The Director of Neighbourhood and Environmental Services submits a report.
The Director of Neighbourhood and Environmental Services submitted a report on an application for the review of an existing premises licence.
The Premises Licence Holder (PLH) / Designated Premises Supervisor (DPS) was present, accompanied by his wife and a translator provided by Leicester City Council. Mr David Braithwaite, Deputy Licensing Manager for Leicestershire Police was present accompanied by Ms Minaxi Patel, Trading Standards Officer, Neighbourhood and Environmental Services. Also present was the Licensing Team Manager (Policy and Applications) and the Legal Adviser to the Sub-Committee.
The Licensing Team Manager (Policy and Applications) presented the report. It was noted a review application was received on 15 September 2021 from Leicestershire Police on the grounds of the prevention of crime and disorder, public safety and the protection of children from harm. It was further noted that representations from 18 patrons of the store were received between 19-28 September 2021 in support of the premises.
Mr Braithwaite was given the opportunity to outline the details of the Police representation and answered questions from Members.
Ms Patel was given the opportunity to outline the details of the report from Trading Standards in support of the Police representation and answered questions from Members.
The PLH/DPS through the translator and his wife was given the opportunity to address the Sub-Committee and answered questions from the Police, Trading Standards Officer and Members.
The meeting was adjourned at 11.24am for a five-minute comfort break.
On reconvening, all parties present were then given the opportunity to sum up their positions and make any final comments.
The Sub-Committee received legal advice from the Legal Adviser to the Sub-Committee in the presence of all those present and were advised of the options available to them in making their decision. The Sub-Committee were also advised of the relevant policy and statutory guidance that needed to be taken into account when making their decision.
In reaching their decision, Members felt they should deliberate in private on the basis that this was in the public interest, and as such outweighed the public interest of their deliberation taking place with the parties represented present, in accordance with the Licensing Act 2003 (Hearings) Regulations 2005.
The Chair announced that the decision and reasons would be publicly announced in writing within five working days. The Chair informed the meeting that the Legal Adviser to the Sub-Committee would be called back to give advice on the wording of the decision.
The Chair then informed the meeting that all but the Democratic Support Officers should withdraw from the room. The Sub-Committee then deliberated in private to consider their decision.
The Sub-Committee recalled the Legal Adviser to the Sub-Committee to give advice on the wording of the decision.
That the premises licence be REVOKED.
In reaching their decision, Members of the Sub-Committee carefully considered the committee report presented by the Licensing Team Manager (Policy and Applications), all representations made by Leicestershire Police in support of the Application for a Review, the report from the Trading Standards Officer, the representation made by the PLH/DPS and the legal advice given during the hearing.
The Sub-Committee had been asked to determine an application for the review of the premises licence. When considering the application, the licensing objectives were of paramount concern. The Sub-Committee considered the review application on its own merits and in accordance with the licensing authority’s Statement of Licensing Policy and statutory guidance issued under S.182 of the Licensing Act 2003.
The current licensable activities which were the subject of the review were set out in paragraph 5.2 of Licensing report presented to the Sub-Committee.
Members were informed Leicestershire Police made an application to review the premises licence on the basis that the PLH/DPS had failed to promote the licensing objectives of the prevention of crime and disorder, public safety and the protection of children from harm due to:
· Illegal cigarettes and tobacco being found on the premises on 2nd May 2020, 22nd May 2020 and over a year later a large amount being found on 17th August 2021
· Boxes of Nitrous Oxide being found on the premises on the same dates 2nd May 2020, 22nd May 2020 and 17th August 2021
· In addition, on 17th August 2021 49 unlicensed Sildenafil Citrate tablets were found at the premises
The Sub-Committee was informed that the police visit to the premises on 17th August 2021 was prompted following intelligence received on 9th July 2021 which stated that the owner of the premises was selling alcohol and cigarettes to children. It was also noted that some of the cigarettes being sold were illegal.
The Sub-Committee was further informed that following the discovery of the illegal cigarettes and tobacco at the premises, the Police visited the PLH/DPS’s other licensed premises where they found 205 boxes of illegal cigarettes and tobacco.
The review application was supported by three witness statements from Police Officers, a witness statement from the Council’s Trading Standards officer and two statements from the Medicines and Healthcare products Regulatory Agency (MHRA).
The PLH/DPS attended the hearing together with his wife. An interpreter had been arranged for the hearing however the PLH/DPS preferred to make his representation through his wife and the interpreter was subsequently discharged.
The Sub-Committee heard the PLH/DPS opposed the grounds for review. He had not disputed the presence of illegal cigarettes and tobacco at both licensed premises nor did he dispute the presence of the boxes of Nitrous Oxide or the 49 unlicensed tablets of Sildenafil Citrate. During the hearing he stated that all of the cigarettes and tobacco found at both premises were for his personal use and that he kept them under the counter at both premises because he had limited storage space. He stated that he could not store them at home as his wife did not want them there and they got into arguments about his smoking.
The PLH/DPS repeatedly denied knowing that the cigarettes and tobacco he had purchased from a man visiting his shop were illegal despite the packaging being completely different from UK packaging and despite the packages being marked with stickers such as ‘only for sale in Ghana’. The PLH/DPS did not think it strange that he was paying £1 to £2 per box when the UK price was upwards of £10, and this was despite the PLH/DPS going to wholesalers on a weekly basis to buy cigarettes which were compliant with UK regulations.
In relation to the boxes of Nitrous Oxide, the PLH/DPS stated that these were for legitimate catering purposes and that he required customers to sign a disclaimer to this effect on each occasion a purchase was made. He also stated that the Police had not removed all of boxes of Nitrous Oxide and that their presence on subsequent visits was from the original order. The Sub-Committee were further informed the Sildenafil Citrate tablets belonged to a friend who had left them in his premises.
The Sub-Committee heard that letters in support of the PLH/DPS had been submitted from 18 customers, many of whom vouched for the level of service provided by the PLH/DPS and the support he provided to the local community. Three letters from customers referred to the strict procedures adopted by the PLH/DPS to prevent underage sales of alcohol and cigarettes. Customers also referred to the PLH/DPS suffering hardship through burglaries and loss of money.
The Sub-Committee Members confirmed that they had not taken anything put before them on face value and had spent a great deal of time scrutinising the evidence in detail and with due rigour. Members had carefully considered each of the options available to them as outlined during the hearing.
As a result of what the Sub-Committee heard, it was satisfied that the representations by the Police engaged three of the four licensing objectives and it concluded that it was appropriate and proportionate in light of licensing objectives to REVOKE the licence
REASONS FOR THE DECISION
1. The Sub-Committee believed that the cause or causes of the concerns which gave rise to the application for review was the discovery of illegal cigarettes and tobacco, Nitrous Oxide cannisters and unlicensed Sildenafil Citrate tablets.
2. The Sub-Committee accepted the evidence of the Trading Standards Officer to the effect that cigarettes and tobacco found at both premises were illegal due to UK duty not being paid and due to the products not complying with the Tobacco and Related Products Regulations 2016 and the Standardised Packaging of Tobacco Regulations 2015. The Sub-Committee acknowledged the impact of counterfeit cigarettes and tobacco on public health and to the involvement of organised crime in its supply.
3. The Sub-Committee had taken note of the intelligence report dated 9th July 2021 stating that alcohol and cigarettes were being sold to children and that illegal cigarettes were being sold. The Sub-Committee found no direct evidence regarding sale of those items to those underage and noted the information from three customers stating that they had witnessed the PLH/DPS adopting strict procedures to prevent underage sales of alcohol and cigarettes. However, the intelligence report regarding illegal cigarettes was proved true when the police visited the premises on 17th August 2021 and the PLH/DPS’s other premises on 14th September 2021.
4. The Sub-Committee did not believe the PLH/DPSwhen he stated that he did not know that the cigarettes and tobacco which he purchased from a man coming to his shop were illegal. The Sub-Committee found that illegal cigarettes and tobacco were being stored at both premises.
6. Having carefully evaluated all of the information and evidence before it, the Sub-Committee accepted the representations put forward by the Police that that the PLH/DPS had failed to uphold the licensing objectives particularly that relating to the prevention of crime and disorder.
7. The Sub-Committee reminded itself of the statutory guidance relating to a review which urged it to, as far as possible, seek to establish the cause or causes of the concerns identified by the Police’s representation and that having done that any remedial action should be directed at those causes and should always be no more than an appropriate and proportionate response to address the causes. However, where criminal activity was alleged, as was the case, wider public policy considerations came into play and the furtherance of the licensing objective engaged included the prevention of crime. In those circumstances, deterrence by way of a revocation, was an appropriate objective and one contemplated by the guidance issued by the Secretary of State.
8. The Sub-Committee considered the statutory guidance at Paragraph 11.27 which stated that there was certain criminal activity that might arise in connection with licensed premises which should be treated particularly seriously. The examples cited included the use of the licensed premises for the sale or storage of smuggled tobacco and alcohol.
9. The sub-committee had considered the other measures, short of revocation, available to them and concluded that, in the public interest and furtherance of the licensing objectives that it was appropriate and proportionate to revoke the licence.
The PLH/DPS would be advised of the right to appeal within 21 days of being notified of the decision to the Magistrates Court.