Agenda item

Presentation by the Principal Licensing Officer

The Committee was informed that this was an application for a review of the current licence.  The Sub-Committee’s attention was drawn to Chapters 2, 3, 9, 10,11 of the Statutory Guidance and to Sections 5, 6, 7, 8, 9, 10, 11, 12 , 13 and 19 of the Statement of Licensing Policy, as the ones particularly relevant to this application.  The options available to the Sub-Committee were set out in paragraphs 5.10 of the report on pages 30 of the agenda papers.

The Principal Licensing Officer’s presentation was made under item 4b).

Presentation by the Applicant

Mr Bernard Comny, Lambeth Trading Standards, informed the Sub-Committee that:

• Following his presentation, he wanted to invite the Sub-Committee to consider revocation.  If members were not minded to revoke the premises licence, then he would be willing to suggest additional conditions.
• This was a review application of a Romanian grocery delicatessen.
• There had been suspicion that the premises, licensed by Lambeth to sell alcohol, engaged in selling foreign UK Duty not paid tobacco.  The tobacco also lacked the appropriate health warnings.
• On 2 March 2016, following a planned operation using a tobacco sniffer dog, a rucksack was found hidden underneath and behind the deli counter filled with tobacco.  Without the dog, the tobacco would not have been located.
• Smuggling tobacco was regarded as a criminal business as cheap and foreign tobacco was sold without HMRC duty being paid.  This also denied the UK of funds and revenue that supported the infrastructure of schools, education and hospitals.
• Car keys were found at the premises which opened a car nearby.  In the boot of the car, a large amount of illicit tobacco was found.
• No one at the premises admitted ownership of the tobacco.  The Designated Premises Supervisor, Mr Buzatu, was the only employee that admitted speaking English, although there were seven staff members that also appeared to in work shop.
• An examination of the premises licence displayed in the shop showed Mr Sarbu and Mr Buzatu, as joint Premises Licence Holders and Mr Buzatu as the Designated Premises Supervisor.  However, when challenged on this, Mr Buzatu appeared unaware of his position and responsibilities under the Licensing Act.
• Enquiries regarding the ownership of the vehicle proved unsuccessful.  A notice pursuant to Section 17 of the (Greater London Council) (general powers) Act 1972 was sent to the person identified as the registered owner but no response had been received.
• Mr Sarbu and Mr Buzato had been charged with possession of the tobacco lacking UK health warnings and possessing smuggled goods at the premises, totalling eight charges.
• Mr Sarbu offered to plead guilty to all charges which was accepted and the case against Mr Buzato did not proceed. 
• Mr Sarbu was fined £4,480.
• The owner of the car who failed to attend court was fined £760 for his absence.
• 19 bottles of spirits without the necessary HRMC duty stamp had also been found at the premises. 
• A failed underage test purchase occurred at the premises on 3 August 2016.
• He had no doubt that the premises at that time was a place of criminal activity that had smuggled tobacco and alcohol without duty being paid on them.
• On referring to S182 of the Home Office Guidance regarding the Licensing Act (issued on 7 April 2017), the  Legal Adviser to the Sub-Committee confirmed that the guidance did not affect the application.  Applications submitted prior to 7 April 2017 needed to be considered under the old guidance.  Mr Conmy then proceeded to read from the old Home Office Guidance pertaining to criminal activity as outlined in sections 11.27 and 11.29 to support his argument.
• If requested by Members, he would be willing to suggest further conditions on the licence.

In response to questions from Members, Mr Conmy referred to the case of East Lindsey District Council v Hanif [2016] and proposed that if there was a need to avoid harm in the future then revocation was an option.

Presentation by the Premises Licence Holder

Mr Gary Grant, Barrister, representing Mr Marius Costrasel, presentation was made under item 4b) above.

Following the presentation made by Mr Conmy, Mr Grant was then invited back by the Sub-Committee to make further points and he stated that:

• If there was no other option available than promote the licensing objectives, then Members would be minded to revoke the premises licence.  However, in this case, a proper alternative had been suggested.
• The Sub-Committee could not speculate without facts being provided.  In this case, no evidence had been provided which showed Mr Costrasel’s criminal involvement with the premises.  His mere presence on Christmas Eve when collecting his bonus did not implicate him in the involvement of illicit tobacco.
• There was evidence to suggest that Mr Costrasel as Designated Premises Supervisor and Premises Licence Holder would make improvements to the premises.
• The Sub-Committee may decide that both Mr Sarbu and Mr Buzato should have no involvement with the premises to which he would agree and that was why conditions had been offered to exclude them.  Other conditions had been offered to avoid such offences being repeated.
• He felt that Mr Costrasel should be given the opportunity to manage the premises.  If he was not successful, then the responsible authorities had the right to bring the application   back to the Sub-Committee.
• This was the first time the premises had been reviewed by the Sub-Committee considering the seriousness and urgency of the issues raised.  Despite the raid that initiated the review that had occurred in March 2016, it took the Council 11 months to instigate the review.

In response to questions from Members, Mr Grant confirmed that:

• Although it could be speculated that Mr Costrasel might have been involved in criminal activity associated with the premises, no facts before the Sub-Committee had been provided.
• Mr Costrasel occasionally assisted by carrying out ad hoc duties such as driving to the Cash and Carry where illicit tobacco cannot be obtained.  That kind of tobacco was usually purchased from a man in a white van who tended to deliver goods off-road near to the premises. 
• Despite the underage sale that occurred in August 2016, no representations had been received.
• As the premises served the Romanian community, it was important that the shop continued to exist.  Also seven staff members financially relied on the shop.
• Although the Home Office Guidance suggested revocation in these type of cases, if an alternative option was available it should be considered by the Sub-Committee.

In response to a question from Members, the Legal Adviser to the Sub-Committee confirmed that he agreed with Mr Grant that inferences can be drawn only from the facts heard and presented.  However, the Sub-Committee cannot speculate without that being supported in some way by the evidence provided.

The Legal Adviser also suggested that the conditions offered by Trading Standards should be taken for consideration by the Sub-Committee during its deliberations.

At 8.24 pm, the Sub-Committee withdrew from the meeting together with the legal advisor and clerk to deliberate in private.

The Sub-Committee had heard and considered representations from Mr Conmy and Mr Grant.

Legal advice was given to the Sub-Committee on the options open to them and the need for any decision to be proportionate.  The Sub-Committee decided to grant the review and impose additional conditions.

RESOLVED: To grant the review (item 4d) and impose additional conditions.

Announcement of Decision

Members returned to the meeting and the Chair informed those present of the decision to grant the review application and impose conditions.  The Chair confirmed that full written reasons and notification of the decision would be sent in due course.