8.
In February 1974 (TCP/5210) the premises was granted Planning Permission
for change of use from a hairdressing salon to a shop on the ground floor and
an office above. On 12 October 1976
(TCP/15210/A) the shop was granted Planning Permission for a change of use from
the shop to an Estate Agents, presumably keeping the office unit above. The final application (TCP/15210/B) on 17
May 1988 related to another change of use from an Estate Agent back to a retail
outlet, therefore being in use classes of the 1987 Order as ‘A1’. The current proposal is also within class
‘A1’ of the Order and therefore would not need Planning Permission.
9. The Council has not previously had to
take enforcement action against any unlicensed premises. Should this have been required it would have
normally been carried out in association with the Hampshire and Isle of Wight
Constabulary and other agencies.
10. The former Medina Borough Council
received an application dated 31 December 1982 for a Sex Shop Licence for the
premises at 92 High Street, Ryde, to be operated by Quietlynn Limited. This application was considered by the
Policy and Resources Committee on 12 April 1983 and refused on the grounds
that:
(a)
The grant of a Licence would mean the number of Sex Establishments in
the relevant locality would exceed the number (0) that is considered
appropriate for that locality; and
(b)
The grant of a Licence would be inappropriate having regard to the
character of the relevant locality and the use to which other premises in the
vicinity are put.
11. Since that date another application, from
the present applicant, for the grant of a Sex Shop Licence was received dated
19 August 2003. This was later
withdrawn at the request of the applicant pending a search for other premises.
COUNCIL
POLICY
12. The
current policy is that each application, where there are letters of comment or
objections, will be considered on individual merit by the Licensing Panel.
13. The
Panel should be aware that it has been held by the Court of Appeal in R v.
Birmingham City Council and others ex parte Quietlynn Limited (1985) that the
whole of the Authority’s area was too wide an area to be a relevant locality with
regard to a policy for Sex Shop Licences.
14. Schedule
3 to the 1982 Act requires that the applicant give formal notice of an
application for the grant of a Sex Establishment Licence. In this case the date of the application was
6 January 2004, and statutory notice of such was given to both the Council and
the Chief Officer of Police for the area.
An appropriate public notice was displayed on the premise at 58 Pyle
Street, Newport, Isle of Wight, for a period of 21 days commencing 6 January
2004. This notice was observed by staff
and regularly examined to ensure that it was legible and had not been defaced
or removed from the shop window.
15. A
statutory notice was placed in the Isle of Wight County Press on 9 January
2004. It gave a period of 28 days from
the date of the application for the public to make comments or representation
about the proposed application.
16. The
applicant, Darker Enterprises Limited, has complied with all statutory
advertising requirements in respect of this matter.
FORMAL CONSULTATION
17. The Panel must have regard to the
observations of the Police which are shown below.
18. The Hampshire Constabulary
have been given details of both the first and second applications submitted by
Darker Enterprises. The Police have no grounds
on which to oppose the application. The
Police requested, on 24 March 2004, that in the event of a Licence being
granted, the following conditions be considered as suitable.
(a)
That a CCTV system be installed inside the premises to the satisfaction of
the Chief Officer of Police and the Isle of Wight Council.
(b)
That the premises be given a discreet frontage and name, with no external
advertising permitted on the building.
(c)
That sufficient details to enable background checks of all persons proposed
to be employed on the premises, and/or in control of the premises be provided
to the Police.
(d)
That no alcohol be permitted or available on the premises
for consumption on or off the premises by either staff or customers.
(e) i) That no
food or drink be available on the premises and that ii) no food or drink be
allowed to be brought into the premises for consumption on the premises. The exception to both being, only for
members of staff at the time of working at the premises.
THIRD PARTY REPRESENTATIONS
19. Paragraph
15 of the report confirms that a Public Notice was given in accordance with
statutory requirements. This allows for
objections to be received in writing by the Licensing Officer. 21 letters of objections and petitions
amounting to 59 sides of A4 paper were received within the statutory 28 day
period.
20. The Panel is aware that they must take
into account the objections that have been received within the 28 days, and are
required by law to consider them.
21. However, 2 further petitions of 2 sides
of A4 and 2 other letters were received late.
