Public Document Pack

LICENSING ACT SUB COMMITTEE

Date Time Venue : : : Wednesday, 28th December, 2011 10.00 am Council Chamber, Cornwall Council, 39 Penwinnick Road, St Austell, PL25 5DR

Agenda
1. 2. 3. 4. 5.

ELECTION OF CHAIRMAN FOR THE MEETING EMERGENCY EVACUATION AND DOMESTIC PROCEDURES APOLOGIES FOR ABSENCE DECLARATIONS OF INTEREST APPLICATIONS FOR CONSIDERATION
5 .1

Application for the grant of a premises licence in respect of Saltash Masonic Hall, Dunheved Road, Saltash, PL12 4BW (Pages 1 - 21) Application for review of premises licence in respect of Chy an Mor and Koola Bar, 12 Beach Road, Newquay TR7 1ES (Pages 22 - 92) Review of Premises Licence following a Closure Order under Section 161 of the Licensing Act 2003 - The Shack, 52 Bank Street, Newquay TR7 1AX (Pages 93 - 112)

5 .2

5 .3

6.

ANY OTHER BUSINESS THAT THE CHAIRMAN CONSIDERS OF URGENCY

Richard Williams Head of Legal and Democratic Services

Enquiries on this agenda to or email at licensingcommittee@cornwall.gov.uk

Cornwall Council, County Hall, Truro, Cornwall, TR1 3AY Tel: 0300 1234 100 www.cornwall.gov.uk

We want to ensure that your needs are met. If you would like this information in another format or language please contact Jeanette Jose, Democratic Services on 01872 322111 or e-mail democratic@cornwall.gov.uk.

Committee Membership Conservative (1) Eddowes Independent (2) Heywood Varney Labour (0) (None) Liberal Democrat (0) (None)

PROCEDURE FOR THE CONDUCT OF LICENSING SUB-COMMITTEE HEARINGS 1. Election of Chairman. 2. Chairman opens hearing and introduces the Members of the Sub-Committee and the Officers (and their jobs) to all parties. 3. Chairman will invite the parties present to introduce themselves. 4. Chairman will explain the Procedure to be followed to the parties including those who are entitled to speak and ensure they understand it. 5. The Licensing Service will outline the matter. At this stage Licensing will mention any conditions which have been suggested and/or agreed. 6. The Committee will consider any request made by a party (under regulation 8 (2)) for permission for another person to appear at the hearing (see note i). 7. The Applicant (or their representative) will present their application and call any witnesses. 8. Representations from the responsible Authorities from within the Council in relation to the application. 9. Representations from external responsible authorities in relation to the application. 10.Representations from other interested parties (or their representative) in relation to the application. 11.Chairman will ask if any of responsible Authorities or interested parties have anything to add. 12.Chairman and Members to ask questions of all Parties. 13.Final Submission from Applicant. Applicant has final right of reply. 14.The Sub-Committee may then seek clarification on any points raised in the final submission. 15.The Sub-Committee will then retire to obtain legal advice (see note ii). The Legal Officer and Democratic Services Officer will retire with them. 16.The Sub-Committee will, unless an adjournment or deferral is necessary, return and the Decision will be read out. NOTES: Note i - Regulation 8 (2) refers to cases where due notice has been given that a party wishes any other person (other than the person he/she intends to represent him/her at the hearing) to appear at the hearing. Note ii - Exclusion of the Public Procedure:- Paragraph 5 of Part 1 of Schedule 12A Local Government Act 1972, as amended. (Chairman will call for a proposal to exclude press and public, followed by a seconder and vote will be taken.)

PROCEDURE FOR THE CONDUCT OF LICENSING ACT SUB-COMMITTEE REVIEW APPLICATION HEARINGS
1. Election of Chairman. 2. Chairman opens hearing and introduces the Members of the Sub-Committee and the Officers (and their jobs) to all parties. 3. Chairman will invite the parties present to introduce themselves. 4. Chairman will explain the Procedure to be followed to the parties including those who are entitled to speak and ensure they understand it. 5. The Licensing Service will outline the matter. At this stage Licensing will mention any conditions which have been suggested and/or agreed. 6. The Committee will consider any request made by a party (under regulation 8 (2)) for permission for another person to appear at the hearing (see note i). 7. Representations from external authority and/or responsible authority from within the Council and/or interested party(ies) in relation to the review application. 8. The Respondent (or their representative) will present their case and call any witnesses. 9. Chairman will ask if any of responsible Authority's or interested parties have anything to add. 10. Chairman and Members to ask questions of all Parties. 11. Final Submission from Respondent. Respondent has final right of reply. 12. The Sub-Committee may then seek clarification on any points raised in the final submission. 13. The Sub Committee will then retire to obtain legal advice (see note ii). The Legal Officer and Democratic Services Officer will retire with them. 14. The Sub-Committee will, unless an adjournment or deferral is necessary, return and the Decision will be read out. NOTES: Regulation 8 (2) refers to cases where due notice has been given that a party wishes any other person (other than the person he/she intends to represent him/her at the hearing) to appear at the hearing. Note ii - Paragraph 5 of Part 1 of Schedule 12A Local Government Act 1972, as amended. Note i -

Agenda No. 5.1

Cornwall Council Not Confidential Licensing Act Sub-Committee 28 December 2011

LICENSING ACT 2003 APPLICATION FOR GRANT OF PREMISES LICENCE SALTASH MASONIC HALL
Subject of report: Licensing Act 2003 Application for the grant of a premises licence in respect of Saltash Masonic Hall, 2 Dunheved Road, Saltash, PL12 4BW Head of Public Health and Protection No

Report by: Key Decision: Recommendation:

That the Sub-Committee, following a hearing of the application in accordance with the adopted code of conduct, determine whether the application should be granted, with or without conditions and/or amendments, or refused, giving reasons for any decision reached. Summary: The application for grant of this premises licence has resulted in representations being received from Interested parties. The Sub-Committee, following a hearing of the application, must determine the application. Previous Minutes/decision number: Work Programme number: -

none

Summary of main implications: a) b) Policy Legal Licensing Act 2003 Policy Potential appeal in respect of the decision made by committee. The prospects of a successful appeal can be limited if the Committee make a reasonable decision having regard to all relevant legislation, guidance, policy and representations.

c)

Resources

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(i) (ii) (iii) (iv) d) e) f)

Finance Personnel Property Crime and Disorder Corporate Ambitions: Equalities Risks

None None None None None None Risk that decisions could undermine rather than promote the licensing objectives. Members involved in hearings have had extensive training on the legislation and procedures to be followed. Members must ensure their decisions are reasonable and proportionate, otherwise risk of legal challenge which could incur costs to the council.

