Agenda item - Mesopotamia, 17 York Place, Brighton

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

4.1       The Panel considered a report of the Assistant Director of Public Safety regarding a review of a premises licence for Mesopotamia, 17 York Place, Brighton, BN1 4GU.

 

4.2       Mr Savill, Barrister representing Sussex Police, Ms Irving and Inspector Harris attended to speak on behalf of the applicant, Sussex Police. Ms MacBeth and Ms Player from Trading Standards attended to speak in favour of the review application. Mr Sengoz, the Premises Licence Holder, Mr Gok, the Designated Premises Supervisor, and Mr Dadds, Solicitor representing Mr Sengoz attended to speak against the review application. Ms Jezeril attended to act as an interpreter for Mr Sengoz.

 

4.3       The Senior Environmental Health Officer began by summarising the report and stating that Sussex Police had requested a review of the licence on the ground of Protecting Children from Harm and Prevention of Crime and Disorder. Test purchase operations had been carried out by Trading Standards between November 2008 and March 2009, and had resulted in three failed test purchase operations. The police also cited a lack of engagement with responsible authorities by the licence holder as a particular problem at this premises. As a result 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.

 

 

4.4       The Chairman asked if there were any questions about the statement of the Senior Environmental Health Officer and there were none.

 

4.5       Mr Savill began his representation on behalf of Sussex Police and stated that the conduct of the premises gave rise to serious concerns. Guidance indicated that revocation could be appropriate in cases where problems were sufficiently serious. The complete lack of engagement by the Premises Licence Holder (PLH) with the Police, and the three failed test purchases, where both alcohol and cigarettes were sold to minors, had resulted in Sussex Police determining that revocation was appropriate in this instance.

 

            Mr Savill noted that during the first failed test purchase, when questioned the member of staff who made the sale believed the test purchaser to be eighteen years old, however as the premises was operating a Challenge 21 policy the member of staff should have requested to see ID in this instance. The member of staff stated he had worked at the premises for eighteen months and had received training on underage sales once by Trading Standards.

 

            Following this incident, the Designated Premises Supervisor (DPS) was invited to attend a meeting with Trading Standards and Sussex Police, but the PLH attended with his daughter instead. At the meeting the PLH proposed to employ his daughter as a new DPS, although this had not taken place. This initial meeting was aborted early due to language difficulties, and a letter was sent to the DPS and the PLH highlighting their responsibilities with regard to underage sales of alcohol to minors, but this letter was unanswered. Another test purchase was failed and the member of staff, when challenged, stated that he was afraid to challenge customers for ID because of fear of reprisals. A further letter was written to the daughter of the PLH, who was understood to speak English, but this was also unanswered, and intelligence was received that the premises was continuing to sell alcohol to minors. A final test purchase was conducted and failed on 30 March 2009.

 

            Mr Savill stated that this was a difficult location, with several longstanding problems of alcohol related criminal behaviour in the area. The sequence of events revealed chaotic management, a lack of understanding of the premises licence conditions relating to the premises, and a lack of understanding of the laws relating to licensed premises. The lack of engagement with the Police remained a significant worry and further evidence had been received on 6 May 2009 to suggest there were ongoing problems. As such, the Police believed that revocation of the licence was necessary and appropriate.

 

4.6       The Chairman asked if there were any questions about Mr Savill’s statement from the interested parties, and Councillor Theobald asked how the Police were aware that there were ongoing problems for the premises. Inspector Harris replied that there were general problems in the London Road area related to alcohol. The London Road LAT had listed as their top issue to tackle street drinking and anti-social behaviour and the community felt the Police were not doing enough to combat anti-social behaviour in their area. Inspector Harris was confident that this premises was contributing to these problems. Mr Savill added that the premises had been constantly monitored over the past months and evidence gathered to suggest continual problems.

 

4.7       The Chairman asked how the anti-social behaviour could be attributed to this premises in particular. Inspector Harris replied that the location was very challenging and needed strong management to ensure the licensing objectives were being upheld. Ms MacBeth added that specific intelligence had been received on this premises.

 

4.8       Mr Dadds, on behalf of the PLH, asked where the incident logs for this monitoring were kept. Inspector Harris replied that the premises was not constantly watched as the Police did not have the resources to do this, but evidence logs had been gathered to support the view that there were ongoing problems.