The Panel is aware that they have a discretion to admit the late
objections provided two other criteria can be met:
(i)
The applicant is advised of the late objections received.
(ii)
The objections themselves must be relevant and be able to demonstrate
the reasoning that is compatible with discretionary grounds for refusal
indicated later in this report.
22. The Licensing Officer has examined the
objections received and ruled that of these, 3 pages of the petitions and 9 of
the letters be given the weight that the Panel consider appropriate as they do
not give a reason for objection.
23. The late objections will also have to be
considered appropriately.
24. All objections and comments have been
forwarded to the applicant.
25. Addresses have been removed as they must
be kept confidential in accordance with the legislation.
26. The letters of comment and objection
(Appendix 1) have been sent under separate cover to the Members of the Panel
and to the applicant only. Further
copies will be available at the meeting or on application to the Committee
Services section.
27. Geographically, only one letter has been
received from a resident of Pyle Street.
28. The letters of objection are:
·
Eight Newport/Carisbrooke (including one Pyle Street)
·
One Bembridge
·
One Ryde
·
Three Cowes/Gurnard
·
One Sandown
·
One Seaview objection sent to Planning
·
Four Newport objections sent to Planning
·
One Brighstone objection sent to Planning
·
Petitions Island wide
Late reply:
·
Two petitions
Late letters:
·
One Freshwater
·
One Newport
29. In addition, other Officers of the
Council (who are not statutory consultees) have been asked to comment on the
merits of this application. Whilst not
objecting, Officers’ views may help the Panel to determine the application.
30. The Head of Engineering Services, Highways and Transportation confirmed
on 27 January 2004 that they did not consider there to be adverse road safety
implications that would result from the granting of this Licence.
31. The
Isle of Wight Fire and Rescue Service commented that an inspection was recently carried out as the
present owner occupied the building.
Access to the entire building was not possible and it was apparent that
the premises do not contain any built in fire safety precautions, that is fire
separation, fire alarm or emergency lighting.
The Department considers that in order to give accurate fire safety
advice a detailed plan of the intended use and occupancy of the building is
required. The applicant has been made
aware of this requirement.
32. The
Environmental Protection and Health
and Safety Sections have no adverse comments.
33. The Head of Planning Services commented that there could be control
over the type of advertisement displayed on the frontage, depending on the type
of display, as they would require any advertisement to be sympathetic to the
surrounding environment.
34. The
Director of Education and Community Development has expressed concern, on
23 March 2004, with regard to this application. The proposed location of the shop would be in close proximity to
a number of schools and school but routes.
The location of the shop would be close to Nodehill Middle School which
provides for 9 – 13 year olds, and parents with younger children often pass by
collecting and setting down pupils. The
site of the shop is also in proximity to the Family Information Zone and again
this could be a problem. The main
concerns are the location of the shop would mean that significant numbers of
young children and families with young children would be passing this
location. It is also worth noting that
Nine Acres Primary School serving children from 4 – 9 is also in reasonably
close proximity and the site of this shop will be on the route for a number of
parents passing with young children and bringing them to school. It is obviously inappropriate for a shop of
this nature to be in close proximity to schools, school bus routes and
pedestrian routes for children going to and from school.
35. Newport
Area Forum has objected to the grant of a Licence as they believe it is
inappropriate to have a sex shop in that locality.
36. The Panel should use local knowledge to
consider the relevance of the objections and to help identify the
characteristics of the immediate locality, for example reference is made to the
proximity of McDonalds, national stores and record shops, where young persons
are known to congregate.
37. The objectors have no statutory right to
be heard in person by the Licensing Panel, however, Council policy is to allow
objectors to present their own evidence.
Accordingly, objectors have been notified that they may attend the
hearing and address the Panel at the discretion of the Chairman.
38. The applicant, in accordance with adopted
procedures, would have the right to cross-examine or rebut any evidence from
objectors.
FINANCIAL
IMPLICATIONS
39. Broadly,
Council expenditure on Licensing matters, and in particular those that are
administered and enforced through Consumer Protection, balances income received
from licence fees.