Delegation: a) Existing Licensing Act sub-committee b) Required No change Background: The premises currently hold a Club Premises Certificate, which was granted on 20 December 2005. The existing Club Premises Certificate permits the following licensable activity, timings and is subject to the following conditions: SALE BY RETAIL OF ALCOHOL (for consumption on the premises only) FROM TO Monday to Saturday 11:00 23:00 HOURS PREMISES OPEN TO THE PUBLIC FROM Monday to Saturday 11:00 Prevention of Crime and Disorder Non-alcoholic and low alcohol drinks must be provided. Bottles and glasses must not be removed from the premises by members. Members and guests of the club must be over 18 years of age and no persons under age are admitted to the club or the premises. TO 23:30

Public Safety The premises are a private members club and no members of the public are admitted. Electrical and gas safety checks must be done on a yearly basis. All appropriate lighting and emergency lighting must be installed. The club previously held a club premises certificate and has complied with the requirements of the fire authority. Occupancy limits have been assessed and must be adhered to.

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Prevention of Public Nuisance The premises of the club will be open for a further half-hour for drinking up time and winding down period after the expiry of the licensing hours. The club must only supply alcohol during Masonic meetings and members will be required to leave the premises in an orderly fashion.

Protection of Children from Harm The Club is a private members club and members must be 18 years old or over. Persons under 18 years of age will not be allowed access to the premises.

Annex 3 Conditions attached after a hearing by the licensing authority Signage must be erected reminding members and guests that they should use the provided car parking facilities attached to the premises and to vacate the premises quietly. Any invitations must also stipulate these provisions

Issues: An application has been received from the Saltash Masonic Hall for the grant of a premises licence in respect of Saltash Masonic Hall, 2 Dunheved Road, Saltash, PL12 4BW. Officers have attached at Appendix 1 for Members assistance a location plan of the premises. The Club is currently licensed and seeks only to change the type of licence held. The Club are not requesting the hours of the licence be extended any later than those currently permitted, with the exception of the inclusion of Sunday. As Members are aware the granting of such a licence would mean that they are not restricted by the Licensing Act 2003 with regard to admission of club members. The premises would like to offer their facilities for the purposes of hosting, for instance, wakes. The application requests the following: SALE BY RETAIL OF ALCOHOL (for consumption on the premises only) FROM TO Monday to Saturday 10:00 23:00 Sunday 12:00 23:00 HOURS PREMISES OPEN TO THE PUBLIC FROM Monday to Saturday 10:00 Sunday 12:00

TO 23:30 23.30

The applicant intends to take the following steps to promote the four licensing objectives:

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General Carry out regular reviews of licensing objections with all staff

Prevention of Crime & Disorder None

Public Safety None

Prevention of Public Nuisance Carry out noise reduction measures at all times, including dispersal policies.

Protection of children from harm Challenge 21 policy.

Following discussions with the Chief Officer of Police the applicant has requested that the following conditions be imposed on the premises licence: General All staff shall be trained in personal and social responsibilities with a particular emphasis on safety and well being of customers, other members of staff and local residents. The prevention of crime and disorder All staff shall be trained in personal and social responsibilities with particular emphasis on underage sales and selling to persons who are already inebriated. The protection of children from harm A proof of age policy shall be in force at all times. Identification bearing a photograph e.g. passport or photo driving licence or PASS scheme ID card shall be requested for all persons appearing to be under the age of 21. A notice shall be displayed at the bar advising customers that they may be required to prove their age before purchasing alcohol. The following representations have been received in respect of the application, in relation to the licensing objective prevention of public nuisance: Name Interested Parties Representations Seven letters of representation from interested parties have been received copies of which are attached at Appendices 2 8.

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Chief Officer for Police Environmental Protection Fire Authority Health & Safety Local Planning Trading Standards Local Safeguarding Children Board

The representation attached at Appendix 8 advises that it has been sent on behalf of five residents of Dunheved House. The representation has however only been signed by four residents. None None None None None None None

A number of the representations include issues relating to parking. It is evident from representations received that parking problems in Dunheved Road are compounded by residents of neighbouring streets, who also park in Dunheved Road; parking problems may not, therefore, be wholly attributed to the applicant. As Members are aware they must decide how much weight they give to this issue when determining the application. Some representations also refer to incidents of loud music being played at the premises. The application does not seek to include regulated entertainment and Members will be aware that such issues may not be taken into consideration when determining the application. The interested parties have been advised that noise problems should be reported to the Council's Environmental Protection Team. The Licensing Authority, when considering an application, must have due regard to the guidance issued under Section 182 of the Licensing Act 2003 and to its adopted Licensing Policy. Where it is necessary to depart from the guidance or policy the licensing authority must give reasons for doing so. The aim of the licensing process is to regulate licensable activities so as to promote the following licensing objectives which are of equal importance: The prevention of crime & disorder Public safety The prevention of public nuisance The protection of children from harm In particular members attention is drawn to, but not limited to, the following extracts from the Councils statutory guidance:Statutory Guidance under Section 182 of the Licensing Act 2003:Sections 1.28 1.30, 2.1 2.18, 2.32 2.50, 8.41 8.45 Councils Licensing Act 2003 Policy Considerations:

