Agenda item
Application by the Metropolitan Police for the review of a premises licence held by Mr Nadarajah Sivapalan for the premises known as Sidneys Off Licence, (216 Ealing Road, Wembley HA0 4QG) pursuant to the provisions of the Licensing act 2003.
Minutes:
Responsible Authority
Nick Mortimer Brent Licensing Police
Nicola McDonald Brent Licensing Police
Esther Chan Brent Environmental Health
Lavine Miller Johnson Licensing Inspector
Applicants
Eleanor Sibley Agent
NadarajahSivapalan Premises Licence Holder & DPS
Mr Merali on behalf of local residents
Decision
That the application by the Metropolitan Police for the review of a premises licence held by Mr Nadarajah Sivapalan for the premises known as Sidneys Off Licence, (216 Ealing Road, Wembley HA0 4QG) pursuant to the provisions of the Licensing act 2003 be granted with amended and additional conditions as set out in the decision notice.
The full record of the Sub-Committee’s decision and the reasons are as set out in the decision letter, set out below.
The application
The Sub-Committee has given careful consideration to an application by the Police, under section 51 of the Licensing Act 2003, to review the premises licence relating to Sidney’s Off Licence 216 Ealing Road Wembley HAO 4QS. Mr Nadarajah Sivapalan is the premises licence holder and is also the designated premises supervisor (DPS). The premises is currently licensed for the sale of alcohol and to remain open from 08:00hrs to 23:00hrs Monday to Saturday and from 10:00hrs until 22:30hrs Sunday.
In summary, the Police raised concerns about the following licensing objectives: prevention of crime and disorder, the prevention of public nuisance and the protection of children from harm. The Police concerns primarily related to the sale of alcohol to a thirteen year old child on 30 October 2015, failure to display the premises licence, lack of staff training and licensing knowledge, lack of supervision by a personal licence holder and public nuisance and anti-social behaviour generated from customers drinking in the street and nearby park.
The full details of the application made by the Police, amongst other information, is contained within the document pack attached to the Agenda for our meeting. This information is publicly available on the Council’s website and is therefore not repeated in detail in our decision notice.
The hearing
Mr Sivapalan attended the hearing and was represented by Counsel Eleanor Sibley
PC Nicola McDonald and Police Licensing Officer Nick Mortimer represented the Police.
Representations were also made by Lavine Miller-Johnson Licensing Enforcement Officer and Mr Merali on behalf of local residents
The decision
We have listened to all the representations and have read all the material.
We have had regard to the statutory guidance issued under section 182 of the Licensing Act 2003, and the Council’s own licensing policy.
We have taken into account our duty under section 17 of the Crime and Disorder Act 1998 to have due regard to the likely effect of the exercise of our discretion on, and the need to do all we reasonably can, to prevent crime and disorder in our area and the misuse of alcohol.
We confirm that in making our decision we have sought to promote the licensing objectives.
We also confirm that we have imposed further regulation only if satisfied that it was necessary, proportionate and appropriate to do so and justified on the facts of this particular case.
On the facts of this application, it is particularly noteworthy that, according to statutory guidance, we should accept all reasonable and proportionate representations made by the Police unless we have evidence that to do so would not be appropriate for the promotion of the licensing objectives. However, it remains incumbent on the Police to ensure that their representations can withstand the scrutiny to which they would be subject at a hearing.
The Police expressed concerns about the ability of the management to operate the premises responsibly under the existing licence which has no conditions attached to it. The Police informed the Sub Committee that for several years the Police and local authority officers have received complaints from residents in relation to street drinking, urinating and alcohol fuelled anti social behaviour in the vicinity of this shop and allegations that sales of alcohol form Sidney’s is contributing to this problem.
On 30 October 2015, a thirteen year old child purchased alcohol at the shop during an underage test purchase operation carried out by the Police. A Fixed Penalty Notice was issued by the Police to Mr Tivan Ramgi for the offence of selling alcohol to a person under the age of 18 under section 146 of the Licensing Act 2003.
The Police informed us that 2 officers visited the premises on 31 October 2015 and found the shop full of Asian males purchasing lottery scratch cards. The Police stated that the shop appeared to be more like a social centre that alcohol was being sold, part B only of the premises licence was on display, no personal licence holder was present and Mr Ramgi was in the shop working behind the counter. The Police told us that after identifying themselves to Mr Ramgi , he claimed not to be working and disappeared. The Police spoke to a Mr Balasubramania who was also working in the shop but appeared to have no control over the shop. Mr Balasubramania informed the Police that Mr Sivapalan was out of the country. The Police reported that Mr Balasubramania spoke limited English and had little or no licensing knowledge, that they were unable to establish whether Mr Balasubramania had delegated authority to sell alcohol on behalf of Mr Sivapalan, and therefore told him to cease alcohol sales and either remove alcohol from display or place a cover over it.
