PAPER B

Purpose: For Decision

Committee: LICENSING PANEL

Date: 9 MARCH 2004

Title: APPLICATION FOR THE RENEWAL OF A PUBLIC ENTERTAINMENT LICENCE FOR GOLDIES, 74 UNION STREET, RYDE

REPORT OF THE HEAD OF CONSUMER PROTECTION

PURPOSE/REASON

1. To consider an application for the renewal of a Public Entertainment Licence for Goldies, 74 Union Street, Ryde.

DETAILS OF THE APPLICATION

2. An application was received on 11 November 2003 from Benjamin Leal and Elliott Day for the renewal of a Public Entertainment Licence in respect of Goldies, 74 Union Street, Ryde. (Appendix 1)

3. Times requested by the applicants are set out below:

Monday – Saturday: 1100 hours – 0200 hours the following morning

Sunday: 1200 hours – 2400 hours.

4. Details of existing Licence:

The current times are:

Monday – Tuesday: 1100 hours – 2300 hours

Wednesday – Saturday: 1100 hours – 0200 hours the following morning

Sunday: 1200 hours – 2400 hours

The Licence was transferred to Messrs Leal and Day on 13 June 2003 and expired on 5 December 2003.

5. The Licensing Justices have granted a Special Hours Certificate for the hours as set out below:

Wednesday – Saturday: until 0200 hours the following morning

Sunday: until 2400 hours

Sundays preceding a Bank Holiday (excluding Easter Sunday): until 0200 hours the following morning.

6. The Licensing Panel must take into account relevant considerations in determining whether or not a licence should be granted. These will include the fitness of the applicants to a hold a licence; the nature of the entertainment and (perhaps) the need or demand for its provisions; and the suitability of the place at which the entertainment takes place and the facilities that are provided there.

LOCATION AND SITE CHARACTERISTICS

7. Goldies is situated in Union Street, Ryde, which has a mixture of commercial and residential premises. There are six other premises providing Public Entertainment in the nearby vicinity.

8. The permitted hours for the other six premises with Public Entertainment Licences are set out at Appendix 2. The Panel are aware that none of these premises are open beyond 2300 hours on a Monday or Tuesday.

9. Should this application be granted it would permit opening until 0200 hours six days a week in a part residential area. Officers believe similar applications from premises in the area would follow.

10. A plan of the area is attached (Appendix 3).

RELEVANT HISTORY

11. The premises were first granted a Public Entertainment Licence on 6 December 2000 when it was known as The Loft. The Licence was transferred to Messrs Leal and Day on 13 June 2003, the application having been submitted to the Council on the 17 April 2003.

12. The Council requires 28 days notice of intention to apply for renewal. This was not given as the notice of intention and application (one form) was not received until 11 November 2003, and the licence expired on 5 December 2003. The Council’s standard renewal letter was sent on 8 October 2003.

13. The local authority can grant the licence if they think fit even if the applicant fails to give the statutory notice.

14. Over a period of time there have been apparent breaches of legislation, which were only attended to when notified to the applicants.

15. History of Concerns:

Date Time Remarks

3.7.2003 N/A Noise complaint warning letter sent

5.7.2003 00:15 Enforcement visit. No food available as per Special Hours Certificate. CCTV not working.

8.7.2003 N/A Warning letter sent re visit on 5.7.2003. Seven days to get CCTV working.

17.7.2003 N/A Two noise complaints.

18.7.2003 14:40 Enforcement follow up visit. CCTV not working also letter re noise complaints delivered.

28.7.2003 21:25 Enforcement visit re noise. CCTV still not fully operational.

1.8.2003 N/A CCTV not working. Warning letter sent.

3.8.2003 23:15 CCTV works.

26.8.2003 16:02 Meeting between Licensing Officer and Ben Leal regarding all complaints resulted in a final informal warning letter being given re noise.

18.9.2003 23:40 Noise limiter not working.

21.11.2003 22:35 Joint enforcement visit with police - advice given.

22.11.2003 02:00 Breach of PEL additional condition 1.9 re glasses removed from premises and Liquor Licensing. Witnessed on CCTV (tape available)

28.11.2003 N/A Warning letter from police re 22.11.2003.

5.12.2003 N/A Police observed possible Licensing Law infringements.

17.12.2003 N/A CCTV not in operation.

16. Members may be aware that there have been other noise complaints recorded against the premises between 28 April and 18 September 2003.

COUNCIL POLICY

17. All Public Entertainment applications where letters of objection/comment are received are placed before the Licensing Panel for consideration.

18. Copies of the objections\comments have been sent to the applicants who have been requested to attend the meeting to answer any questions Members may have.

FORMAL CONSULTATION

19. The Hampshire Constabulary have confirmed that they will object to the application and a copy of their comments is attached (Appendix 4).

20. The Isle of Wight Fire and Rescue have been advised of the application, and have indicated that they have no objection to the issue of a licence subject to certain requirements being implemented.

21. Officers from the Council’s Environmental Protection Section has been advised of the application and have advised that they would not recommend any changes to the current permitted hours. A copy of the Officer’s comments are attached (Appendix 5). The Officer has been requested to attend the meeting to answer any questions members may have.

22. The local Councillor has been advised of the application, however, no comments have been received at the time of writing this report.