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POLICY 2 Applicants are expected to include in their operating schedules, measures that are necessary and proportionate to promote the licensing objectives. These should include:Measures which are considered appropriate to promote public safety and the prevention of crime & disorder, or reasons why no measures are considered necessary. Measures which make adequate provision to control the adverse effects of noise, disturbance, smells, extraneous lighting, defacement of property, containment of solid and liquid waste; and in particular: Restrict the generation of noise within the premises and from activities associated with the premises in the vicinity of the premises; Limit the escape of noise from the premises; Restrict noise emissions to levels below that which could affect people in the vicinity going about their business at work and when at home. Minimise and control noise from customers arriving at the premises, outside it and departing from the premises; Minimise and control noise from staff, contractors and suppliers and their activities; Minimise and control noise from vehicles associated with and providing services to the premises and their customers. Measures that make adequate provision to protect children from harm. This will include measures to ensure that children are not permitted to access age restricted products (e.g. alcohol), and are protected from exposure to inappropriate activities or material (such as adult entertainment and advertisements in relation to such entertainment). The protection of children from harm will be taken in the widest context and may therefore include issues related to morality, psychological harm, physical harm and health related issues. This could also include Criminal Record Bureau checks and / or registration with the Independent Safeguarding Children Authority for staff or entertainers providing entertainment or activities for children. POLICY 3 The Licensing Authority will continue to work in partnership with responsible authorities and interested parties (including representatives of the licensed trade) to identify and establish best practice initiatives. Operators will be expected to participate in/with appropriate initiatives aimed at promoting the licensing objectives. REASONS: to ensure that operators / applicants take all reasonable steps to promote the licensing objectives and to achieve a balance between the interests of the licensed trade and those of the wider community who are likely to be affected by the operation of licensed premises. Crime and disorder in connection with licensed premises is often related to excessive drinking, and the impact of drunken anti-social behaviour is intimidating and distressing to local residents. It is incumbent on applicants to demonstrate how their premises will be properly managed to minimise any negative impact against all the licensing objectives.

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One of the greatest irritations to residents trying to sleep is the sound of music escaping from licensed premises. Such an escape of sound might preclude the grant of a licence or if one has already been granted, it might cause it to be reviewed and restricted or revoked. It might also lead to a noise abatement notice being issued under the Environmental Protection Act 1990. Responsible applicants and operators will wish to avoid the need for such action, as they will wish to comply with the licensing objective of preventing public nuisance. People leaving licensed premises, particularly late at night or in the early hours of the morning, can be a significant problem. Customers under the influence of alcohol are often less inhibited about their behaviour and may be unaware of the noise they are creating. This is exacerbated by the fact that this tends to happen later at night when ambient noise levels are naturally low, and the ensuing noise is therefore even more intrusive. Dispersal of customers once they have left licensed premises is also an area of concern, and often leads to anti-social behaviour and alcohol related crime. In addition, exacerbated by the smokefree legislation, is the need to control the behaviour and number of persons in outside areas of licensed premises such as beer gardens, and designated smoking areas or by customers in the vicinity of the premises. Public safety is about protecting the safety, and even lives, of persons who work on the premises, performers and customers. Operators should take a risk assessment approach to identify potential hazards and put in place appropriate and proportionate measures to minimise such risks. The welfare of children and the protection of children from exposure to adult activities and/or material is crucial to their well being. Exposure to inappropriate material may have an adverse impact on their actions in relation to anti-social behaviour and alcohol related crime. POLICY 4 Where in the opinion of the Licensing Authority, following receipt of representations, and having considered the submissions from all parties, an application for a Premises Licence is likely to undermine any of the four licensing objectives, and this cannot be resolved through the imposition of conditions or restrictions, the application will be refused. REASONS in accordance with the Licensing Authoritys obligations to promote the licensing objectives. POLICY 5 The Licensing Authority recognises that longer licensing hours may assist in reducing the problems associated with standard terminal hours, provided there is a good balance with the four licensing objectives. Each application will be considered on its merits having regard to the location and the proposed operating style of the premises. Promotion of the licensing objectives will be paramount in any consideration of a licence application by the Licensing Authority. Applicants wishing to extend their hours of operation will be expected to demonstrate that the granting of the later Premises Licence is not likely to undermine the crime prevention objective.

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REASONS - The Secretary of State wrote to all licensing authorities on 30 September 2005, emphasising that the Act contains no presumption in favour of longer licensing hours and the four licensing objectives should be paramount in any consideration of a licensing application. Section 17 Crime and Disorder Act 1998 Section 17 of the Crime and Disorder Act 1998 states: 17. - (1) Without prejudice to any other obligation imposed on it, it shall be the duty of each authority to which this section applies to exercise its various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that it reasonably can to prevent, crime and disorder in its area (2) This section applies to a local authority, a joint authority, a police authority, a National Park authority and the Broads Authority (3) In this section- "local authority" means a local authority within the meaning given by section 270(1) of the Local Government Act 1972 or the Common Council of the City of London Options: Members will hear from the applicant in support of their application. Members must first establish which areas of the application are contested, and should not concern themselves with unopposed parts of the application. When considering the application, Members must decide, having considered all the evidence, whether on balance of probability, one or more of the licensing objectives will be undermined. If the answer is yes, Members must then decide what action is necessary to promote the objective(s). Members are aware that each application must be considered on its own merits. The options for consideration are: Grant the application in the terms sought Grant the application subject to additional conditions Grant the application but modify conditions Grant the application subject to restrictions Reject the application

Both the Policy and the National Guidance emphasise the need for proportionality. Members should consider the imposition of conditions in the first instance, and if this is not sufficient to promote the objective(s), should look at imposing restrictions on the licence. Members must give careful consideration to all the evidence when formulating their decision and reasons. The decision and reasons should always refer to the relevant licensing objectives.

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Where Members are minded to impose conditions, the applicant and interested parties should be given the opportunity to comment on the proposals. Members are aware that each application must be considered on its own merits.

Consultations: Responsible authorities and interested parties as required under the Licensing Act 2003.