 

4.9       Mr Dadds asked if any “Innkeeper” reports were available on this premises, and why they were not presented as evidence. Inspector Harris stated that there were Innkeeper reports available, but they had not been included in the evidence as this would make the review application very large, and was not deemed appropriate. She stated that the evidence had been referred to in Inspector Leach’s statement, which was included in the review application [for copy see minute book].

 

4.10    Mr Dadds asked if anyone had been prosecuted regarding street drinking in the area, and if so was there any connection to the establishment. Inspector Harris responded that she was unaware of any prosecutions relating to this or the establishment.

 

4.11    Mr Dadds asked if the Police had ever had any cause to seize CCTV footage at the premises and Inspector Harris responded that she did not know if this had happened in the past.

 

4.12    Mr Dadds asked Inspector Harris if she was aware that there were between 20 and 24 other licensed establishments in the immediate vicinity of premises, and that a rehabilitation centre was located close by. Inspector Harris replied that she was not specifically aware of the number of licensed establishments in that area, and noted that the rehabilitation centre was at 11 York Place.

 

4.13    Mr Dadds asked whether the interviews conducted with staff members from the premises at the Police Station were privileged documents. Inspector Harris responded that they were not conducted under caution and therefore not considered evidentiary.

 

4.14    Mr Dadds asked why the PLH had not been summonsed for underage sales of alcohol and Inspector Harris stated that the issue had been dealt with by fixed penalty notice.

 

4.15    Mr Dadds asked if it would be useful for the PLH to bring an interpreter to the Police Station if he was interviewed in the future, and Inspector Harris agreed that it would.

 

4.16    Mr Dadds asked if a Challenge 25 policy would help to reduce the risk of underage sales at the premises. Inspector Harris stated that she felt that it would, and that she was not aware of a failure from premises operating this condition.

 

4.17    Ms MacBeth, on behalf of Trading Standards began her representation and stated that three out of four recently conducted test purchase operations at the premises had failed. The member of staff who had failed the test purchase operation in February 2009 was a Personal Licence Holder and in the other two instances, the members of staff had received recent training. Trading Standards believed that these failures had resulted because of a lack of managerial control. At the time of the failures, the DPS was living in London and had no ‘hands-on’ involvement with the premises, and it was understood that the new DPS would be in the same situation, with his home address listed as Enfield.

 

It was recognised that the PLH lived above the premises, but Ms MacBeth stated that English was not the first language of the PLH and it was understood that he had difficulty understanding advice given to him in English.

 

Since the review application had been submitted, Trading Standards had continued to receive intelligence from members of the community that the premises was selling alcohol to underage children. Due to this, the failure of the DPS to be involved fully with the premises, the failure to engage with responsible authorities and difficulties with the English language, Trading Standards were fully supporting the application to revoke the premises licence.

 

4.18    The Chairman asked if there were any questions from interested parties about Ms MacBeth’s representation.

 

4.19    Councillor Older asked if Trading Standards had ever met with the Premises Licence Holder, and Ms MacBeth stated they had not.

 

4.20    Councillor Older asked if any training had been organised with Trading Standards following the failed test purchases, and Ms MacBeth confirmed that no training had been organised, and they had no contact with either the DPS or the PLH.

 

4.21    Mr Dadds asked if the intelligence gathered by Trading Standards about the premises had been maintained. Ms MacBeth confirmed that all intelligence was logged on the Uniform database.

 

4.22    Mr Dadds asked why this intelligence had not been submitted as evidence to the Panel and Ms MacBeth stated that it had been referred to in witness statements, which was felt to be satisfactory for the purposes of the panel.

 

4.23    Mr Dadds asked if Trading Standards would have more confidence in the premises if the DPS was present every day to manage the premises. Ms MacBeth stated that Trading Standards was concerned that day to day management was not currently taking place at all at the premises.

 

4.24    Mr Dadds asked if training in Turkish had been offered, and Ms MacBeth confirmed that it had.

 

4.25    Mr Dadds asked if letters from Trading Standards had been sent to the PLH in Turkish, and Ms MacBeth stated that they had not.

 

4.26    Mr Dadds asked what steps had been taken to graduate enforcement at this premises. Ms MacBeth stated that letters had been sent originally, and then meetings set up to discuss the situation, and finally the review application.

 

4.27    Mr Dadds asked Ms MacBeth to confirm that this process had not taken place in Turkish and Ms MacBeth confirmed that it had not, but they had not had any contact with the DPS of the premises either, who could speak and understand English.