We were told that the area around the shop and nearby residential roads ie. Bowron’s and Braemar Avenue’s are littered with disused alcoholic drinking containers and that on a daily basis street drinkers can be seen consuming alcohol and urinating in the park. We were referred to a Police intelligence report created in 2015 directly relating to Ealing Road/Braemar Avenue and the area behind Sidney’s setting out incidents of anti-social behaviour associated with street drinkers.
The Police informed us that Mr Sivapalan has operated the business with no regard to the licensing objectives and that this has had a further detrimental effect in an area that already suffers from street drinking.
The Police therefore requested that the following 12 conditions be added to the licence:
1.CCTV shall be installed to Home Office Guidance standards and maintained in a good working condition and recordings shall be kept for 31 days and shall be made available to police and authorised Officers from Brent Council.
2. A CCTV camera shall be installed to cover the entrance of the premises and further cameras installed to cover the entrance of the shop.
3. A sign stating “No proof of age No sale” shall be displayed at the point of sale.
4. A “Challenge 25” Policy shall be adopted and adhered to.
5. No high strength beers lagers and ciders above 6.0% ABV shall be stocked.
6. A clear and unobstructed view into the premises shall e maintained at all times.
7. An incident log shall be kept at the premises and made available for inspection on request of an authorised officer of Brent Council or the Police which will record the following:
(a) all crimes reported to the venue
(b) any complaints received
(c) any incidents of disorder
(d) all seizures of drugs or offensive weapons
(e) any faults in the CCTV system or searching equipment or scanning equipment
(f) any refusal of the sale of alcohol
(g) any visit by a relevant authority o emergency service
8. A copy of the premises licence summary including the hours which licensable activities are permitted shall be visible from the outside of each entrance of the premises.
9. A personal licence holder fluent in English shall be present on the premises and supervise the sale of alcohol throughout the permitted hours for the sale of alcohol.
10. Outside of the hours authorised for the sale of alcohol all alcohol within the trading area is to be secured behind locked grills locked screens or locked cabinet doors so as to prevent access to the alcohol by customers or staff.
11. The following crime prevention measures be implemented:
A time delay safe with deposit slot and anti fishing mechanisms must be used in line with a cash Minimization Policy.
Regular robbery awareness and cash minimization training be given to all staff.
12. No miniature bottles of wine or spirits in units of less than 35cl should be sold at the premises.
13. No single cans or bottles of beer lager or cider shall be sold.
Ms Lavine Miller Johnson informed us that she had visited the premises on 17 December 2015 and at the time of her visit there was evidence of public nuisance and anti-social behaviour associated with the premises. At the rear of the premises it was evident that street drinkers had been congregating in/at the gated service road area drinking beers ciders and spirits. We were referred to the photographs of discarded cans, bottles and other debris in the document pack. Ms Miller-Johnson was also of the view that it was necessary for conditions in relation to the installation of CCTV and no single cans of beer or ciders as well as no high strength beers, lagers and ciders above 6% to be sold, to be added to the premises licence in order for the licensing objectives to be upheld.
Mr Merali spoke on behalf of the residents of Braemar Avenue. Mr Merali explained how the area in and around the Avenue had deteriorated and gave examples of street drinkers exposing themselves to urinate in the street and poking their private parts through gaps in fencing to urinate in the gardens, faeces found by the garden gates, fights, groups/gangs of men congregating, loitering abusing alcohol and discarded cans and bottles. Mr Merali was adamant that he and other residents had seen street drinkers enter Sidney’s and purchase alcohol which they consumed on the street. He also said that women and children felt particularly vulnerable and frightened and all the residents feared for their safety having received threats that their windows would be broken.
Eleanor Sibley addressed us on behalf of Mr Sivapalan. Ms Sibley submitted that the area in and around the Ealing Road is already identified as a ‘hot spot’ in the borough for street drinking and anti-social behaviour and that these issues are not directly related to how Mr Sivapalan carries out his licensable activities. Ms Sibley stated that there are 7 other off-licences along the Ealing Road 6 of which have the same licensed hours as Sidney’s and that alcohol could have been purchased by street drinkers from any one of these other establishments.
We confirm that in deciding the outcome of this particular review application, we have focused on the issues and complaints relating to Sidney’s Off Licence and whether it is properly managed. However, the fact that the premises is in a ‘hot spot’ and harm is being caused to the licensing objectives is clearly relevant and is the factual context within which we have to act to promote the licensing objectives. Licensing decisions are not made in a vacuum. They are made in all the circumstances of the case.
