Agenda item

Local Express, 500 Brixton Road, London, SW9 8EQ (Ferndale)

Minutes:

Presentation by the Licensing Officer

The Sub-Committee was informed that this was an application for a review application. The Sub-Committee’s attention was drawn to chapters 2, 3, 9, 10 and 11 of the Statutory Guidance and Sections 1, 5, 6, 7, 8, 9, 10, 11 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 paragraph 6.1 of the report on page 91 of the agenda papers.

The Licensing Officer confirmed:

 

·      This was a review application and was submitted on 23 November 2018.

·      After Police had visited the premises on 1 November 2018, it was found that one staff member did not have the right to work in the UK.

·      A copy of the CCTV footage capturing the incident that had occurred at the premises on 1 November 2018 was available for viewing at the meeting.

·      Since the publication of the agenda papers, the premises licence holder had provided to further documents for consideration.

·      Representing the applicant was PC Watson and Ms Woods.

Presentation by the applicant

 

Ms Woods and PC Watson informed the Sub-Committee that:

 

·      The basis of the review was the prevention of crime and disorder. 

·      Premises staff had sold alcohol to underage persons, employed people who did not have the right to work in the UK and an individual or individual’s believed to be working at the premises had allegedly committed an assault causing grievous bodily harm.

·      Individuals working at the premises had set upon a customer with a weapon.

·      The person committing the assault was an employee at the premises.

·      Other individuals believed to be working at the premises were also in possession of weapons which could be observed on CCTV.

·      The CCTV footage showed the assault inside the premises and this footage would be submitted to the Sub-Committee for their consideration.          

The Legal Officer informed the meeting that the Police needed to consider whether or not it wished the Committee to sit in camera to consider the video footage.

 

Ms Woods informed the Sub-Committee that the full description of the events occurring on the CCTV had already been made public and therefore the hearing and viewing of the video could continue in public. However, the applicant did agree with the premises licence holder that the names of the individuals on the CCTV should not be disclosed.

 

At this point in proceedings, the Sub-Committee considered the CCTV footage submitted by the applicant.

 

Ms Woods and PC Watson informed the Sub-Committee that:

 

·      The black box in the corner of the footage demonstrated that one of the CCTV cameras in the premises was not functioning.

·      All three staff members appeared to be interacting with customers as opposed to one rogue individual staff member acting on his own.

·      The issue of the underage sale had been reported to the Lambeth legal team for further action (prosecution).

·      During the time that police had consulted with the premises licence holders, they did not feel that the premises licence needed to be revoked if certain conditions proposed by the Police were met.

·      An intervention meeting was held one week after the incident and an email was sent subsequent to that meeting informing that the premises licence holders had accepted most of the conditions. Police felt that the premises licence holders needed to accept one more condition; either to hire security staff or operate a window sales method between 00:00 – 05:00. The Police felt that one of these conditions need to be satisfied. Unfortunately, both of these proposals were refused by the premises licence holder. On this basis, it was felt that revocation of the premises licence was necessary.

·      If security staff was to be hired at the premises, then they would be able to intervene when dealing with difficult customers as premises staff had already proven unable to do so.

·      The proposal of the window barrier was to protect both the premises staff and customers via a physical barrier.

·      The premises licence holders had not addressed the issue of underage sales and had not addressed the issue of employing individuals without the right to work in the UK.

·      The premises licence holder had initially stated that the two people involved in the incident were members of staff and had provided their details. However, in more recent accounts he had said that they were not members of staff. In either case, incorrect information had been provided to the Police.

·      It was understood the manager who was working at the premises on 1 November 2018 had left the premises leaving one staff member and two friends in the premises. This was a breach of the premises licence.

·      The premises licence holders had minimised the incident of 1 November 2018 by calling it a ‘private scuffle’.

·      The staff member guilty of selling alcohol to an underage person had not been dismissed and the premises licence holders appeared to have rejected the accounts of those involved with the test purchase.

·      Although the premises licence holders maintained that the CCTV monitoring the outside area wasworking, it could be observed from the CCTV footage submitted at the Sub-Committee that it was not.

·      Investigating officers at the premises at the time of the incident were told that the external camera was not working.If this was not true, then this was a more serious breach than if the CCTV was simply not working.