LEGAL IMPLICATIONS
40. In considering this application, the
Panel is asked to note various statutory definitions concerning the licensing
of Sex Establishments which may assist their deliberations. The Panel are reminded that they are obliged
to consider the application in accordance with the rules of natural justice and
have regard to established procedures for considering applications. The Panel should not, under any
circumstances, depart from this procedure and legal advice should be sought
immediately if any queries are apparent.
The Panel must determine the application on merit. No decision, opinions or factual findings
must be made based on “moral” grounds, and all the facts must be considered
before reaching a decision.
41. Both of the former Island Borough
Councils resolved, pursuant to Section 2 of the Local Government (Miscellaneous
Provisions) Act 1982 that Schedule 3 of that Act should apply in their
respective areas. The Schedule relating
to Newport came into force on 1 March 1983.
42. Schedule 3 of the 1982
Act sets out the framework for the consideration of applications for the grant
of Sex Shop Licences.
43. It is an offence for a person to use any
premises, in any area where the provisions have been adopted, without the
benefit of a Licence issued by the local authority.
44. A “sex
establishment” is either a sex shop or a sex cinema. In this case the application is for the
grant of a sex shop licence in Pyle Street, Newport.
45. A “sex
shop” is legally defined as:
“Any premises, vehicle,
vessel or stall used for business which consists to a significant degree of
selling, hiring, exchanging, lending, displaying or demonstrating sex articles
or other things intended for use in connection with, or for the purpose of
stimulating or encouraging – sexual activity or acts of force or restraint
which are associated with sexual activity”
A “sex article” is defined as anything made for use in connection
with or for the purpose of stimulating or encouraging:
(a)
Sexual activity
(b)
Acts of force or restraint which are associated with sexual activity.
This applies:
a)
to any article containing or embodying matter to be read or looked at or
anything intended to be used either alone or as one of a set, for the
reproduction or manufacture of any such article and
b)
to any recording of vision or sound, which
i)
is concerned primarily with the portrayal of, or primarily deals with or
relates to, or is intended to stimulate or encourage, sexual activity or acts
of force or restraint which are associated with sexual activity, or
ii)
is concerned primarily of, or primarily deals with or relates to,
genital organs, or urinary or excretory functions.
46. A licence can be granted for a period of
one year or such shorter period as considered necessary. Licences can be granted subject to terms,
conditions or restrictions.
47. Licences can be cancelled, revoked and
transferred.
48. The Panel has a duty to have regard to
the comments of the Chief Officer of Police.
Statutory refusal of licences
49. The Act sets out a number
of statutory grounds where licences cannot be granted. These grounds are:
(a) the licence cannot be granted to a person under 18,
(b) a licence cannot be granted to a person disqualified under the
Act,
(c) a licence cannot be granted to a person not resident in the
UK,
(d) a licence cannot be granted to a body corporate which is not incorporated in the UK,
(e) a licence cannot be
granted to a person who has, within 12 months immediately preceding the date of
the application been refused the grant of a licence for the same premises.
The above provisions do not apply to this applicant.
Discretionary refusal of licences:
50. The Act allows for
licences to be refused using discretion (and for which careful and balanced
reasons should be given) in the following manner:
(a)
That the applicant is
unsuitable to hold a licence by reason of having been convicted of an offence or for any other reason.
There is no
evidence to support refusal on these grounds.
(b)
That if a licence were to be
granted, the business to which it relates would be managed by or carried on for
the benefit of a person, other than the applicant, who would be refused the
grant, renewal or transfer of such a licence if he made the application
himself.
There is no
evidence to support refusal on these grounds.
(c) That the number of sex
establishments in the relevant locality at the time the application is made is
equal to or exceeds the number which the authority consider is appropriate for
that locality. “Nil” may be an
appropriate number of premises in the relevant locality.
(d) That the grant or renewal
of the licence would be inappropriate, having regard:
(i) to the character of the
relevant locality
(ii) to the use to which any
premises in the vicinity are put; or
(iii) to the layout,
character or conditions of the premises in respect of which the application is
made.