Ms Sibley pointed out that only 1 offence has been committed namely the sale of alcohol to a minor on 30 October 2015 which Mr Sivapalan takes full responsibility for, has made changes to his under-age sales policy, that he has now taken steps to comply with the majority of the conditions requested by the Police and Ms Miller Johnson and is committed to doing so. Ms Sibley explained that Mr Ramgi is a casual staff member who is called upon to assist with unloading and to work on the shop floor when the shop is busy and that both Mrs Sivapalan and Mr Balasubramaniam are authorised to sell alcohol in the shop. Ms Sibley went on to state that in view of this and in light of there being no causal link between the issues complained of, a licensing objective and the premises it would be disproportionate for the Sub Committee to impose the conditions which would constitute a breach of Mr Sivapalan’s right to property under the Human Rights Act.
Ms Sibley at paragraph 13 of her submissions refers to Sidney’s not being responsible for the issues in the area. At paragraphs 22 and 23 of her submissions Ms Sibley expressly states that the issue/s complained of must be positively linked or tied by a causal connection to the premises and she refers to case law and the Secretary of States Guidance in this respect.
We did however note that in response to questions put to him by the Sub Committee, Mr Sivapalan did agree that alcohol purchased at his premises and consumed in the street does contribute to the anti-social behaviour in the vicinity.
It was put to the Sub Committee by Ms Sibley that any condition imposed that would prevent Mr Sivapalan from selling miniature bottles of wine or spirits or single bottles of beer, lager or cider/high strength beers or ciders above 6% abv, would be disproportionate and would greatly affect his business because sales of these items generate significant revenue. The Police asked Mr Sivapalan whether he had any information/figures recording the amount of income generated from alcohol sales to which he replied no. The Sub Committee asked Mr Sivapalan to confirm the percentage of alcohol sales the business has. Mr Sivapalan seemed unable to respond. The Sub Committee then asked Mr Sivapalan whether such sales would be as high as 90% or 50% or 20%. Mr Sivapalan then said 20%. When asked how much of this 20% relates specifically to sales of high strength alcohol, Mr Sivapalan responded, smaller.
In summing up Ms Sibley said that Mr Sivapalan was happy with the vast majority of the conditions requested by the Police to be conditions on the licence however there were a few he takes issue with namely conditions 9/ 11/12.
We found that there is sufficient evidence from the Police, Licensing Authority and residents to demonstrate that sales of alcohol from the premises has contributed to the alcohol fuelled anti-social behaviour in the area.
We have therefore decided as follows:-
Conditions Agreed
1-8, 9 as amended 12 and 13 requested by the Police as set out on page 40 of the document pack be added to the licence.
Conditions Amended
We have amended condition 9 to now read - A personal licence holder and anyone to whom authority has been delegated shall have working knowledge of the English language.
Conditions not agreed
10 and 11.
We have also decided to add the following condition:
All alcohol stocked and sold shall be labelled with the name of Sidney’s.
The effective date of this decision
This decision does not take effect until the end of the period for appealing this decision or, if appropriate, the outcome of the appeal.
Right of Appeal
The parties have a right of appeal to Brent Magistrates’ Court against this decision.
If you wish to appeal you must notify Brent Magistrates’ Court within a period of 21 days starting with the day on which the Council notified you of this decision.
Dated 14 March 2016
Supporting documents:
- REVIEW REPORT - Sidneys Off Licence 216 Ealing Road Wembley, item 3. PDF 44 KB
- Sidneys Review Application, item 3. PDF 557 KB
- Sidneys Police Pics, item 3. PDF 761 KB
- Sidneys Police Pics 2, item 3. PDF 2 MB
- Sidneys - Signed witness statement, item 3. PDF 46 KB
- Sidneys - Letter from 2014 re CCTV, item 3. PDF 28 KB
- Sidneys - Licensing Rep (1), item 3. PDF 148 KB
- Sidneys - Licensing Rep - Images, item 3. PDF 219 KB
- Residents objection 1, item 3. PDF 83 KB
- Sidneys - Residents 2 Objection, item 3. PDF 45 KB
- Sidneys - Residents 2 Photo, item 3. PDF 58 KB
- Sidneys - Residents 2 Photo1, item 3. PDF 49 KB
- SidneysResidents3Objection, item 3. PDF 110 KB
- Residents objection 4, item 3. PDF 70 KB
- Residents objection 5, item 3. PDF 114 KB
- Petition cover email, item 3. PDF 91 KB
- Sidneys - Redacted petition, item 3. PDF 192 KB
- Sidneys LIcence, item 3. PDF 161 KB
- Sidneys OS Map, item 3. PDF 802 KB
- Respondent submissions, item 3. PDF 138 KB
- (1) letter mk, item 3. PDF 2 MB
- (2) photos, item 3. PDF 1 MB
- (3)-witness ns, item 3. PDF 7 MB
- 02-29-2016 (1) letter mk, item 3. PDF 2 MB
- 02-29-2016 (2) photos, item 3. PDF 1 MB
- 02-29-2016 (3)-witness ns, item 3. PDF 7 MB