·      If the footage was recorded then footage required by the Police had been withheld by the premises licence holders. This was a breach of the licensing conditions

·      The premises licence holders had informed at the intervention meeting that the CCTV was not working but then later changed their account.

·      They would apply to revoke the premises licence.

 

In response to questions from Members, Ms Woods informed the Sub-Committee that:

 

·      She could not state how many CCTV cameras in total were working, but the officer investigating the premises at the time was told that the CCTV for the outside area was not working. The premises licence holders also told officers at the intervention meeting that CCTV was not working.

·      Although the use of window sales procedure would eliminate the potential of customers walking into the premises, it would not address the concern of the sale of alcohol to an underage person, address the issue of employing someone who did not have the right to work in the UK or the instances of criminality.

·      The use of the Challenge 25 policy was already part of the conditions of the premises licence in addition to staff training. However if the Sub-Committee felt that the condition simply need to be reapplied then it should note that the Police had no faith in the applicant’s ability to uphold the licensing objectives as they had no faith in the applicants to uphold the licensing conditions.

·      The employment of an individual without the right to work in the UK was a serious matter that needed to be taken into account by the Sub-Committee.

·      The premises did not appear to have many problems prior to the end of last year, but now there now appeared to be an issue of underage sales and instances of criminality.

 

Presentation from interested parties

 

Ms Bina Patel, Licensing Manager, informed the Sub-Committee that:

 

·      She concurred with the applicant.

·      A serious offence had taken place at the premises.

·      There were fundamental failings with regard to the upholding of the licensing objectives, including conditions of the licence.

·      The CCTV footage should show process staff complying with the requirements of the licence, this included having working CCTV at the premises.

·      The premises licence holders had stated that the CCTV at the premises was not working but the CCTV from the inside area had been provided.

·      The premises licence holder had a duty to check the CCTV and write any incidents into the incident diary however this had not occurred.

·      The premises staff had failed the test purchase.

·      To employ an individual who did not have the right to work in the UK was against the Immigration Act.

·      The premises licence holder failed to uphold the Challenge 25 policy on the basis of the failure of the test purchase.

·      She supported the application to revoke the premises licence, as despite having a meeting with the premises licence holders, they did not appear to be agreement reached between all the parties.

·      The premises licence holders had appeared to change a previous account with regard to the recollection of the sequence of events that have occurred regarding the incident on 1 November 2018.

·      The Sub-Committee should consider revoking the premises licence.

 

In response to questions from Members, Ms Patel informed the Sub-Committee that:

 

·      Responsible authorities had been informed by the premises licence holders that all three individuals involved in the incident were working at the premises. This account had been now changed to say that the only person who was not working in the premises was the individual who did not have the right to work in the UK.

·      The premises licence holder had a responsibility to employ individuals who could uphold the licensing objectives.

·      The premises licence holders did not appear to have control of the operations at the premises.

·      All individuals seen in the CCTV video appeared to be working at the premises.

·      It was the duty of the premises licence holder to ensure that the licensing objectives were met and this included employing the appropriate individuals.

·      Due to lack of resources at the Council, test purchases did not occur on a regular basis, although test purchases were also carried out by Trading Standards.

·      The test purchase on this particular occasion was carried out by Trading Standards and the Licensing team were aware that the test purchase will be carried out.

·      The premises licence holders were not responsible enough to uphold the licensing objectives. The incident relating to 1 November 2018 and its ongoing issues had been going on for a few months.

·      The Licensing team were not aware of the window service being in operation at the premises and had not seen it in use.

 

In response to questions from Members, PC Watson informed the Sub-Committee that:

 

·      He had worked nights but had never seen the window service in operation at the premises.

·      He struggled to see where a window counter could be installed.

 

 

Presentation by the premises licence holder

 

Ms Isabella Tafur, barrister representing the premises licence holders, Mr Andy Newman former Police officer, former licensing officer and licensing consultant Mr Mateen, the premises licence holder and Mr Karimi, also the premises licence holder (and the DPS) informed the Sub-Committee that:

 

·      The premises licence holders wished to express their horror at what they witnessed on the CCTV footage.

·      The premises licence holders recognised the seriousness and the significance of the incident that had occurred on 1 November 2018 and this was outlined in the statement made by them.

