision must be made and maintained in respect of access/egress and facilities for disabled people within the licensed premises.

6. The Licensee/Licensees will supply door supervisors, as defined in the Private Security Industry Act 2001, who are registered with the Security Industry Authority. The number of door supervisors to be on duty, while the premise is open to the public, to be determined by the Licensee/Licensees after having carried out a written health and safety risk assessment to the satisfaction of the Local Authority and having had due regard to crime and disorder.

The Prevention of Public Nuisance

1. Prior to any regulated entertainment taking place an electronic sound limiter shall be installed in the premises to control the level of noise breakout. The details of the device to be installed in the premises shall be submitted to the Licensing Section for approval. Once approved the limiter shall be installed and set up by a competent person. It shall be set at a level agreed with the Licensing Authority. The sound limiter level once set shall not be adjusted without prior approval of the Licensing Section and no entertainment shall take place on the premises unless the limiter is used to control the level of sound. The orientation of the speakers shall not be altered once agreed without authorisation from the Licensing Section. On completion of the installation a report shall be issued to the Licensing Section certifying the agreed devices set levels and its tamper proof integrity. The limiter shall then thereafter be maintained by a competent person every twelve months. The results of this maintenance shall include a test of its normal operation and certification of the devices tamper proof integrity shall be recorded and forwarded to the Licensing Section on application for renewal of the public entertainment licence. In the event of a malfunction affecting noise output appropriate action shall be taken to ameliorate the effect and the Licensing Section shall be notified immediately

2. No public entertainment shall take place with: (a) any rear external door or window being kept open, so as to provide ventilation (b) Any front external door or window being open after 21:00hrs so as to provide ventilation. Ventilation shall only be provided by suitable and sufficient mechanical means, so as to avoid the necessity for opening doors and windows when they are required to be kept closed. (The amount of ventilation provided is also a requirement under Health and Safety legislation). The mechanical system shall be operated as required and maintained thereafter.

3. Provide and maintain video recording equipment with date and time facilities at all main entrances to the premises and inside the premises to the satisfaction of the Police and the Council. The above equipment must be kept in good working order and operated throughout the full opening times. The video recordings must be kept securely for a period of not less than fourteen days and must be made available to authorised Officers of the Council and the Police for inspection at all times during that period.

4. THE LICENSEE(S) must ensure that no bottles or glasses are removed from the premises.

The Protection of Children From Harm

No Conditions

2. LOCATION AND SITE CHARACTERISTICS

Stanley’s Sports Bar is situated in the Union Street, Ryde. The bar area occupies the ground floor of a terraced building situated in a predominantly commercial area however there are also a number of residential accommodation in all buildings in the street.

Access to the premises is through a door direct from Union street and into the bar area. To the rear of the premises there is a pool table and facilities for live and recorded music and facilities for dancing. The conditions required by the licence previously issued have to date been complied with.

3. 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

Mr F Louch	Representations made that state the alleged incidents could have been avoided through co-operation between the licensee and the Police. Representations also state that consequently, if the activity had not been permitted (by the Police) the licensing objectives would have been promoted (Appendix 2)

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 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
Clause 6	Representation, Reviews and Appeals	All paragraphs
Clause 7	Enforcement	All paragraphs
Clause 8	Operating Schedules	All paragraphs

5. 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 reviews arising in connection with crime is as follows:

Paragraph 5.112

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

Paragraph 5.113

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

Paragraph 5.114

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

Paragraph 5.115

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

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

· for the sale and distribution of illegal firearms;

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

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

· for prostitution or the sale of unlawful pornography;

· by organised groups of paedophiles to groom children;

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

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

· for unlawful gaming and gambling; and

· for the sale of smuggled tobacco and alcohol.

Paragraph 5.116

It is envisaged that licensing authorities, the police and other law enforcement agencies, which are responsible authorities, will use the review procedures effectively to deter such activities and crime. Where reviews arise and the licensing authority determines that the crime prevention objective is being undermined through the premises being used to further crimes, it is expected that revocation of the licence (even in the first instance) should be seriously considered.

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, 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.

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.

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.

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) 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 police have made the following representations in their application for review:

The Prevention of Crime & Disorder

· Police occurrence log lists 14 drug occurrences; 6 assaults; 5 public disorder incidents and 3 thefts at the premises.

Prevention of Public Nuisance

· None

Public Safety

· None

Protection of Children From Harm

· Police record of 2 incidents of underage sales at the premises

8. APPENDICES ATTACHED

Application form to review premises licence

Representation from interested party (Mr Louch)

Letters of Support

9. ADDITIONAL INFORMATION

7 letters of support for Stanley’s Sports Bar have been received (Appendix 3).

Contact Point:

David Curtis-Botting

Licensing Officer

Ext 5155

ROB OWEN

Head of Consumer Protection