Relevant locality:
·
The policy of the Panel is to consider each application on individual
merit. Once an application is made it
is then that the Panel can determine the relevance of the “locality” when
balancing the overall needs of the applicant together with the greater needs of
the local community. The Panel do not
have to draw up boundaries or draw circles on a pre-determined map, but may use
local knowledge to consider what is relevant.
It is not for the Panel to decide, in advance, of any one application
what the relevant location on the Island will be, but rather to look at a
proposed shop and decide the locality accordingly when an application has been
received.
·
The Panel have been advised that should they be mindful of refusing the
application then relevant and proportionate reasons will need to be given. If locality is a concern, the Panel should
focus on the following core points:
Ø
Why the relevant location was chosen?
Ø
How the character has been identified?
Ø
How has that character made the licensing of a shop in that particular
area inappropriate?
A plan of the immediate
area is attached for consideration, Appendix 2
To grant or refuse:
51. The recommendation to the
Licensing Panel is open. Officers have
not presented a formal recommendation either for or against the application.
52. If mindful of granting
the licence the Panel may wish to impose conditions. Conditions may be “standard” or may relate to an individual
premise.
53. The Act indicates that
conditions may include:
(a)
Hours (and presumably days) of operation.
(b)
Regulations on displays or advertisements on or in premises
(c)
The exterior visibility of the establishment to passers by.
(d)
Any change from a sex shop to a sex cinema or vice-versa.
54. The Panel has never
formally adopted standard or special conditions (as no licence has ever been
granted) and it is therefore recommended, if the Panel are mindful of granting
the licence, that delegated authority be given to the Head of Consumer
Protection to determine, in conjunction with the applicant and Police any
appropriate standard and/or special conditions. The Panel could, if necessary, specify the “core” conditions such
as trading days and times.
55. If mindful of refusing,
valid, proportionate and relevant reasons must be given in writing within 7
days to the applicant. The Panel may
announce their decision verbally (as is normal practice) at the end of the hearing.
There are no grounds to statutorily
refuse the application and therefore it is likely that the Panel’s
deliberations will concentrate on the discretionary grounds for refusal.
56. Members are aware that
local opposition or support (in whatever form) for a proposal is not in itself
grounds for refusing or granting a licensing permission, unless that opposition
or support is based upon valid reasons and concerns which can be sustained.
IMPLICATIONS
UNDER THE CRIME AND DISORDER ACT
57. Without
prejudice to any other obligation imposed on it, it shall be the duty of each
authority, to which this section applies, to exercise its various functions
with due regard to the likely effect of the exercise of those functions on, and
the need to do all that it reasonably can to prevent, crime and disorder in its
area.
58. The Crime and Disorder
Team have commented as follows:
A sex shop may not, in
itself, have any specific crime and disorder implications, however, due to the
nature of the shop it is likely to offend and raise peoples’ perception of
crime. In order to reduce the impact of
fear of crime it would be recommended that any establishment of this type be
sited in a location which does not attract/impact on large numbers of passers
by. A suitable location may well be on
the outskirts of a town, avoiding arterial routes and away from schools,
churches, youth clubs, etc.
IMPLICATIONS
UNDER THE HUMAN RIGHTS ACT
59. Members are advised that this application must be considered against a
background of the implications of the Human Rights Act 1998.
There
are three convention rights which need to be considered in this context:-
a) Article 6 - Right to a fair trial
In
the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.
It
has been held that the fact that there is a right of appeal to the magistrates’
court from any decision of the Panel 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”.
The Panel needs to be clear as to
the rights granted and the need to ensure that the reasons given for any
interference are proportionate and in accordance with the Council’s legitimate
aim.
All three
articles, where appropriate, are particularly relevant to sex establishment
licensing as they protect the applicant and objectors.
OPTIONS
60. To grant the licence for
the hours requested by the applicant.
61. To vary the hours
requested by the applicant having regard to the objections and other relevant
information.
62. Any licence granted by
the Council should be subject to terms and conditions the Licensing Panel
believes to be reasonable.
63. To refuse the application
on discretionary grounds stating the reasons for refusal.
64. Any other decision the
Panel considers reasonable.