·      The premises licence holder who was involved regularly in the day-to-day operation of the business was bedridden with a back injury and therefore did not have the usual degree of attention that he would have normally.

·      The DPS was also a premises licence holder for another premises which took him away from the premises at times.

·      At the time of the incident the premises licence holders and DPS were distracted and they wanted to rectify the situation.

·      At the time of the incident, a manager was present at the premises with a single employee. The manager had a dentist appointment and asked the junior employee to close the premises after he had left.

·      Generally speaking, all employees working at premises had to be personal licence holders.  This would have been the case for the junior employee but he was sacked subsequently after the incident had occurred.

·      The other two individuals were not employees at the premises.

·      Neither the premises licence holder nor the DPS were present at the premises at the time of the incident.

·      The DPS often took decisions regarding employment of staff but some decisions were taken by the manager.The DPS was not aware who the other individuals present at the premises were.When Police had asked if there were personal licence holders present at the premises, Police had claimed that premises staff had not cooperated, this was not true, it was simply the case there was no personal licence holder present at the premises at the time. 

·      On 20 December 2018, Mr Newman had made attempts to communicate with PC Watson and the Licensing Officer.

·      They were surprised that revocation of the premises licence was considered appropriate by the applicant as there had been regular contact between all parties.

·      Mr Newman had been appointed to advise the license holder and how they could improve the operation at the premises.

·       A window counter had already been installed. It was a makeshift door and one of the weapons used that could be seen on the CCTV was part of the door that was used to make up the window counter. A new door had been installed which allowed the door to transform into a window counter.

·      Since the incident had occurred, staff members had started wearing body cameras.

·      Mr Newman had attended the premises and had trained members on how to uphold the licensing objectives, including the challenge 25 policy and ways of defusing difficult situations.

·      All CCTV cameras at the premises had been checked.

·      A log was kept at the premises but it was believed that an incident book had previously been kept at the premises.

·      All of the conditions that had been suggested by the Police had been accepted with the exception of one which was the condition regarding windows sales and/or the condition regarding the use of SIA staff.

·      The premises licence holder felt that the employment of security staff was inappropriate for a premises of this nature.

·      The premises licence holder also felt it was difficult to implement the condition regarding window counter as a lot of the trade at the premises was derived from footfall throughout the weekend.

·      Many customers browsed the premises and brought items.

·      Since 2012, the premises had been managed by the same premises licence holders. Both the premises licence holder and the DPS had managed the premises for the last six years.

·      On busy nights there were more outdoor street drinkers in the area. There would also be more people loitering outside the premises.

·      The incident had taken place on a Wednesday night and the premises licence holder operated the windows sales counter between Mondays and Wednesdays.

·      Another premises five doors down had instigated a window-counter-only sales business model and the business had folded.

·      Rent and business rates were high and margins were tight and the premises licence holder was concerned that this may be the difference between success and failure.

·      Other conditions had been suggested and a premises licence holder was happy to agree these.

·      Although the premises licence holder preferred the imposition of a condition for window sales over revocation, the imposition of the condition for the windows sales was not appropriate or proportionate.

·      The premises had been previously checked by the Licensing team and the premises licence holder had letters from the Licensing department informing them that they were doing well.

·      The Police had also stated that the premises was generally well-managed.

·      It was the same premises licence holder and the same DPS who had managed the premises well until the end of last year.

·      The premises had operated six years without incident.

·      The incident of the underage sale was in April 2018 (this statement was later clarified as an error – the incident occurred in August 2018).

·      The sale had resulted in the seller receiving a PND which the Licenses had assumed was the end of the matter as far as they were concerned.

·      The premises licence holder was surprised when a new incident had taken place at the premises.

·      In any case, the premises operated a challenge 25 policy. Almost all of the staff working at the premises were personal licence holders and the incident regarding the sale was simply a one off mistake. The employee in question had been distracted and although his actions were unacceptable, he still had a good track record generally.

·      The premises operated on a 24-hour basis and was located in a sometimes challenging area.

