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Contact: Paul O'NeillItems No. Item
Appointment of Chairman
RESOLVED – That Councillor Slaughter be appointed as Chairman of the Sub-Committee for the meeting.
Apologies for Absence
No apologies for absence were received.
Minutes: To Follow
Disclosures and Dispensations PDF 63 KB
No disclosures were made.
Standing Order 65(6) PDF 41 KB
No items under Standing Order 65(6)
- Appx A, item 6. PDF 192 KB
- Appx B, item 6. PDF 142 KB
- Appx C, item 6. PDF 630 KB
- Appx D, item 6. PDF 189 KB
- Appx E, item 6. PDF 498 KB
- Appx F, item 6. PDF 104 KB
- Appx G, item 6. PDF 621 KB
- Appx H, item 6. PDF 26 MB
- Appx I Human rights, item 6. PDF 50 KB
The Sub-Committee reviewed the Premises Licence in respect of TFC, 29-31 Upper Wickham Lane, Welling, Kent DA16 3AB.
Mr Clive Watts, Team Leader, Bexley Trading Standards Service, addressed the Sub-Committee referring to the Responsible Authority’s representations on page 23 of the report before them. Mr Watts told the Sub-Committee the application for the Premises Licence review had been made in the light of a failed test purchase at the premises in December 2009. He called Mr Stephen Challis, Principal Trading Standards Officer, as a witness.
Mr Challis told the Sub-Committee a test purchase operation had been undertaken on Tuesday 15 December 2009, during which a sale of four cans of Fosters lager had been made to a female test purchase volunteer aged 16 years and 41/2 months. Shortly afterwards Mr Challis had entered the premises and interviewed Mr Bulent Ozpolat, the manager on site, and Mr Emil Asenov, the member of staff who had made the sale. During the interview Mr Ozpolat said that he did not have a personal licence, and neither did Mr Asenov. Mr Ozpolat had not been able to produce the refusals book, and had not been able to operate the CCTV system to show the footage of the underage sale. During the interviews it was apparent that Mr Asenov had limited understanding of English and Mr Ozpolat had acted as interpreter.
Mr Challis told the Sub-Committee he had returned to the premises the following day to view the CCTV footage with the Designated Premises Supervisor, Mrs Turcan Ucur, and the time display on the footage of the sale did not tally with the actual time of the event. It was one hour out, however this may been due to the clocks being changed for summer time. Mrs Ucur had also produced the refusals book. Nineteen refusals had been recorded between 9 November 2008 and 1 November 2009, and none had been logged between 17 December 2008 and 30 July 2009 or after 1 November 2009. Mr Challis had advised Mrs Ucur that the posters on display, as evidenced by photographs on page 51 of the Sub-Committee report, represented a breech of the licence condition relating to a clear window policy. One of the posters, relating to the sale of tobacco products and shown in photograph 3, needed to be positioned adjacent to the products on display, while the Challenge 25 poster was in order because it had been requested by the Responsible Authorities.
Mr Watts told the Sub-Committee the Premises Licence had been revoked in September 2008 following an earlier test purchase failure. He referred to the letter he had sent to the premises on 3 December 2009 warning of enforcement activities in the pre Christmas period and other advice provided to the premises, such as a “No ID, No Sale” traders advice pack.
Mr Watts said that on 15 December 2009 an underage sale had been made at the Premises and other licence conditions had been breeched, the CCTV time display was inaccurate and footage could not be provided on demand, the refusals book could not be produced and the sales assistant knew nothing about its existence. On the following day the Premises was in breech of licence conditions relating to the clear window policy and the requirement to display a poster relating to proxy purchasing of alcohol for underage people.
In these circumstances Mr Watts invited the Sub-Committee to consider revocation of the Premises Licence.
In response to questions from the Sub-Committee Mr Watts said that when asked about details of training, staff had been unable to provide details, which was in breech of a condition attached to the licence following the premises licence review in 2007. He also clarified that various advice had been given to the premises on three occasions, via the letter of 3 December 2009 advising of forthcoming enforcement activity, and visits to the premises in April and September 2008. This was in addition to advise provided by the Licensing Authority by way of news letters and seminars.
In response to questions from Miss Sarah Le Fevre, representing the Licence Holder, Mr Watts said that the CCTV system had been working at the time of the underage sale and the footage was of suitable quality, although the time display was an hour out of synchronisation. Mr Watts said there had been language issues with Mr Asenov, however with the interpretation of Mr Ozpolat he was confident that the questions had been understood and that Mr Asenov had not appeared panicked or confused. Mr Watts was content with the Challenge 25 poster displayed in the window as per photograph 5 on page 52 of the Sub-Committee report. The test purchase that had led to the Premises Licence review in September 2008 had taken place in July 2008.
PC Eddy Boston addressed the Licensing Sub-Committee on behalf of the Metropolitan Police, referring to the Responsible Authority’s representations on page 31 of the report before them.
PC Boston said he supported the stance of Bexley Trading Standards. There had been a previous Premises Licence review in 2008 in the wake of two failed test purchases. There had been visits to the premises and both members of staff involved in the underage sales had subsequently been dismissed. PC Boston told the Sub-Committee he had issued a fixed penalty notice to the person who had made the latest underage sale, Mr Asenov, and had noticed his limited command of English and an even more limited knowledge of licensing responsibilities. It was a concern to Police that placing staff with a very limited understanding of English on till operation might impair the ability to effectively comply with licence conditions requiring challenge to customers on age.
PC Boston said that to his knowledge there had been no problems directly outside the premises, but it was located within the Welling Saturation Zone and in close proximity to a dispersal zone. Since February 2006 Welling had featured prominently in the Borough in terms of the number of premises licence reviews, some of which had resulted in licence revocations.
In response to questions PC Boston said he was aware that three penalty notices had been issued to three separate individuals in connection with underage sales at the premises. He was aware that Mr Azenov had dual nationality, Turkish and Bulgarian. PC Boston also confirmed that he was not aware of any evidence linking the premises to any offences, and thought it was surprising that there had been no reported shop-lifting at the shop.
Mr Kevin O’Brien-Wheeler, Senior Environmental Health Officer with Bexley Environmental Health Service, addressed the Sub-Committee referring to the Responsible Authority’s representations on page 34 of the report before them. Mr O’Brien-Wheeler said the premises had already been subject to a licence review in September 2008 and by upholding the appeal against the Sub-Committee’s decision to revoke the licence, the magistrates had effectively given the premises a second chance. Despite this licence conditions had again been breeched. There had been a public safety issue in respect of an unguarded loading bay area, and although the response from the business had been slow the issue had now been resolved.
Mr O’Brien-Wheeler said he supported the recommendations of Bexley Trading Standards, however if the Sub-Committee were minded to modify the premises licence, the Responsible Authority proposed two additional licence conditions relating to the operation of a Challenge 25 policy and that all sales of alcohol be made by a personal licence holder. On the evidence of the hearing Mr O’Brien-Wheeler would also support modification relating Condition 5 on page 18 of the Sub-Committee concerning staff training.
In response to questions Mr O’Brien-Wheeler thought he may have visited the premises once in the past two years and had been an observer during one of the previous failed test purchases. He confirmed there was no other evidence directly relevant to the Responsible Authority.
Ms Lorna Mills, Neighbourhood Co-ordinator for Bexley Neighbourhood Services, addressed the Sub-Committee referring to the Responsible Authority’s representations on page 37 of the report before them. The repeated test purchase failure had undermined the Licensing Objective of protecting children from harm and the Responsible Authority supported consideration of licence revocation. Should the Sub-Committee be minded to modify the licence Ms Mills referred to three conditions proposed by the Responsible Authority, but pointed to the fact that two of these had already been imposed by magistrates at the earlier Appeal. Ms Mills supported attaching the Challenge 25 scheme as a condition of the licence.
In response to questions Ms Mills said operating the clear window policy should not preclude the display of posters required by law or as good practice. At the premises the large window frontage offered the potential to achieve a sensible balance and this could be agreed between the licence holder and Responsible Authorities.
Miss Sarah Le Fevre, representing the Licence Holder, addressed the Sub-Committee. Miss Le Fevre said she believed the case centred on the issue of underage sales and accepted that considerations would include possible revocation of the licence, but her submission would seek remedy by attaching further conditions to the licence. She said the requested CCTV footage of the test purchase sale, while not available on the evening of the test purchase itself, had been provided the following day, as had the refusals book. She also accepted that the Challenge 21 scheme had not been operated, but contended that the clear window policy was working despite the poster displays because the large window frontage allowed staff to view the outside of the shop sufficiently.
Miss Le Fevre said the Designated premises Supervisor, Mrs Turcan Ucur, was experienced and, with her husband, ran twelve such establishments across London. There had been no underage sales issues at any of the other premises. She said the Welling premises provided specialist food and drink primarily to the Turkish community and did not attract crime and disorder.
Miss Le Fevre told the Sub-Committee that shortly before the test purchase failure an experienced member of staff had left. In making the underage sale Mr Azenov had not followed procedures, but had since undergone formalised training. The refusals book had always been available at the premises and could have been provided if staff had known.
In respect of training and qualifications Miss Le Fevre referred the Sub-Committee to pages 62-65 of the report before them and signed certificates of training by two members of staff on prevention of underage sales. Where magistrates had imposed a licence condition following the Appeal requiring a personal licence holder at the premises on Friday and Saturday evenings, Miss Le Fevre said the Licence Holder was prepared to offer a condition of no sale of alcohol at any time without a personal licence holder present at the premises. She also pointed to the fact that the Challenge 21 scheme had been raised to Challenge 25.
Miss Le Fevre asked the Sub-Committee to take into account the conditions offered and action taken and drew their attention to the option of suspension of the licence as a means of allowing a period of reflection.
The Designated Premises Supervisor, Mrs Ucur, told the Sub-Committee she was at the premises during the day on Monday-Friday but not usually on Saturday or Sunday. There were 10-12 people working at the premises including those working in the bakery, and they only trained people that worked on the till. The business was on the borderline financially, so revocation of the licence would have a serious impact.
Mrs Ucur said Mr Azenov was at the till on the day of the test purchase because the company had just lost a member of staff. He had been told about the need to challenge anyone appearing to be under 21 years of age, but was inexperienced on the till. Mrs Ucur told the Sub-Committee she had administered Mr Asenov’s training and was aware he could not express himself clearly, particularly if he were under stress. She recognised there had been weaknesses in the past, but there would be a personal licence holder on the premises at all times, there would be monthly meetings of staff, and training, which would include watching a dvd produced by Licensing specialists. There would also be observation of staff and regular checks of the refusals book.
In response to questions Mrs Ucur said a till prompt system in respect of alcohol products was not in operation at the premises, but they would consider introducing such a system within a week if necessary. She said because the premises was not large it was quite possible to observe staff from the back of the shop. Staff training sessions lasted about 30-45 minutes. Mrs Ucur said that Mr Azenov no longer sat at the till and agreed that a good command of English was needed to make effective challenges on age. There was always someone on the premises with sufficient command of English to help.
Mrs Ucur said that the refusals book had not been made available at the time of the test purchase, because Mr Bulent had only just joined the company as a manager and should have been trained in that requirement. The book was kept under the till and she was surprised Mr Azenov hadn’t known it was there. Although regular checks were made on the book there was no analysis of refusal trends between different members of staff. The time display on the CCTV footage of the test purchase had been an hour out of synchronisation because the equipment had not been adjusted when the clocks were put back in October. Managers were supposed to know how the CCTV system worked, and would have refresher training. Till staff were not trained in its operation.
Mrs Ucur said she had worked for the company for 13 months. Her presence at the premises was mostly during the week but she made unannounced visits at weekends, when there were two managers on duty covering daytime and evenings. Only personal licence holders could authorise the sale of alcohol, which Mrs Ucur said were primarily Turkish alcohol products. They would be prepared to consider the non stocking of alcohol products such as alco-pops.
The Sub-Committee asked whether the signed record of Mr Azenov’s training record was available. The meeting was adjourned from 12.00pm – 12.30pm to allow the Licence Holder to retrieve the record from the premises.
On re-convening, those present were shown the staff training records. The Sub-Committee was concerned that the documents were not originals and there appeared to be a discrepancy in date order of entries and some photocopying inconsistencies. Mrs Ucur told the Sub-Committee she wished to correct an earlier impression and that the premises did in fact have a till prompt system which was installed in December 2009.
Summing up, Mr Watts told the Sub-Committee the underage sale had been made in December 2009 despite the previous licence review and guidance given. Because there was little evidence of lessons having been learnt from past events, Mr Watts had limited confidence that management could be relied upon to comply with licence conditions in future.
PC Boston said the Police stance was similar to that of Bexley Trading Standards. The premises had failed test purchases in 2007, 2008 and 2009 and was located in a problem area. The Police were asking the Sub-Committee for any measures they considered necessary and proportionate.
Mr O’Brien-Wheeler said he agreed with the other Responsible Authorities, and referred to their proposed conditions should the Sub-Committee be minded to modify the licence.
Ms Mills said she was concerned about the protection of children from harm and suggested revocation of the licence as an appropriate course of action. If so minded the Sub-Committee could consider modifying the licence with the proposed licence conditions.
Miss Le Fevre summed up on behalf of the Licence Holder accepting the seriousness of the underage sale in December 2009. Steps had been taken, a till prompt system was in place, Challenge 25 could be operated and further conditions as discussed were acceptable. In the circumstances Miss Le Fevre’s submission was that the issues could be dealt with during a limited suspension of the licence.
Members of the Licensing Sub-Committee have undertaken a review of the Premises Licence granted under the Licensing Act 2003 to TFC Welling Limited in respect of the premises known as TFC situated at 29-31 Upper Wickham Lane, Welling, Kent DA16 3AB and in reaching a decision have considered:
The information set out in
the written report
· The further evidence heard from the Responsible Authorities and their witness
· The further evidence on behalf of the licence holder and their witness including the offering of certain conditions
· The Council’s Statement of Licensing Policy
· The Statutory Guidance of the Secretary of State
After taking into account the licensing objectives and all relevant considerations the Sub-Committee has decided to take the following step: -
· To revoke the licence
The reason for the decision is that alcohol was sold to a test purchaser aged 16 years of age. The test purchaser was not asked her age or for proof of age despite there being a Challenge 21 condition on the licence. In addition it emerged that the seller of the alcohol was not aware of the existence of the refusals book and the CCTV system was not showing the correct time of the recordings, both of which were breaches of the licence conditions. The seller also stated that he had not been trained in alcohol sales and the Challenge 21 scheme, although this was contested by the licence holder. Furthermore no-one on the premises was able to provide a copy of the CCTV footage immediately to the trading standards officer. There have been previous under age sales from these premises and the Sub-Committee have previously revoked the licence, but it was re-instated on appeal to the Magistrates’ Court. However two of the three conditions imposed by the Magistrates’ Court were also being breached when the test purchase was made. The purpose of these conditions was to minimise the possibility of future under age sales. At the time of the sale the premises were being run by inexperienced employees and the seller spoke little English. Mrs Ucur, the designated premises supervisor said the seller normally worked as a bakery assistant and had been called on to operate the till because of staff shortages. Despite this and his lack of command of English Mrs Ucur had authorised him to sell alcohol. Mrs Ucur accepted that he would have found it difficult to challenge a customer. The premises licence holder submitted in evidence training records including a training chart which appeared to the Sub-Committee to be altered. Furthermore these records contradict the verbal evidence given as to the person carrying out that training and the date of the training. The Sub-Committee has therefore given them little weight. There had been advice and assistance given by the responsible authorities and a warning letter of a test purchase operation had been sent prior to the test purchase. The Sub-Committee therefore has little confidence in the management of the premises to operate the premises within the licence conditions and promote the licensing objectives particularly the prevention of crime and disorder and the protection of children from harm. The only option available to the Sub-Committee is to revoke the licence.
The applicant, responsible authorities and the licence holder should be aware that they have the right to appeal the decision of the Sub-Committee, and that any such appeal must be made to the Bexley Magistrates Court within 21 days.
This decision does not have effect until the end of the period given for appealing against the decision or, if the decision is appealed, the time the appeal is disposed of.