EVALUATIONS/RISK
MANAGEMENT
65. Mr Darker has been interviewed by the
Licensing Officer, and the following facts have emerged in support of his
application:
·
Raymond Darker has been trading as a Managing Director of Darker
Enterprises since 1986. He has been
involved in the “leisure” and “personal” industry for over 27 years.
·
He has no convictions, cautions or any other reprimands/warnings either
against his name personally or the Company.
·
He is not a disqualified director or a person who is disqualified and
barred from holding a sex shop licence, under statutory provision contained in
Schedule 3 to the 1982 Act.
·
Mr Darker has been asked to explain the management controls in place for
the purposes of operating or supervising any one particular premise. He says that there are approximately 85
licensed premises operating throughout the Country, and that there is an appropriate
“support infrastructure” of supervisory staff divided into 3 distinct
geographical areas. The Isle of Wight
is part of the South West area stretching from Plymouth to South Wales, along
the M4 to Reading, Swindon and down to Portsmouth.
·
There is one District Manager and 4 Supervisors for each area, together
with relief cover for either sickness or other reasons.
·
He says that it is Company policy for “test purchases” to be undertaken
at licensed premises. This is to ensure
that staff are acting in accordance with any conditions of licence imposed by
the local authority, ensuring that persons under the age of 18 are not admitted
to the premises and also to check on other matters such as cash security,
toilet provisions and general cleanliness of premises, etc.
·
Mr Darker also states that all material of a sexual nature is supplied
to individual licensed premises from a central base. Under no circumstances are individual managers or supervisors
allowed to purchase stock that has not been cleared and vetted by Darker
Enterprises Limited.
66 All employees are vetted, and the
Company encourage and welcome Police/local authority comments on the
suitability of any staff to be employed.
67 There is also a staff register available
which permits a local authority and/or Police Officers to inspect it at any
reasonable time.
68 CCTV coverage (for a monthly retention
period) can be provided if required by condition of licence.
69 At present, Darker Enterprises have an
option to take over the premises known as 58 Pyle Street, Newport.
70 The
shop will primarily sell books, magazines, videos, DVD’s and marital aids.
71 The premises will also wish to sell
“18R” videos which, by law, can only be sold or supplied from licensed premises
following certification by the British Board of Film Classification.
72. It is likely that a video and/or DVD
display will be looked at by way of a TV broadcast for customers to see short
clips of sexual activity. The display
area for this is controlled and monitored carefully by staff.
73 The applicant, Darker Enterprises
Limited is a subsidiary Company of Conigate Limited, which is in turn a
subsidiary Company of Raw Deal Limited.
74. A Company search has been carried out and
is available in the Members’ room.
75. Officers have
considered the implications of this information and this application under the
Human Rights Act and the Local Government (Miscellaneous Provisions) Act 1982.
|
RECOMMENDATIONS
76. Members are requested
to determine the application for the grant of a Sex Shop Licence in respect
of premises situated at 58 Pyle Street, Newport, Isle of Wight.
|
APPENDICIES
77.
Appendix 1 – Letters of comment and objection – attached for Members of
the Panel and for the applicant.
Further copies will be made available on the day of the meeting or on
application to Committee Services.
Appendix 2 – Plan of
immediate area
BACKGROUND PAPERS
78.
Application for Licence
Extract from Medina Borough
Council, Policy and Resources Committee, 12 April 1983 re licence for sex
establishment
Plans of interior
Plan of area
Company Search
Hampshire Constabulary
comments
Head of Engineering
Services, Highways and Transportation
The Isle of Wight Fire and
Rescue Service
The Environmental
Protection and Health and Safety Sections
The Head of Planning
Services
The Director of Education
and Community Development
Newport Area Forum
Photographs on CD
Other documents on
licensing application file
ADDITIONAL INFORMATION
79.
Southern Vectis, a local transport provider, operates 4 services an hour
using this part of Pyle Street, between 0900 hours and 1800 hours reducing to 2
an hour after 1800 hours. Two school
services are also provided by this Company in the afternoon.
80. Wight Bus provide two school services and
one local service between 1330 hours and 1630 hours and also state that they
provide an average of two private hire services for school educational visits
per day, which also use that part of Pyle Street.
Contact Point: John Murphy, 823152
ROB
OWEN
Head of Consumer Protection