 

4.28    Mr Dadds asked if a Challenge 25 policy would help alleviate concerns about the premises. Ms Macbeth stated that this would not of itself prevent underage sales of alcohol, and stronger management would be needed at the premises to enforce the condition.

 

4.29    Mr Dadds asked if the failures could simply be down to the mistakes of the individuals concerned, and asked why the PLH should be blamed for this. Ms MacBeth stated that three failures indicated a deeper problem at the premises than individual mistakes and felt it was down to lack of management.

 

4.30    Mr Savill, on behalf of Sussex Police, noted that letters had been sent to the PLH in Turkish and asked Ms MacBeth what these were for.

 

            Mr Dadds asked the Chairman if the Police were permitted to asked questions about another responsible authority’s representation.

 

The Chairman referred to the ‘Procedure for Licensing Act 2003 Sub-Committee – The Licensing Panel Section 167 (9) Review of Premises’ which states that “…all other parties may ask questions if given permission to do so by the panel…”. The Chairman confirmed the Police were given permission to ask questions of Trading Standards.

 

Mr Dadds stated that his client was receiving unequal treatment in this regard, due to the increased influence on the Panel members from the responsible authorities. The Chairman stated that the Panel Members were not influenced unduly by any party present, and confirmed that this protocol was followed for every Review Hearing. The Council had done everything possible to ensure that the PLH understood the process of the meeting so that he was fairly represented, and had a chance to rebut the case against him. Mr Dadds confirmed this was the case.

 

Ms MacBeth responded to Mr Savill’s question and stated that the letters written in Turkish had been sent by the Licensing Authority and not by Trading Standards.

 

4.31    Mr Dadds began his representation on behalf of the PLH and stated that issues at the premises were being confused with the general problems in the area. Arguments to revoke a premises licence must be relevant to the premises in question and must have evidence to prove this. General crime and disorder complaints had to be tied specifically to a premises before being used as evidence, and as there were so many licensed premises in this area, general arguments of problems on London Road were not specific and could not be considered relevant.

 

            Mr Dadds agreed that the three failed test purchases were not in dispute, but noted that birth certificates of the test purchasers had not been provided as evidence. He stated it was not the case that the PLH did not understand the Licensing Act or his responsibilities in relation to it, as he had passed his Personal Licence Holder’s test in November 2008, which was evidence of his understanding.

 

            The PLH had also arranged training for staff members, provided by Trading Standards, to ensure they understood their personal responsibilities and ensured the message was put in place at the premises. Mr Dadds stated that the PLH could not be considered responsible for the acts of other people and had taken the necessary steps to ensure due diligence in terms of his responsibilities. He accepted the seriousness of the failed test purchases, but in this instance had given members of staff the appropriate training and had ensured that the messages were clearly reinforced.

 

            Mr Dadds stated that the seller on two of the occasions had received training previously from the Trading Standards and he had very clearly stated that he understood the procedures after completing the training. The sales were made despite this training, and the Challenge 21 policy that had been put in place by the PLH to remedy this. The seller was dismissed two weeks after the second failed test purchase.

 

            Mr Dadds stated that his client was surprised and disappointed by the failed test purchases as from his point of view he had provided staff with ample training and advice regarding sales of alcohol to minors. However, as a result of these failures, the PLH had taken the extra step of creating training manuals for each member of staff, which also sets out instructions on how to deal with underage sales. Mr Dadds went on to propose the following conditions to ensure that the four licensing objectives were upheld:

 

§         Introduction of a Challenge 25 policy;

§         Training manuals given to all staff on induction, and refresher training organised after six months;

§         A refusals register to be maintained and reviewed weekly by the DPS;

§         Any DPS must speak English to an acceptable standard;

§         A Personal Licensing Holder to be present at all times during the sale of alcohol;

§         A person must be present at the premises who can speak English at all times during the sale of alcohol.

 

The conditions were intended to ensure there were no further communication problems at the premises and Mr Dadds confirmed that his client was aware of the need to instruct an interpreter when dealing with responsible authorities in the future. However, Mr Dadds did not feel the previous breakdown in communication should be a reason for revocation of the licence and the objective of the panel should not be punishment, but about ensuring the licensing objectives were upheld. He also noted that suspension of a licence must not be disproportionately onerous in financial terms to the business.

 

The PLH had been proactive when problems occurred at the premises and Mr Dadds did not accept there had been a failure to engage with the responsible authorities. Lastly, Mr Dadds felt there had been a lack of evidence present at the meeting and any intelligence that had been relied upon should be available to all parties for inspection. The day to day management of the premises had changed and steps taken to ensure the licensing objectives would be upheld, and because of this, Mr Dadds did not feel revocation was necessary or proportionate.

 

4.32    The Chairman asked if there were any questions about Mr Dadds’ representation, and asked who the previous DPS was. Mr Dadds replied that although the previous DPS had worked shifts at the premises on a regular basis, it was felt his conduct was not acceptable and he had been dismissed.

 

4.33    The Chairman asked if the new DPS would be spending a significant amount of time at the premises and whether he had any experience and Mr Dadds stated that he was completely aware of the situation and would be in attendance five days a week. Mr Gok, the new DPS, replied that he had previously worked at other off-licence establishments and was very aware of the need to rectify the problems at this establishment.

 

4.34    The Chairman asked how the PLH challenged customers for ID and Mr Dadds confirmed that he was able to do this in English.

 

4.35    The Chairman asked what action the PLH had taken after the incidents to ensure matters were put right. Mr Dadds stated that mistakes could occur in even the most successfully run operations and the PLH had ensured that current employees would be fired if they were caught serving alcohol to underage people. He was also assisted by his daughter, who had passed her Personal Licence training in 2008. Mr Dadds confirmed that excellent training was arranged for staff after the incidents and the Challenge 25 policy introduced and enforced.

 

4.36    Councillor Older asked who would be responsible for the premises when the DPS was not available. Mr Dadds stated that the PLH was available when the DPS was not, but that the DPS was mainly a point of contact for authorities rather than responsible for day to day management of the premises.

 

4.37    Councillor Older asked if high strength alcohol would be served at the premises. Mr Dadds stated that his client had agreed to put any high strength larger and spirits behind the counter, which would help staff to realise they were selling a different kind of alcohol and ensure checking of IDs. This would also help to alleviate the problem of proxy sales.

 

4.38    Councillor Older stated she was worried that staff at the establishment would be familiar with street drinkers and serve them alcohol because they were not confident enough to ask for ID. Mr Dadds confirmed that street drinkers did congregate near to the premises but he asserted that the PLH did not allow sales to street drinkers.

 

4.39    Councillor Mrs Theobald asked when the DPS would be at the establishment and Mr Dadds replied that it would change depending on the shift, but there was a suggested condition for a Personal Licence Holder to be present at all times during the sale of alcohol which the PLH was happy to agree to.

 

4.40    Councillor Mrs Theobald noticed that there had only been five entries into the refusals book for the period January to April and asked if this was truly representative for the area. Mr Dadds agreed that there would normally be more entries for this area, which was why a condition had been suggested for the DPS to monitor and sign the refusals book weekly to ensure it was being used correctly.

 

4.41    Mr Savill asked how the PLH knew Mr Gok, the new DPS. Mr Dadds did not feel this question was relevant to the application as the DPS had already been approved by the Police.

 

4.42    Mr Savill asked why the PLH had only agreed to the proposed conditions on the date of the Panel meeting and why an agreement could not be reached previously to this. Mr Dadds acknowledged that an agreement beforehand would have been helpful, but felt that his client was entitled to suggest conditions at any point in the process and should not be penalised for doing so. Mr Savill suggested that it demonstrated a lack of engagement from the PLH, but Mr Dadds stated that the PLH had engaged with the Police last year, although agreed that language had been a barrier to success.

 

4.43    Mr Savill asked why the PLH had not responded to the letters written to him in Turkish. Mr Dadds stated that he was unsure where the letters had been posted and that the PLH had not had sight of these letters.

 

4.44    Mr Savill asked why an interpreter had only been hired in May 2009 when the review application had been submitted at the end of October 2008. Mr Dadds declined to answer the question as he did not feel it was relevant to the application.

 

4.45    Mr Savill asked what steps the PLH had taken to familiarise himself with Brighton & Hove Licensing Policy. Mr Dadds confirmed that he had attended training organised by Trading Standards and also considered the policy when studying for his Personal Licence Holder certificate in October 2008.

 

4.46    Ms Player asked who had drawn up the training manuals for staff and Mr Dadds confirmed that he had, in conjunction with the Licensing Agent hired by the PLH. Ms Player asked if it was a generic document, not tailored to the establishment, and Mr Dadds replied that elements had been tailored and that staff members were required to sign to state they understood the contents.

 

4.47    Ms Player asked who was responsible for checking and establishing the training requirements for staff. Mr Dadds stated that this would be the responsibility of the DPS.

 

4.48    Ms Player was concerned that the training so far given was not specifically related to underage sales of alcohol, which was a particular problem at this establishment. Mr Dadds stated that the PLH and his daughter had been on Personal Licence training and other staff had received training equivalent to BII standards, which had been conducted in Turkish and English.

 

4.49    Ms Player stated that she was concerned the PLH did not have enough English to successfully challenge customers for ID, but Mr Dadds denied this.

 

4.50    The Senior Environmental Health Officer began his final statement and highlighted the options available to the Panel including modification of the licence; exclusion of a licensable activity; removal of the DPS; suspension of the licence for a period not longer than three months; or revocation of the licence. He referred to the recent DCMS guidance ‘Problem Premises on Probation’, which contains a list of suggested tough conditions for premises where problems persisted.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.

 

4.51    Mr Savill began his final representation and stated that this was a very serious case, which was not based on generalities, but on the fact of three failed test purchases. There were already reported troubles with alcohol-related problems in this area and the Police expected establishments to take reasonable precautions to ensure they were not contributing to these problems.

 

            Mr Savill stated that the licensing objectives were not being upheld, and although the location of the premises was challenging, this was not a reason to disregard the objectives. There had been continued evidence of problems with sales of alcohol to underage people at the premises and Trading Standards rated the establishment as a high risk. Sussex Police had made numerous attempts to engage with the PLH and to work with the management, but this had not transpired.

 

            The Police had no confidence in the management of the establishment and felt the proposed conditions from the PLH reflected the mismanagement of the premises. Therefore the Police asked the Panel to consider revoking the premises Licence.

 

4.52    Trading Standards had no further representation to make but agreed with the representations from Sussex Police.

 

4.53    Mr Dadds began his final representation and stated that the Police had a duty to provide evidence if relied upon in an application as the PLH was entitled to see it and rebut it where necessary. The PLH did not accept that many of the statements from the Police were true and felt the establishment was well run. The seriousness of the three failed test purchases was recognised but there were outstanding issues over the ages of the test purchasers. In each case however steps had been taken to rectify the problems, which were appropriate and in accordance with Licensing policy. A Licensing Agent had been instructed, the DPS had been replaced, English speakers were placed in the premises, appropriate signage had been hung and extra conditions considered, which was evidence that the PLH was a responsible manager.

 

            Mr Dadds agreed that there were communication problems with the responsible authorities, and the PLH was seeking to remedy this problem. The evidence suggested that the PLH had acted responsibly throughout, but could not ultimately be responsible for the actions of individuals, who had received the appropriate amount of training.

 

            Mr Dadds did not feel the communication problems at the premises were a good enough reason to revoke the licence and asked for extra conditions as proposed to be considered, to ensure the licensing objectives were upheld.

 

4.54    The panel have decided to take the following action in respect of the review:

 

The panel feel that there had been a serious breakdown in the management of these premises. The previous DPS, who did not fulfil his duties, and the Premises Licence Holder, who did not manage this premises to ensure that the licensing objectives were met, were both inadequate.

 

The panel also feel very concerned and are mindful about the area in which the premises are situated, especially in regard to alcohol related crime and disorder. As such the panel feels that all premises in this area need to be extra vigilant in the monitoring of alcohol sales.

 

Further, the panel feel that to uphold the licensing objectives of Protection of Children from Harm and Prevention of Crime and Disorder, and in the interests of the wider community, that this licence should be suspended for three months to allow the management and the new DPS time to engage with the local Licensing Authority, Trading Standards, and Sussex Police for advice on additional training to the satisfaction of the Licensing Authority. We are also placing the following conditions on the premises licence:

 

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 two age-restricted sales refusals books, which shall be reviewed by the DPS at intervals of no less than four weeks and feedback given to staff as relevant. These refusals books shall be available upon request to Police staff, Local Authority staff and Trading Standards.

 

7. At all times during the sale of alcohol there shall be a staff member on site who is able to speak and understand English to an appropriate standard.