·      The body language of the victim could be observed from the CCTV. The individual was known to staff members and he had shoplifted at the premises before and had attempted to do so on this occasion. Police reports suggested that he was too drunk to provide a statement at the time and whilst they said he was not aggressive it was quite clear that he was taller than the person asking him to leave the premises and had elbowed him. This did not justify what happened at the premises on 1 November 2018 but it was important to outline the facts.

·      In relation to the alleged employee who did not have the right to work in the UK, the person was believed to have never been employed at the premises.

·      Checks were always undertaken with regard to any prospective employees to ensure that they did have the right to work in UK and this was always verified.

·      The statement made by premises licence holders was submitted on 22 December 2018, not at this meeting, and any issues regarding to the statement could have been raised with Mr Newman previously.

 

In response to question from Members, Ms Taffour, Mr Newman, Mr Mateen and Mr Karimi informed the Sub-Committee that:

 

·      One of the individuals observed in the CCTV footage did not have the right to work in the UK but it was generally accepted that all three individuals could be seen behind counter at one point.

·      When the manager had left the premises (on 1 November 2018) he assumed the premises would be closed but staff continued working.

·      The individual in the CCTV footage taking a card payment was not an employee of the premises and it was against regulations to allow friends of employees to work at the premises but the individual took the payment of his own accord.

·      Although training could be provided to staff members, sometimes there may be rogue employees who may not follow the rules and that individual had been sacked.

·      The premises would usually close around 02:30 and open again at over 05:00.

·      The number of occasions when staff would be trained had increased. The staff would be made aware of the licensing objectives and how to uphold them.

·      Staff would be given refresher training every six months which would be helpful even though all the employees were mostly personal licence holders.

·      The incident at the premises was unfortunate as at the time one of the premises licence holders was unable to work.

·      Premises staff had received more training as to when the front door should be closed and that no friends would be allowed to work at premises. Staff would be retrained on the general policy in addition to how to uphold the licensing objectives.

·      The general procedure at the premises was that if the premises was not particularly busy, the manager would leave at around 02:30 and reopen at 05:00. On the day of the incident, the manager had a dentist appointment and left earlier in the day and instructed the employee to close the premises.

·      The manager had left 20 minutes before the incident and the friends had arrived just before the manager had left.

·      The friends were not paid for their visits or any assistance they had provided. They were simply visiting a friend to bring him some food.

·      There would always be two employees at the premises at any one time.

·      The premises licence holders understood that the manager leaving the premises to allow another member of staff to close the premises was a breach of the conditions, but the manager had trusted his employee to close the premises. The fact that this had not occurred was more than unfortunate and a contributing factor to the employee being sacked.

·      There were always two members of staff working at the premises on the day of the incident when this did not occur, it was a failure of the individual employee.

·      The manager had taken part in a recent training session. It has been impressed upon him that there must always be two members of adequately qualified staff present at the premises at all times the premises is open.

·      The premises had two sets of DVRs; one which recorded activities outside the premises and another which recorded activities inside premises. It was possible for any police officer to approach one of the machines (covering the outside area) using a USB device and download CCTV footage.

·      On previous occasions, there had been times when the Police wanted to download a recording from one of the cameras and had done so.

·      The Police did not need permission from the manager to get a recording of the CCTV footage from the outside camera.

·      The manager had said that he had not been asked for a recording from the exterior camera but the camera was working.

·      The CCTV footage clearly showed that the camera outside the premises was working as it was showing footage of the outside camera showing the outside pavement.

·      Those involved in the incident appeared to have told the Police that the outside camera was not working.

·      Images of CCTV footage was required to be held by the premises licence holder for 30 days.

·      The premises licence holder worked to find out the details of those who were present at the premises at the time of the incident as he was as curious as the applicant was to find out who they were.

·      The original statement from the premises licence holders was corrected on 22 December 2018.

·      During the time the Police were present at the premises, they never asked the manager for the footage from the outside CCTV camera. Police on occasion would arrive at the premises and take CCTV footage directly.

·      Although some conditions had not been met, Mr Newman had provided training to premises staff to ensure that they would in future.

·      On 14 January 2019, Mr Newman attended the premises with the premises licence holders and went through the conditions with all premises staff. The conditions were explained in detail in a step-by-step process and their importance were emphasised.

·      Explanation were given to premises staff regarding what was expected of them when responsible authorities attended the premises, including what they expected to see and what they were expected to ask.