THIRD PARTY REPRESENTATIONS

23. The application has been advertised in the Isle of Wight County Press and no letters of objection have been received.

24. One letter of comment has been received from a local resident, a copy of which is attached (Appendix 6). The Panels’ attention is drawn to point 4 and the second to last paragraph in this letter.

25. The author of the letter has been requested to attend the meeting to answer any questions Members may have.

FINANCIAL IMPLICATIONS

26. 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

27. Legislation governing Public Entertainment Licensing is set out in The Local Government (Miscellaneous Provisions) Act 1982, Schedule 1 – Licensing of public entertainments

28. Licensing Panels have a very wide discretion under Schedule 1 to the Local Government (Miscellaneous Provisions) Act 1982 when determining licence applications, for there are no criteria or grounds specified for the grant or refusal of a licence. Paragraphs 1(4), 2(4) and 4(2) simply provide that an authority may grant to any applicant, and from time to time renew a licence for the use of any place specified in it for any entertainment to which the particular paragraph applies.

29. Under paragraph 6 (1) of the Local Government (Miscellaneous Provisions) Act 1982 an applicant is required to give not less than 28 days notice of his intention to make an application in respect of the grant, renewal or transfer of an entertainment licence. No details are given as to the form of the notice.

30. Paragraph 15 of schedule 1 to the Local Government (Miscellaneous Provisions) Act 1982 refers to the provisional grant of public entertainment licences and states (inter alia) “the authority shall confirm any licence granted… if and when they are satisfied that the licence is held by a fit and proper person”. It is accepted that there is no reference to the licensee being fit and proper in respect of grants generally. It would appear surprising if the need to be a fit and proper person only applied to the provisional grant of a licence and not to a full licence.

31. Each application should be considered individually so as to comply with the rules of Natural Justice.

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT

32. 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.

33. The licensee of any PEL premise has many varied responsibilities under Crime and Disorder. Examples are set out below for the Panel’s consideration:

Licence conditions must be observed.

Co-operation with statutory authorities is fundamental.

Awareness of drug related issues is essential.

Understanding the social responsibilities attached to running a licensed premise is vital.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

34. 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 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.

Article 8 is particularly relevant because of the effect of the exercise of any Public Entertainment licence on local residents and Article 1 of the First Protocol is particularly relevant because a licence is viewed as a possession.

OPTIONS

35. To renew the licence for the hours requested by the applicant.

36. To vary the hours requested by the applicant having regard to the objections and other relevant information.

37. To renew the licence subject to the Council’s standard terms and conditions along with any additional conditions the Licensing Panel believe to be reasonable.

38. To renew the licence for a period of less than one year.

39. To refuse to renew the application for a Public Entertainment Licence as the applicants are not considered to be fit and proper persons.

EVALUATIONS/RISK MANAGEMENT

40. The Licensing Panel should be aware that Paragraph 6 (1) of the Local Government (Miscellaneous Provisions) Act 1982 permits the giving of notice in respect of applications for the grant, renewal and transfer of an entertainment licence. An applicant is required to give “not less than 28 days” notice of his or her intention to make the application. Paragraph 6 (1) says little about the giving of notice other than at least 28 days is required. It says nothing about the form of notice. No mention is made as to whether notice needs to be in writing or what information it should contain. However, applicants are required under Paragraph (6) (3) to furnish in support of an application such particulars as the Licensing Panel prescribe, and these have to be in written notification form. This Council along with a number of other Authorities, rather than require separate, advance (written) notification of intention to make an application prior to an application being made, combine notice of application with the actual application itself. Applicants are required to submit an application which doubles as a notice of intention to apply and the actual application itself.

41. The applicants have previously been granted a licence, however, any evidence showing that they are incapable of exercising proper control, or where they have allowed breaches of the law to take place, may lead to them being considered unfit to hold a licence. This could be the case if they have failed to maintain good order on the premises, even in the absence of any public disorder occurring.

42. Attention is drawn to the fact that for taxi licensing under Section 51 of the Local Government (Miscellaneous Provisions) Act 1976 it is for the applicant to show that he is a fit and proper person to hold a licence under the normal civil standard of proof, i.e. on the balance of probability. This was held by the High Court in R v Maidstone Crown Court ex parte Olson 1992. It is arguable that the position is similar in respect of public entertainment licences.

43. There would appear to be no reason why matters pertinent to a decision as to whether the applicant is a fit and proper person should not include any convictions by the Court, any cautions or warnings given by the police, any noise complaints substantiated by the Environmental Protection Section and any subsequent court hearings.

44. The Panel may in its deliberations consider whether the applicants, being of good character with no previous convictions or cautions with only verbal or written warnings given by the Police or the Licensing Authority, might nevertheless be considered unfit to hold a licence. Such considerations are relevant in respect of an application for a Justices licence for the sale of intoxicating liquor and can similarly be relevant in respect of applications for public entertainment licence.

45. Officers have considered the implications under the Human Rights Act and the Local Government (Miscellaneous Provisions) Act 1982. It is important to ensure that premises are managed to the same high standard Island wide.

46. Insofar as any risk to the Council is concerned, the issue of Crime and Disorder and Human Rights have been evaluated. Any resolution the Panel makes is within its delegated powers.

RECOMMENDATIONS

47. To refuse to renew the application for a Public Entertainment Licence as the applicants are not considered to be fit and proper persons.