Report Author(s) Telephone Email

Linda Edmunds 01579 341324 ledmunds@cornwall.gov.uk

Appendices Appendix 1 Appendix 2 - 8 Location plan produced by officers Representations from Interested Parties

List of Background Documents (under provisions of the Local Government (Access to Information) Act 1985) Application for grant of premises licence Licensing Act 2003 Statutory Guidance issued under Section 182 of the Licensing Act 2003 Cornwall Councils Policy under the Licensing Act 2003

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Agenda No. 5.1 Appendix 1

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Agenda No. 5.1 Appendix 2

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Agenda No. 5.1 Appendix 3

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Agenda No. 5.1 Appendix 4

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Agenda No. 5.1 Appendix 5

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Agenda No. 5.1 Appendix 6

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Agenda No. 5.1 Appendix 7

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Agenda No. 5.1 Appendix 8

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Agenda No. 5.2

Cornwall Council Not Confidential Licensing Act Sub-Committee 28 December 2011

LICENSING ACT 2003 REVIEW APPLICATION CHY AN MOR & KOOLA BAR, BEACH ROAD, NEWQUAY
Subject of report: Licensing Act 2003 Application for review of premises licence in respect of Chy an Mor and Koola Bar, 12 Beach Road, Newquay TR7 1ES Head of Public Health and Protection

Report by:

Key Decision: Recommendation:

No

That the sub-committee, following a hearing of the application in accordance with the adopted code of conduct, determine whether they should take no action or if the subcommittee considers that action under its statutory powers are necessary it may take any of the following steps:a) b) c) d) e) f) issue an informal warning modify the conditions of the premises licence exclude a licensable activity from the scope of the licence remove the designated premises supervisor suspend the licence for a period not exceeding three months revoke the licence

Summary: Application has been made by Trading Standards to review the premises licence in respect of the Chy an Mor and Koola Bar, 12 Beach Road, Newquay. Representations have been received from the Devon and Cornwall Constabulary supporting the review application. The Sub-committee, following a hearing of the review application, must decide the action to be taken from the options outlined in the above recommendation. Previous Minutes/decision number: Work Programme -

none

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number: Summary of main implications: a) b) Policy Legal Licensing Act 2003 Policy Potential appeal in respect of the decision made by committee. The prospects of a successful appeal can be limited if the Committee make a reasonable decision having regard to all relevant legislation, guidance, policy and representations. None None None None None None There is risk that a poor decision could undermine rather than promote the licensing objectives and also result in legal challenge incurring costs to the council. Members involved in hearings have had extensive training on the legislation and procedures to be followed. This ensures that decisions are reasonable and proportionate and fully explained with the reasons for the decision reached. Delegation: a) Existing Licensing Act sub-committee b) Required No change Background: Mr Ronald Whitaker and Mr Ian Whitaker are the holders of the premises licence and Mr Ian Whitaker is also the designated premises supervisor in respect of the Chy an Mor and Koola Bar, Beach Road, Newquay. The current premises licence authorises the sale by retail of alcohol, regulated entertainment and late night refreshment. A copy of the licence is attached at Appendix 1. Issues: An application has been received from Trading Standards for a review of the premises licence in respect of the Chy an Mor and Koola Bar, Beach Road, Newquay. The review application relates to the protection of children from harm licensing

c) (i) (ii) (iii) (iv) d) e) f)

Resources Finance Personnel Property Crime and Disorder Corporate Ambitions: Equalities Risks

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objective. The review application is supported by statements that have been provided by Trading Standards alleging the conditions on the premises licence in relation to protection of children from harm are not being complied with. A copy of the review application including the grounds for review and accompanying documents is attached at Appendix 2. In accordance with the statutory regulations the application for review has been advertised in order that any other responsible authorities or interested parties can make representations if appropriate. A representation has been received from the Devon and Cornwall Constabulary in support of the review, a copy of which is attached at Appendix 3.

The Licensing Authority, when considering an application, must have due regard to the guidance issued under Section 182 of the Licensing Act 2003 and to its adopted Licensing Policy. Where it is necessary to depart from the guidance or policy the licensing authority must give reasons for doing so. In particular members attention is drawn to, but not limited to, the following extracts from the statutory guidance and councils policy:Statutory Guidance under Section 182 of the Licensing Act 2003:Sections 2.1-2.18, 2.41-2.51, 11.1-11.22, Annex D-Part 5

The Crime and Disorder Act 1998, Section 17, states: (1) Without prejudice to any other obligation imposed on it, it shall be the duty of each authority to which this section applies to exercise its various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that it reasonably can to prevent, crime and disorder in its area (2) This section applies to a local authority, a joint authority, a police authority, a National Park authority and the Broads Authority (3) In this section- "local authority" means a local authority within the meaning given by section 270(1) of the Local Government Act 1972 or the Common Council of the City of London

Councils Licensing Act 2003 Policy Considerations:POLICY 2 Applicants are expected to include in their operating schedules, measures that are necessary and proportionate to promote the licensing objectives. These should include:-

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Measures which are considered appropriate to promote public safety and the prevention of crime & disorder, or reasons why no measures are considered necessary. Measures which make adequate provision to control the adverse effects of noise, disturbance, smells, extraneous lighting, defacement of property, containment of solid and liquid waste; and in particular: Restrict the generation of noise within the premises and from activities associated with the premises in the vicinity of the premises; Limit the escape of noise from the premises; Restrict noise emissions to levels below that which could affect people in the vicinity going about their business at work and when at home. Minimise and control noise from customers arriving at the premises, outside it and departing from the premises; Minimise and control noise from staff, contractors and suppliers and their activities; Minimise and control noise from vehicles associated with and providing services to the premises and their customers. Measures that make adequate provision to protect children from harm. This will include measures to ensure that children are not permitted to access age restricted products (e.g. alcohol), and are protected from exposure to inappropriate activities or material (such as adult entertainment and advertisements in relation to such entertainment). The protection of children from harm will be taken in the widest context and may therefore include issues related to morality, psychological harm, physical harm and health related issues. This could also include Criminal Record Bureau checks and / or registration with the Independent Safeguarding Children Authority for staff or entertainers providing entertainment or activities for children. POLICY 3 The Licensing Authority will continue to work in partnership with responsible authorities and interested parties (including representatives of the licensed trade) to identify and establish best practice initiatives. Operators will be expected to participate in/with appropriate initiatives aimed at promoting the licensing objectives. REASONS: to ensure that operators / applicants take all reasonable steps to promote the licensing objectives and to achieve a balance between the interests of the licensed trade and those of the wider community who are likely to be affected by the operation of licensed premises. Crime and disorder in connection with licensed premises is often related to excessive drinking, and the impact of drunken anti-social behaviour is intimidating and distressing to local residents. It is incumbent on applicants to demonstrate how their premises will be properly managed to minimise any negative impact against all the licensing objectives. One of the greatest irritations to residents trying to sleep is the sound of music escaping from licensed premises. Such an escape of sound might preclude the grant of a licence or if one has already been granted, it might cause it to be reviewed and restricted or revoked. It might also lead to a noise abatement notice being issued under the Environmental Protection Act 1990. Responsible applicants and operators

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will wish to avoid the need for such action, as they will wish to comply with the licensing objective of preventing public nuisance. People leaving licensed premises, particularly late at night or in the early hours of the morning, can be a significant problem. Customers under the influence of alcohol are often less inhibited about their behaviour and may be unaware of the noise they are creating. This is exacerbated by the fact that this tends to happen later at night when ambient noise levels are naturally low, and the ensuing noise is therefore even more intrusive. Dispersal of customers once they have left licensed premises is also an area of concern, and often leads to anti-social behaviour and alcohol related crime. In addition, exacerbated by the smokefree legislation, is the need to control the behaviour and number of persons in outside areas of licensed premises such as beer gardens, and designated smoking areas or by customers in the vicinity of the premises. Public safety is about protecting the safety, and even lives, of persons who work on the premises, performers and customers. Operators should take a risk assessment approach to identify potential hazards and put in place appropriate and proportionate measures to minimise such risks. The welfare of children and the protection of children from exposure to adult activities and/or material is crucial to their well being. Exposure to inappropriate material may have an adverse impact on their actions in relation to anti-social behaviour and alcohol related crime. POLICY 6 Premises will be subject to both planned and unannounced inspections (including multi-agency inspections and test purchase inspections). Problem and high risk premises will be subject to a higher level of scrutiny than well run, low risk premises. REASONS to ensure compliance with the law and the conditions of the Premises Licence. POLICY 7 In every instance, applications, notices and reviews will be considered on their merits together with the information provided to the Licensing Authority. In determining the matter, the Licensing Authority will consider all options including: No action Verbal warning Written warning Requirement for improvements Imposition / modification of conditions Refusal to specify an individual as Designated Premises Supervisor (DPS) Removal of existing DPS Restriction of regulated activities / hours of operation

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Suspension of licence Revocation of licence REASONS to do whatever is necessary, reasonable and proportionate to promote the licensing objectives.

Consultations: Responsible authorities and interested parties as required under the Licensing Act 2003. Report Author(s) Telephone Email Julie Flower 01872 224506 jflower2@cornwall.gov.uk

Appendices 1. 2. 3. Premises Licence Application for Review Representation from Devon and Cornwall Constabulary

List of Background Documents (under provisions of the Local Government (Access to Information) Act 1985) Licensing Act 2003 Statutory Guidance issued under Section 182 of the Licensing Act 2003. Cornwall Councils Policy under the Licensing Act 2003

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Agenda No. 5.2 Appendix 1

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Agenda No. 5.2 Appendix 2

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Agenda No. 5.2 Appendix 3

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Agenda No. 5.3

Cornwall Council Not Confidential Licensing Act Sub-Committee 28 December 2011

LICENSING ACT 2003 REVIEW OF PREMISES LICENCE FOLLOWING CLOSURE ORDER - THE SHACK, BANK STREET, NEWQUAY
Subject of report: Review of Premises Licence following a Closure Order under Section 161 of the Licensing Act 2003 The Shack, 52 Bank Street, Newquay TR7 1AX Head of Public Health and Protection No

Report by: Key Decision: Recommendation:

The Sub-Committee must take such of the steps mentioned below (if any), as it considers necessary for the promotion of the licensing objectives. The steps are: (a) To modify the conditions of the premises licence, (b) To exclude a licensable activity from the scope of the licence, (c) To remove the designated premises supervisor (DPS), (d) To suspend the licence for a period not exceeding three months, or (e) To revoke the licence. The Sub-Committee may also consider issuing an informal warning to the licence holder and/or to recommend improvement within a particular period of time. Where the Authority takes a step within (a) or (b) above, it may provide that the modification or exclusion is to have effect only for a specified period (not exceeding three months). If none of the above steps are considered necessary the Premises Licence should be remain in the form it was granted. Summary: On 27 November 2011 The Shack, 52 Beach Road, Newquay was closed under Section 161 of the Licensing Act 2003 due to police concerns over disorder at the premises. On 12 December 2011 the Magistrates Court considered the Closure Order issued by the Police and ordered that the premises are closed and should remain closed until the

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Premises Licence has been reviewed by the Licensing Authority. The Sub-committee, following a hearing of the review, must decide the action to be taken from the options outlined in the above recommendation. Previous Minutes/decision number: Work Programme number: -

none

Summary of main implications: a) b) Policy Legal Licensing Act 2003 Policy Potential appeal in respect of the decision made by committee. The prospects of a successful appeal can be limited if the Committee make a reasonable decision having regard to all relevant legislation, guidance, policy and representations. None None None None None None There is risk that a poor decision could undermine rather than promote the licensing objectives and also result in legal challenge incurring costs to the council. Members involved in hearings have had extensive training on the legislation and procedures to be followed. This ensures that decisions are reasonable and proportionate and fully explained with the reasons for the decision reached. Delegation: a) Existing Licensing Act sub-committee b) Required No change Background: Mr Daniel Thorpe is the holder of a Premises Licence and also the Designated Premises Supervisor for the premises known as The Shack, 52 Bank Street, Newquay. The premises licence authorises the sale by retail of alcohol, regulated entertainment and

c) (i) (ii) (iii) (iv) d) e) f)

Resources Finance Personnel Property Crime and Disorder Corporate Ambitions: Equalities Risks

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late night refreshment. A copy of the Premises Licence is attached at Appendix 1 of this report. On 27 November 2011 the premises were closed under Section 161 of the Licensing Act 2003 due to police concerns over disorder at the premises. A Closure Order is an order requiring the premises to be closed for a period not exceeding 24 hours. A copy of the Closure Order served by the Devon and Cornwall Constabulary is attached at Appendix 2 of this report. Section 161 of the Licensing Act 2003 provides that a Senior Police Officer may make a Closure Order in relation to any premises where disorder is taking place, or is likely to take place imminently or a nuisance is being caused by noise emanating from the premises. These orders may only be made where it is necessary in the interests of public safety or to prevent the nuisance caused by noise coming from the premises. As soon as possible after a Closure Order comes into force, the Police must ask the Magistrates Court to consider it and any possible extension. The Magistrates Court may revoke the order or require the premises to be kept closed until certain conditions are met or until the Licensing Authority has reviewed the premises licence. Once a Closure Order has come into force the Licensing Authority must review the premises licence. The review hearing must take place within ten working days of the Licensing Authority receiving notification from the Magistrates Court of its decision in relation to the Closure Order. The Licensing Authority must determine the Premises Licence review within 28 days of receipt of the notification from the Magistrates Court. The review must therefore be determined by 9 January 2012. Issues: On 12 December 2011 the East Cornwall Magistrates Court considered the Closure Order issued by the Devon and Cornwall Constabulary and ordered that The Shack, 52 Bank Street, Newquay is closed and should remain closed until the Local Authority has reviewed the Premises Licence pursuant to Section 167 of the Licensing Act 2003. The Magistrates Court notification to the Licensing Authority is attached at Appendix 3 of this report. In accordance with the statutory regulations the review has been advertised in order that responsible authorities or interested parties can make representations if appropriate. Any representation must relate to one or more of the licensing objectives: The prevention of crime and disorder The prevention of public nuisance Public safety The protection of children from harm

The last date for receipt of representations in relation to the review is 19 December 2011; any representations received will be forwarded to the sub-committee under

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separate cover. The Licensing Authority, when considering an application, must have due regard to the guidance issued under Section 182 of the Licensing Act 2003 and to its adopted Licensing Policy. Where it is necessary to depart from the guidance or policy the licensing authority must give reasons for doing so. In particular members attention is drawn to, but not limited to, the following extracts from the statutory guidance and councils policy:Statutory Guidance under Section 182 of the Licensing Act 2003:Sections 2.1-2.18, 11.1-11.29 The Crime and Disorder Act 1998, Section 17, states: (1) Without prejudice to any other obligation imposed on it, it shall be the duty of each authority to which this section applies to exercise its various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that it reasonably can to prevent, crime and disorder in its area (2) This section applies to a local authority, a joint authority, a police authority, a National Park authority and the Broads Authority (3) In this section- "local authority" means a local authority within the meaning given by section 270(1) of the Local Government Act 1972 or the Common Council of the City of London

Councils Licensing Act 2003 Policy Considerations:POLICY 2 Applicants are expected to include in their operating schedules, measures that are necessary and proportionate to promote the licensing objectives. These should include:Measures which are considered appropriate to promote public safety and the prevention of crime & disorder, or reasons why no measures are considered necessary. Measures which make adequate provision to control the adverse effects of noise, disturbance, smells, extraneous lighting, defacement of property, containment of solid and liquid waste; and in particular: Restrict the generation of noise within the premises and from activities associated with the premises in the vicinity of the premises; Limit the escape of noise from the premises; Restrict noise emissions to levels below that which could affect people in the vicinity going about their business at work and when at home. Minimise and control noise from customers arriving at the premises, outside it and departing from the premises;

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Minimise and control noise from staff, contractors and suppliers and their activities; Minimise and control noise from vehicles associated with and providing services to the premises and their customers. Measures that make adequate provision to protect children from harm. This will include measures to ensure that children are not permitted to access age restricted products (e.g. alcohol), and are protected from exposure to inappropriate activities or material (such as adult entertainment and advertisements in relation to such entertainment). The protection of children from harm will be taken in the widest context and may therefore include issues related to morality, psychological harm, physical harm and health related issues. This could also include Criminal Record Bureau checks and / or registration with the Independent Safeguarding Children Authority for staff or entertainers providing entertainment or activities for children. POLICY 3 The Licensing Authority will continue to work in partnership with responsible authorities and interested parties (including representatives of the licensed trade) to identify and establish best practice initiatives. Operators will be expected to participate in/with appropriate initiatives aimed at promoting the licensing objectives. REASONS: to ensure that operators / applicants take all reasonable steps to promote the licensing objectives and to achieve a balance between the interests of the licensed trade and those of the wider community who are likely to be affected by the operation of licensed premises. Crime and disorder in connection with licensed premises is often related to excessive drinking, and the impact of drunken anti-social behaviour is intimidating and distressing to local residents. It is incumbent on applicants to demonstrate how their premises will be properly managed to minimise any negative impact against all the licensing objectives. One of the greatest irritations to residents trying to sleep is the sound of music escaping from licensed premises. Such an escape of sound might preclude the grant of a licence or if one has already been granted, it might cause it to be reviewed and restricted or revoked. It might also lead to a noise abatement notice being issued under the Environmental Protection Act 1990. Responsible applicants and operators will wish to avoid the need for such action, as they will wish to comply with the licensing objective of preventing public nuisance. People leaving licensed premises, particularly late at night or in the early hours of the morning, can be a significant problem. Customers under the influence of alcohol are often less inhibited about their behaviour and may be unaware of the noise they are creating. This is exacerbated by the fact that this tends to happen later at night when ambient noise levels are naturally low, and the ensuing noise is therefore even more intrusive. Dispersal of customers once they have left licensed premises is also an area of concern, and often leads to anti-social behaviour and alcohol related crime. In addition, exacerbated by the smokefree legislation, is the need to control the behaviour and number of persons in outside areas of licensed premises such as beer

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gardens, and designated smoking areas or by customers in the vicinity of the premises. Public safety is about protecting the safety, and even lives, of persons who work on the premises, performers and customers. Operators should take a risk assessment approach to identify potential hazards and put in place appropriate and proportionate measures to minimise such risks. The welfare of children and the protection of children from exposure to adult activities and/or material is crucial to their well being. Exposure to inappropriate material may have an adverse impact on their actions in relation to anti-social behaviour and alcohol related crime. POLICY 6 Premises will be subject to both planned and unannounced inspections (including multi-agency inspections and test purchase inspections). Problem and high risk premises will be subject to a higher level of scrutiny than well run, low risk premises. REASONS to ensure compliance with the law and the conditions of the Premises Licence. POLICY 7 In every instance, applications, notices and reviews will be considered on their merits together with the information provided to the Licensing Authority. In determining the matter, the Licensing Authority will consider all options including: No action Verbal warning Written warning Requirement for improvements Imposition / modification of conditions Refusal to specify an individual as Designated Premises Supervisor (DPS) Removal of existing DPS Restriction of regulated activities / hours of operation Suspension of licence Revocation of licence REASONS to do whatever is necessary, reasonable and proportionate to promote the licensing objectives. Consultations: Responsible authorities and interested parties as required under the Licensing Act 2003.

Report Author(s) Telephone

Julie Flower 01872 224506

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Email

jflower2@cornwall.gov.uk

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Appendices 1. 2. Premises Licence. Closure Order made under Section 161 of the Licensing Act 2003 by the Devon and Cornwall Constabulary. Magistrates Court Order that premises are to be closed.

3.

List of Background Documents (under provisions of the Local Government (Access to Information) Act 1985) Licensing Act 2003 Statutory Guidance issued under Section 182 of the Licensing Act 2003. Cornwall Councils Policy under the Licensing Act 2003

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Agenda No. 5.3 Appendix 1

Licensing Act 2003 Premises Licence The Licensing Authority Cornwall Council Penwinnick Road St Austell PL25 5DR Tel: 0300 1234 212 www.cornwall.gov.uk

LI11_005708

Premises licence number

LI11_005708
Postal address of premises, or if none, ordnance survey map reference, or description

The Shack 52 Bank Street Newquay Cornwall TR7 1AX

Premises tel. no. 01637 875675

Where the licence is time limited the dates Not applicable

Description of premises Town-centre licensed premises

Licensable activities authorised by the licence Exhibition of Films (B) Live Music (E) Recorded Music (F) Performance of Dance (G) Anything of a similar description to that falling within (E), (F) or (G) Making Music (I) Dancing (J) Entertainment of a similar description to that falling within (I) or (J) Late Night Refreshment (L) Supply of Alcohol (M)

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LI11_005708

The times the licence authorises the carrying out of licensable activities Exhibition of Films (B) (indoors only) Monday - Sunday 10:00 - 02:00

Non Standard Timings Flexibility for the period commencing at the terminal hour on New Year's Eve until the commencement hour on New Year's Day each year. An extra hour on the morning each year when British Summer Time commences. Live Music (E) (indoors only) Monday - Sunday 22:00 - 02:00

Non Standard Timings Flexibility for the period commencing at the terminal hour on New Year's Eve until the commencement hour on New Year's Day each year. An extra hour on the morning each year when British Summer Time commences. Recorded Music (F) (indoors only) Monday - Sunday 10:00 - 02:30

Non Standard Timings Flexibility for the period commencing at the terminal hour on New Year's Eve until the commencement hour on New Year's Day each year. An extra hour on the morning each year when British Summer Time commences. Performance of Dance (G) (indoors only) Monday - Sunday 22:00 - 02:30

Non Standard Timings Flexibility for the period commencing at the terminal hour on New Year's Eve until the commencement hour on New Year's Day each year. An extra hour on the morning each year when British Summer Time commences. Anything of a similar description to that falling within (E), (F) or (G) (indoors only) Monday - Sunday 22:00 - 02:30

Non Standard Timings Flexibility for the period commencing at the terminal hour on New Year's Eve until the commencement hour on New Year's Day each year. An extra hour on the morning each year when British Summer Time commences. Making Music (I) (indoors only) Monday - Sunday 10:00 - 02:30

Non Standard Timings Flexibility for the period commencing at the terminal hour on New Year's Eve until the commencement hour on New Year's Day each year. An extra hour on the morning each year when British Summer Time commences.

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LI11_005708

Dancing (J) (indoors only) Monday - Sunday 10:00 - 02:30

Non Standard Timings Flexibility for the period commencing at the terminal hour on New Year's Eve until the commencement hour on New Year's Day each year. An extra hour on the morning each year when British Summer Time commences. Entertainment of a similar description to that falling within (I) or (J) (indoors only) Monday - Sunday 22:00 - 02:30

Non Standard Timings Flexibility for the period commencing at the terminal hour on New Year's Eve until the commencement hour on New Year's Day each year. An extra hour on the morning each year when British Summer Time commences. Late Night Refreshment (L) (indoors only) Monday - Sunday 23:00 - 02:30

Non Standard Timings Flexibility for the period commencing at the terminal hour on New Year's Eve until 05:00 on New Year's Day each year. An extra hour on the morning each year when British Summer Time commences. Supply of Alcohol (M) (for consumption on and off the premises) Monday - Sunday 10:00 - 02:30

Non Standard Timings Flexibility for the period commencing at the terminal hour on New Year's Eve until the commencement hour on New Year's Day each year. An extra hour on the morning each year when British Summer Time commences.

The opening hours of the premises Monday Sunday 10:00 - 03:00

Non Standard Timings Flexibility for the period commencing at the terminal hour on New Year's Eve until the commencement hour on New Year's Day each year. An extra hour on the morning each year when British Summer Time commences.

Where the licence authorises supplies of alcohol Alcohol is supplied for consumption on and off the premises

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LI11_005708

Name and postal address (or registered address if a company) and telephone number of holder of premises licence Mr Daniel Thorpe 52 Bank Street Newquay Cornwall TR7 1AX Home tel. no. 01637 875675 Mobile no. -

Registered number of holder, for example company/charity number (if applicable) N/A

Name, address and telephone number of designated premises supervisor where the premises licence authorises for the supply of alcohol Mr Daniel Thorpe 52 Bank Street Newquay Cornwall TR7 1AX

Home tel. no.

01637 875675

Mobile no.

Personal licence number and issuing authority of personal licence held by designated premises supervisor where the premises authorises the supply of alcohol Personal licence number: PL1334 Issuing licensing authority: Restormel Borough Council State whether access to the premises by children is restricted or prohibited Restricted only by the Licensing Act 2003