·      Paperwork had also been discussed with premises staff and all formal records would be kept.

·      The incident that occurred at the premises was a single isolated incident. This should be put into the context of six years of good operation by the same premises licence holder.

·      The premises had never previously provided the Police or the Licensing team any cause for concern.

·      The premises licence holder accepted that premises staff had one incident of sale of alcohol to an underage person.

·      The premises licence holders took the incidents that had occurred at the premises very seriously.

·      The arrangement of friends of an employee being present at the premises were the actions of a rogue employee who had been subsequently sacked.

·      Premises staff were determined to not allow such an incident to occur again.

·      The premises staff had engaged productively with the police. There had been conversations between representatives of the premises licence holder and practices of the police.

·      Mr Newman was actively engaging in training premises staff.

·      The premises licence holder had taken every step he could to address concerns raised, assist the police and ensure that such an incident did not ever occur again.

·      It was reasonable to provide details of the actions of the victim as it was factual and the Police would say that the victim had not done anything to provoke premises staff. It was reasonable to provide accurate details of what had taken place at the premises regarding the incident.

 

The applicant recalled to address matters arising.  In response to questions from Members, Ms Woods informed the Sub-Committee that:

 

·      The manager had been asked for CCTV footage and he had said that it was broken and not functioning.

·      If Police had seen that CCTV was working, they would have been able to gain the footage themselves.

·      It was not clear why the premises licence holder would not be able to access the footage that was on the cameras as it was discussed at the intervention meeting.

·      If the premises licence holder had informed that the CCTV was not working when it was, then this would be a (more serious) breach of the premises licence.

·      The premises licence holder had informed the Police that the CCTV cameras were working on 22 December 2018, long after the footage of 1 November 2018 had been deleted from the system.

·      If the CCTV camera overlooking the outside area was not covering the appropriate area, then it would be the case that the CCTV cameras were not functioning as they should be and therefore conditions 4 and 5 were not being met.

·      The conditions that the applicant proposed to meet went no further than meeting the already existing requirements on the premises licence.

·      The proposals made by the premises licence holder was simply a promise to meet the basic requirements.

·      It was difficult to have any faith in the premises licence holder, given the loss of control of the premises during incidents and the subsequent behaviour of premises staff and their response to the Police.

·      The Police did not have any faith that the premises licence holder would be able to maintain control of the premises or inform the Police if they were failing to meet the required standards.

·      None of the remedial measures were designed to address the breakdown of control that had occurred at the premises.

·      There were disagreements between the Police and premises licence holders with regard to who could be seen in the CCTV footage and who was and was not employed at the premises.

·      At intervention meeting the premises licence holder had provided the names of all the individuals in the CCTV footage except for one individual in the CCTV footage (dressed in grey) as he had said that he did not know him.

·      One individual (the man wearing a hat in CCTV footage) had phoned PC Watson on 7 November 2018, 45 minutes after the intervention meeting and had informed him that he was an employee of the premises.

At this point in the proceedings, the premises licence holders and their representatives stated that he did not have any knowledge of this phone call.

 

In response to further questions from Members, Ms Woods informed the Sub-Committee that:

 

·      The individual that could be found in the CCTV footage wearing a striped shirt had been arrested as an over-stayer.

·      The account given to the Sub-Committee; that the manager had instructed employees to close the premises after he had left the premises, had not been told to the Police before.

·      Police had not received the statement made by the premises licence holders on 22 December 2018.

·      No request had been made for a meeting by the premises licence holder.

·      The underage sale had taken place in August 2018, not April 2018.

·      There had been a breakdown of control at the premises.

·      The premises licence holder could not be trusted and therefore the premises licence should be revoked.

 

Adjournment and Decision

At 10:23pm, the Sub-Committee withdrew from the meeting together with the Legal adviser and clerk to deliberate in private. The Sub-Committee had heard and considered representations from all those who spoke.

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 application and revoke the licence.

RESOLVED: To grant the review application and revoke the licence.

Announcement of Decision

Members returned to the meeting and the Chair informed those present of the decision to grant the application subject to conditions. The Sub-Committee had carefully considered all the representations made and had decided to grant the review application and revoke the licence. Full written reasons would be provided in five working days. 

 

Supporting documents: