Agenda item - Three to Four, 3-4 Western Road, Hove

Report of the Assistant Director of Public Safety (copy attached).

3.1       The Panel considered a report from the Assistant Director of Public Safety regarding a review of a premises licence for Three to Four, 3-4 Western Road, Hove, BN3 1AE.

 

3.2       Mr Savill, Barrister representing Sussex Police, Ms Irving and Inspector Harris attended to make representations on behalf of the applicant, Sussex Police. Ms MacBeth and Ms Player from Trading Standards attended to make representations in favour of the review application. Ms Abou El Kheir, the Designated Premises Supervisor (DPS)/Premises Licence Holder (PLH) for the premises, and her representative, Mr Simmonds, attended the hearing to make representations against the review application.

 

3.3       The Senior Environmental Health Officer began by summarising the report and stating that a request for review of the licence had been submitted by Sussex Police on the grounds of Protection of Children from Harm and Prevention of Crime and Disorder. The premises had failed three test purchase operations conducted by Trading Standards, and Sussex Police were now seeking for the licence to be suspended for three months and for additional conditions to be attached to the licence.

 

            The Senior Environmental Health Officer informed the Panel that the options open to them were to modify the conditions of the licence; to exclude a licensable activity; to remove the Designated Premises Supervisor; to suspend the licence for a period not exceeding three months; or to revoke the licence.

 

3.4       The Chairman asked all parties if they had any questions of the statement from the Senior Environmental Health Officer. There were none.

 

3.5       Mr Savill began his representation on behalf of Sussex Police and stated that the premises had failed three test purchase operations between 9 February 2009 and 30 March 2009. He referred to guidance issued by the Department of Culture, Media and Sport regarding the Licensing Act 2003, which stated that premises that sold alcohol to minors should be considered a particularly serious problem. The Council’s Statement of Licensing Policy also supports this view.

 

            The first failed test purchase operation had taken place on 9 February 2009, with alcohol being served to a minor whilst the seller was making a phone call. No ID had been asked for, and when questioned about the incident, the seller stated that he had received no real training regarding underage sales of alcohol. A warning letter had been written on 10 February 2009 but a further failed test purchase operation had occurred on 2 March 2009. In this circumstance the seller was the daughter of the DPS/PLH. When the transaction had taken place, it was noted that the seller had called upon the assistance of another member of staff, who also failed to ask for ID. A meeting was set up after the second failure and training was arranged with Trading Standards, which took place on 19 March 2009. However, a third failed test purchase occurred on 30 March 2009, with the same member of staff from the first failed test purchase as the seller.

 

            Mr Savill stated the Police believed that the late training of staff and the failure of the premises management to enforce the messages of the training indicated a lack of responsibility and effective management of the premises. He also indicated that there were problems with the internal layout of the premises, which indicated a confused approach.

 

Mr Savill went on to say that the Police were requesting a suspension of the licence to allow an appropriate amount of time for implementation of correct procedures to be put in place before the selling of alcohol, to break the association of the premises with underage sales and to act as a deterrent to the premises management and staff in allowing such problems to continue.

 

            Further conditions were also suggested and included in the Police application. Mr Savill noted that the condition to ensure there was a DPS or Personal Licence Holder on site at all times during the sale of alcohol was a stringent condition, however, the Police felt it necessary given the history of the premises and that none of the staff currently held personal licences.

 

            Mr Savill stated that the premises was a family owned and run business and on each three occasions that a test purchase was failed, the seller had been a member of the DPS/PLH’s family. He noted that in such situations, disciplinary procedures for staff were not as rigorous as in other establishments. This gave the Police cause for concern, and as such they were requesting a suspension period to allow time for the proper procedures to be put in place and followed.

 

3.6       The Chairman asked all parties if they had any questions regarding Mr Savill’s representation.

 

3.7       Mr Simmonds asked Mr Savill to confirm that after the incident on the 30 March 2009, a mediation meeting had been requested by the DPS/PLH with the Police and Trading Standards to resolve the issues. Mr Savill confirmed that this was correct.

 

3.8       Ms MacBeth from Trading Standards began her representation and stated that the general area in which the premises was situated was well known for alcohol-related youth disorder problems. The premises had failed every test purchase, even though a sufficient amount of time had been left between each operation to allow training and procedures to be put into place. Correspondence offering advice, training and guidance had been left at the premises after each failure, and whilst the DPS/PLH had arranged for Trading Standards training to take place after the second operation, only five members of staff had been present out of approximately 10 who worked there.

 

            Ms MacBeth expressed concern that family members had failed the test purchases, as she believed it was likely these members of staff were not under the direct control of the premises management, and so properly disciplinary procedures could not take place.

 

            Methods had been suggested by Trading Standards to help staff remember to ask for ID, including a till prompt system, but the tills in the premises were unfortunately too old to be modified for this. A second suggestion from Trading Standards had been to remove the prices from the barcodes of alcoholic drinks in the establishment, in order that the staff would have to enter the prices manually. It was believed that this manual inputting would act as a prompt for staff to ask for ID.

 

It was apparent that this second suggestion had now been put in place at the premises, but Trading Standards had not been updated of the situation until the day of the Panel meeting. Ms MacBeth expressed concern however, in that it was her belief that the staff members were likely to know the prices of the products, and would be able to ring them in without pause in the selling process. She stated that Trading Standards believed the management of the premises had shown naivety in understanding the seriousness of the failures and had failed to get to grips with managing the premises properly.

 

3.9       The Chairman asked if there were any questions about Ms MacBeth’s representation.

 

3.10    Mr Simmonds asked to clarify a point about the till system and stated that that the DPS/PLH was considering purchasing a new till system that would including a till prompt, but was awaiting the outcome of the review.

 

3.11    Mr Simmonds began his representation on behalf of the DPS/PLH and noted that this was a family run business and that those members of staff who had attended the Trading Standards training were identified as those who needed it the most, and who served alcohol in the premises.

 

            The business had been in operation since 2007 and although no formal records of training had been taken, Mr Simmonds asserted that training from the DPS/PLH had taken place on a regular basis. In the view of the DPS/PLH the business had been running correctly and smoothly and the staff had not highlighted any problems regarding training or the selling of alcohol. She had been disappointed and surprised by the first failed test purchase, but had immediately organised an internal training session with staff members and a verbal warning to the staff member involved, although neither of theses were recorded. The DPS/PLH had not felt it was appropriate to escalate things further at that stage.

 

            When the second failed test purchase occurred, further internal training was organised, and the offer of training with Trading Standards was taken up. A final warning was given to staff members to ensure that they did not sell alcohol to minors in the future.

 

The DPS/PLH recognised that the third failure was a very serious mistake, but had been proactive in arranging for Mr Simmonds to act as her agent and provide her with advice and guidance on how to proceed. Further measures to prevent the selling of alcohol to minors were put in place, including introducing the Challenge 25 policy and new posters on the prevention of the sale of alcohol to minors in the premises, and the CCTV system was reviewed.

 

Further training had taken place, and four staff members were now in a position to take the Personal Licence Holder course. The member of staff who had sold alcohol to a minor on two occasions had been removed from front of house service, the till system had been reviewed, the prices of alcohol removed to aid as a prompt to staff and the Refusals Book was now being used frequently and kept up-to-date.

 

Mr Simmonds stated that the DPS/PLH still felt her actions were appropriate to the circumstances, but was ready to agree with most of the conditions suggested by Sussex Police. He felt however that the condition to require a DPS or Personal Licence Holder to be on site at all times would be difficult for the premises to comply with, as if the DPS or Personal Licence Holder needed a break or needed to leave the premises for a short amount of time, alcohol sales would have to cease for this period. He asked for the wording of the condition to be modified to allow short breaks to take place without the need for ceasing the trade of alcohol.

 

Finally, Mr Simmonds stated that the DPS/PLH had not been complacent and had acted quickly in response to each incident, and lessons had been learned to ensure that the problems did not occur again. He stated that suspension of the licence was unnecessary in this instance, and would only serve as a punishment to the establishment, which the Licensing Act guidance advised against. The establishment was now in order and running effectively and therefore there was no purpose in suspending the licence.

 

3.12    The Chairman asked what the opening hours of the premises were and Ms Abou El Kheir replied that it was open 24 hours a day.

 

3.13    The Chairman clarified that only five staff members were available to sell alcohol 24 hours a day and Mr Simmonds confirmed this, stating that at peak times two staff would be available.

 

3.14    Councillor Older expressed concern over the low number of staff available to serve alcohol. She noted also that on 30 March 2009 a staff member had stated that there was no problem with underage drinkers buying alcohol at the premises, Councillor Older asked if Ms Abou El Kheir agreed with this. Ms Abou El Kheir stated that she did, and that underage drinkers were not a particular problem for her premises. She felt that her main custom was from older people.

 

3.15    Councillor Older asked how long the staff member who failed two test purchases had been working at the premises. Ms Abou El Kheir stated that he had worked at the premises for one year.

 

3.16    Councillor Older noted that on the statement from this staff member given to Trading Standards immediately after the failed test purchase operation, he had ticked a box to indicate he received physical, verbal and racial abuse whilst performing his job. She asked if this was correct, and whether it was an indication of deeper problems at the premises. Mr Simmonds replied that they were not sure why this box had been ticked, and suggested that the staff member may not have understood the question. He also stated that customers could become abusive if refused alcohol and he had personally witnessed this at the premises.

 

3.17    Councillor Lepper asked why all the measures to prevent the sale of alcohol to minors had been put in place so recently. Mr Simmonds replied that the DPS/PLH had believed that there were no problems at the premises previously, but had taken action when the failed test purchases occurred. He felt this indicated a responsible approach to the problems, and noted that the DPS/PLH believed the actions she had taken would resolve the problems.

 

3.18    Councillor Lepper asked why the extra measures, including changing the till system and the Challenge 25 policy were not put in place after the first failed test purchase operation. Mr Simmonds replied that the DPS/PLH had taken a graduated response to the situation and escalated her measures each time the premises had failed a test purchase. He believed the premises was now in a position and at a standard to absolutely ensure that further test purchase operations would not fail. He stated that a three month suspension was inappropriate because the chain of events leading to the failures had already been broken and there were now no further problems at the premises.

 

3.19    Councillor Lepper expressed concern over the current layout of the premises, and asked if some alcohol was not in the direct line of sight of the seller. Mr Simmonds agreed that some areas of the shop were not as easily monitored as others, and the DPS/PLH had considered rearranging the shop floor, but this would be expensive and there was no evidence that shop-lifting was a problem at these premises.

 

3.20    Councillor Lepper asked Ms Abou El Kheir to confirm who had undertaken training to serve alcohol. Ms Abou El Kheir stated that five members of staff had taken the Trading Standards training, and three had taken training to allow them to take their Personal Licence Holder certificate.

 

3.21    Councillor Lepper asked what the situation would be for new staff in terms of training. Mr Simmonds stated that a proposed condition from Sussex Police covered the training of new staff, although he felt that the condition needed to include what standard the training should meet.

 

3.22    The Chairman asked if there were any questions about Mr Simmonds’ representation from the responsible authorities and interested parties.

 

3.23    Mr Savill asked which members of staff the warning letter dated 3 March 2009 was sent to. Mr Simmonds replied that it had been addressed to both members of staff who had failed the test purchase operations.

 

3.24    Mr Savill asked whether the member of staff who had failed two test purchases had undertaken Personal Licence training, and if so, when this was. Mr Simmonds confirmed that this was undertaken on 19 May 2009.

 

3.25    Mr Savill asked why this training had occurred when this member of staff was prohibited from selling alcohol on the premises. Mr Simmonds replied that this was done for staff development purposes and confirmed that it was likely that this member of staff would be selling alcohol again at some point in the future.

 

3.26    Mr Savill asked why this training was not left until the point at which it was decided to reintegrate this staff member back into the front of house team. Mr Simmonds stated that it was felt that this training would be beneficial immediately.

 

3.27    Mr Savill asked if of the four Personal Licence Holders that would be available at the premises, one of them would be the member of staff who had failed two test purchases. Mr Simmonds confirmed this.

 

3.28    Mr Savill asked if this training was an indication that this member of staff would be selling alcohol at the premises in the near future. Mr Simmonds stated that there was no proposed timescale for when this member of staff would be reintegrated into the front of house staff.

 

3.29    Mr Savill asked if the DPS/PLH was aware that this member of staff may be summonsed regarding his actions, and Mr Simmonds confirmed that she was.

 

3.30    Mr Savill stated that this member of staff had indicated after the second failed test purchase operation that he had not received any training other than the training provided by Trading Standards. He asked how this could be when the DPS/PLH had confirmed that she had give staff training before and in between the incidents. Ms Abou El Kheir stated that she believed this member of staff had been confused about what constituted training, and was indicating that he had only received formal training from Trading Standards Officers, as he did not think the in-house training she had provided qualified as training.

 

3.31    Mr Savill asked what steps the DPS/PLH took between 9 February 2009 and 30 March 2009 to prevent further sales of alcohol to minors. Mr Simmonds replied that in-house training had taken place.

 

3.32    Mr Savill asked if there was a record of this training and Ms Abou El Kheir stated that she did not have a record for this particular member of staff with her.

 

3.33    Mr Savill asked why this had not been brought to the meeting, given that this member of staff had failed the test purchase operations twice. Ms Abou El Kheir stated she did not think it was relevant as the member of staff in question was no longer serving alcohol in the shop.

 

3.34    Mr Savill noted that when questioned about training by Trading Standards Officers, the staff member had not mentioned any in-house training he had undertaken at the premises, and asked why this was. Ms Abou El Kheir replied that the staff member did not understand that her training sessions could be considered as formal training sessions.

 

3.35    Mr Savill stated that several steps had been suggested by Trading Standards Officers in their letter to the premises on 10 February 2009 to ensure that these problems did not occur again, and asked which of these steps had been taken by the DPS/PLH. Mr Simmonds replied that most had been put in place by the premises and were in operation now.

 

3.36    Mr Savill asked why the DPS/PLH had requested training from Trading Standards only after the second failed test purchase operation. Mr Simmonds replied that the letter had stated that either Trading Standards or the DPS of the premises could provide training to staff, and so the DPS/PLH had decided to conduct the training herself initially.

 

3.37    Mr Savill stated that at the mediation meeting with the Police and Trading Standards Officers, the DPS/PLH had been asked what measures had been put in place to prevent the selling of alcohol to minors, and had not mentioned any training conducted in-house. Mr Savill asked why this was and Ms Abou El Kheir replied that she was not aware this was necessary at the meeting and was not asked directly about training provided.

 

3.38    Ms MacBeth from Trading Standards asked who was currently selling alcohol at the premises. Ms Abou El Kheir replied that four family members were currently selling alcohol plus two staff members who were not family.

 

3.39    Ms MacBeth stated that five members of staff had attended the Trading Standards training, and asked who these staff were. Ms Abou El Kheir confirmed that three of the staff members who attended the Trading Standards training were not selling alcohol at the premises in question, one staff member had been removed from selling alcohol, and one was currently selling alcohol at the premises.

 

3.40    Ms MacBeth asked when the members of staff responsible for the underage sales received final warnings. Ms Abou El Kheir replied that one was issued on 10 February 2009 and one on 5 March 2009.

 

3.41    Ms MacBeth asked why the member of staff who received the final warning on 10 February 2009 continued to work in the shop, as he had again sold alcohol to a minor on 30 March. Mr Simmonds replied and stated that due to the family nature of the business, disciplinary procedures worked differently, but the member of staff had been removed from the shop floor and disciplined as appropriate.

 

3.42    Ms MacBeth asked if the DPS/PLH had attended the Trading Standards training and Ms Abou El Kheir replied she had not as she had been working at the time.

 

3.43    Ms MacBeth asked what language the training was offered in, and Ms Abou El Kheir confirmed that it was offered in both English and Turkish.

 

3.44    Ms MacBeth asked if the DPS/PLH would agree that the standard of English for some members of her staff was not good, and Ms Abou El Kheir agreed.

 

3.45    Ms MacBeth asked if the DPS/PLH was aware that test purchase operations were being carried out at other establishments in the area at that time, and that other premises had failed the operations. Ms Abou El Kheir stated that she was not aware of this.

 

3.46    The Senior Environmental Health Officer began his final statement and noted that in November 2008 the Council had adopted proposals in the DCMS guidance paper ‘Problem Premises on Probation’, which included a list of possible tough conditions to attach to licences where severe problems were occurring. He stated that the guidance was clear when referring to problem premises and revocation could be used in the first instances if the situation was sufficiently serious. The Senior Environmental Health Officer added that the Licensing Panel should seek to find out the cause of the problems and determine what action to take in response to this. The action taken should be balanced, fair and proportionate.

 

3.47    Mr Savill began his final representation and stated that the premises had failed three test purchases in less than two months. He also referred to the DCMS guidance on problem premises, but noted that in this instance the Police were not asking for revocation but firmly believed suspension was fair and proportionate. The Police lacked confidence in the DPS/PLH to run the premises properly.

 

Mr Savill recognised that some steps had been taken to rectify the problems following the hiring of Mr Simmonds as a Licensing Agent, but the Police felt it should not be up to outside agents to undertake the responsibility of raising the standards of the premises to an appropriate level. He noted there had been no substantial steps taken prior to the hiring of Mr Simmonds.

 

Mr Savill referred to a previous statement from the DPS/PLH where she stated that the premises did not have a problem with underage sales of alcohol, and felt this indicated a confused approach to the management of the premises as there was evidence to the contrary. The DPS/PLH had not mentioned internal training to Trading Standards Officers when directly asked about training undertaken by staff members. Mr Savill believed that this suggested none been conducted.

 

The prohibition on the member of staff who failed two test purchase operations was not fixed to a timescale, which suggested that he would be selling alcohol in the near future. Finally the Police did not feel there was any evidence to suggest confidence in the proper management of the premises.

 

3.48    Ms MacBeth confirmed that Trading Standards agreed in full with the conclusions of Sussex Police, and supported their application for review.

 

3.49    Mr Simmonds made his final representation and stated that training had taken place in the establishment, although it was not formally recorded. The DPS/PLH had conducted a risk assessment after each incident and put into place actions that she felt were appropriate. The DPS/PLH was happy to put into place the conditions suggested by Sussex Police, with minor amendments, but did not feel any suspension period was necessary. Mr Simmonds asked the Panel to take direct and appropriate action, and to not place an undue financial burden on the premises as a result of their decision.

 

3.50    RESOLVED – That the panel has decided to take the following action in respect of the review application:

 

Due to the seriousness of the three failed test purchases we are not confident staff who sell alcohol are sufficiently aware of the laws and regulations relating to underage sales of alcohol, therefore we have agreed to suspend the licence for six weeks to enable formal training to take place for every member of staff who may sell alcohol on the premises, and to break the association with underage alcohol sales at the premises. Furthermore, we feel that this training should not be undertaken by the DPS, but by an external body to the satisfaction of the licensing authority.

 

We also consider suspension is necessary to promote the licensing objectives of Prevention of Crime and Disorder and Protection of Children from Harm and is necessary in the interests of the wider community

 

We further agree that the conditions specified by Sussex Police be placed on the licence as follows:

 

1.      Digital CCTV and appropriate recording equipment to be installed, operated and maintained throughout the premises internally to cover all public areas with sufficient numbers of cameras as agreed with Sussex Police. CCTV footage will be stored for a minimum of 28 days, and the management will give full and immediate cooperation and technical assistance to the Police in the event that CCTV footage is requested for the prevention and detection of suspected or alleged crime. The CCTV images will record and display dates and times, and these times will be checked regularly to ensure their accuracy and will be changed when British Summer Time starts and ends.

 

2.      The DPS or a personal licence holder will be on the premises at all times that alcohol is available for sale.

 

3.      The premises will operate a Challenge 25 police whereby any person attempting to buy alcohol who appears to be under 25 will be asked for photographic ID to prove their age. The only forms of ID that will be accepted are passports, driving licences with a photograph, or Portman Group, Citizen Card or Validate proof of age cards bearing the PASS mark hologram. The list of approved forms of ID may be amended or revised with the prior written agreement of Sussex Police and the Licensing Authority without the need to amend the licence or conditions attaching to it.

 

4.      Suitable and sufficient signage advertising the Challenge 25 policy will be displayed in prominent locations in the premises.

 

5.      All staff members engaged, or to be engaged, in the selling of alcohol on the premises shall receive the following training in age-restricted sales:

 

§         Induction training which must be completed, and fully documented, prior to the sale of alcohol by the staff member, and refresher training thereafter at intervals of no less than 8 weeks.

 

§         All age-restricted sales training undertaken by staff members shall be fully documented and recorded. All training records shall be made available to Sussex Police and Brighton & Hove Trading Standards Service upon request.

 

6.      The premises shall at all times maintain and operate anage-restricted sales refusals book, which shall be reviewed by the DPS at intervals of no less than four weeks and feedback given to staff as relevant. This refusals book shall be available upon request to Police staff, Local Authority staff and Trading Standards.