Signed

Granted on

3 August 2011

pp
Head of Public Health & Protection

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LI11_005708

Annex 1 Mandatory conditions Films 1. The admission of children (aged under 18) to the exhibition of any film must be restricted in accordance with the recommendation of the designated film classification body unless section 2. applies. 2. Where the licensing authority notifies the holder of the licence that this subsection applies the admission of children must be restricted in accordance with any recommendation made by the licensing authority. Alcohol 1. No supply of alcohol may be made under this premises licence (a) at a time when there is no designated premises supervisor in respect of the premises licence, or (b) at a time when the designated premises supervisor does not hold a personal licence or his personal licence is suspended. 2. Every supply of alcohol under the premises licence must be made or authorised by a person who holds a personal licence. 3. The responsible person shall take all reasonable steps to ensure that staff on relevant premises do not carry out, arrange or participate in any irresponsible promotions in relation to the premises. In this paragraph, an irresponsible promotion means any one or more of the following activities, or substantially similar activities, carried on for the purpose of encouraging the sale or supply of alcohol for consumption on the premises in a manner which carries a significant risk of leading or contributing to crime and disorder, prejudice to public safety, public nuisance, or harm to children. (a) games or other activities which require or encourage, or are designed to require or encourage, individuals to (i) drink a quantity of alcohol within a time limit (other than to drink alcohol sold or supplied on the premises before the cessation of the period in which the responsible person is authorised to sell or supply alcohol), or (ii) drink as much alcohol as possible (whether within a time limit or otherwise); (b) provision of unlimited or unspecified quantities of alcohol free or for a fixed or discounted fee to the public or to a group defined by a particular characteristic (other than any promotion or discount available to an individual in respect of alcohol for consumption at a table meal, as defined in section 159 of the Act); (c) provision of free or discounted alcohol or any other thing as a prize to encourage or reward the purchase and consumption of alcohol over a period of 24 hours or less; (d) provision of free or discounted alcohol in relation to the viewing on the premises of a sporting event, where that provision is dependent on (i) the outcome of a race, competition or other event or process, or (ii) the likelihood of anything occurring or not occurring;
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(e) selling or supplying alcohol in association with promotional posters or flyers on, or in the vicinity of, the premises which can reasonably be considered to condone, encourage or glamorise anti-social behaviour or to refer to the effects of drunkenness in any favourable manner. 4. The responsible person shall ensure that no alcohol is dispensed directly by one person into the mouth of another (other than where that other person is unable to drink without assistance by reason of a disability). 5. The responsible person shall ensure that free tap water is provided on request to customers where it is reasonably available. 6. (1) The premises licence holder or club premises certificate holder shall ensure that an age verification policy applies to the premises in relation to the sale or supply of alcohol. (2) The policy must require individuals who appear to the responsible person to be under 18 years of age (or such older age as may be specified in the policy) to produce on request, before being served alcohol, identification bearing their photograph, date of birth and a holographic mark. 7. The responsible person shall ensure that (a) where any of the following alcoholic drinks is sold or supplied for consumption on the premises (other than alcoholic drinks sold or supplied having been made up in advance ready for sale or supply in a securely closed container) it is available to customers in the following measures (i) beer or cider: pint; (ii) gin, rum, vodka or whisky: 25 ml or 35 ml; and (iii) still wine in a glass: 125 ml; and (c) customers are made aware of the availability of these measures. 8. Where door supervisors are employed at the premises they shall (a) be authorised to carry out that activity by a licence granted under the Private Security Industry Act 2001 or (b) be entitled to carry out that activity by virtue of section 4 of that Act

Annex 2 Conditions consistent with the operating schedule General all four licensing objectives 1. Management shall encourage close liaison with the police Neighbourhood Beat Manager for the area in which the premises is situated. Prevention of crime and disorder 1. The current, approved, CCTV system shall be operated and maintained having regard to advice received from the police Licensing Officer. 2. All bottles and glasses shall be removed from public areas as soon as practicable after they are finished with or emptied.

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LI11_005708

3. Alcohol sold for consumption off the premises shall be in sealed containers only. Public safety 1. The fire safety measures with which the premises are provided shall be maintained in good working order and their adequacy determined on a regular basis by the performance of a fire risk assessment. 2. Suitable and sufficient first aid equipment shall be made available for the use of customers and staff. 3. All staff shall be made aware of the emergency evacuation procedures and shall receive instruction in their responsibilities in the event of a fire or some other emergency. Prevention of public nuisance 1. Prominent, clear and legible notices shall be displayed at all public exits requesting patrons to leave the premises and the area quietly. 2. Arrangements shall be made for the dispersal of customers from the premises, including the availability of free telephone calls by customers to local taxi companies. 3. Bright, or flashing, lights outside the premises shall not be allowed to cause nuisance to occupiers of neighbouring premises. The protection of children from harm 1. Staff engaged in the retail sale of alcohol who are not holders of a personal licence, shall receive training in the social and legal responsibilities of such sales. A record of this training shall be maintained and produced to officers of the Responsible Authorities.

Annex 3 Conditions attached after a hearing by the licensing authority 1. Noise from the premises, including music and people noise should be no louder than just audible at the facade of 53 Bank Street, Newquay. "Just audible" is defined as "it is possible to hear noise, but the type of noise (music or speech etc) is not clearly recognisable." Save for access to, and egress from the premises, the internal double doors at the foot of the stairs shall be kept closed at all times during which the premises is open to the public. All alcoholic drinks shall be left inside the premises, and clear notices shall be displayed reminding customers that no alcoholic drinks are to be taken beyond the (exterior) double doors. All glasses are to be made of toughened glass, polycarbonate or plastic. Fridays, Saturdays and Bank Holidays throughout the year and every day throughout July and August. Door staff shall be employed at a ratio to customers of 1:100 from 2100 hours until the premises closes to the public. No games shall be played or organised on the premises that involve the removal of clothing to expose breasts and/or genitalia and involve simulated sex acts.

2.

3.

4. 5.

6.

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LI11_005708

7.

If a young person, who appears to be 25 or under asks for alcohol, they will be required to prove their age before they are served, unless the staff are certain (from personal knowledge or because they have seen proof of age on a previous occasion) that the person is 18 or over. The forms of proof of age that will be accepted are a passport, a photo driving licence, or a proof-of-age card that has the PASS accreditation hologram on it. Photocopies will not be accepted. All staff will be trained in this policy and reminded about it frequently. Records of this training will be kept. A notice advising customers that they may be required to prove their age before they can buy alcohol will be displayed at the bar. Gaming and/or Cigarette machines will be closely monitored by the staff and there will be appropriate signage to indicate that they are not for the use of customers under the age of 18years. Proof of age policy will also apply (at the door) for live performances and the showing of videos, DVDs and/or films which may contain adult entertainment and for which appropriate signage will be displayed.

Annex 4 Plans See attached Licensing Approved Plan.

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Agenda No. 5.3 Appendix 2

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Agenda No. 5.3 Appendix 3

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