Agenda item
Marks & Spencer Plc, 169 - 173 Oxford Street, London, W1D 2JR
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App No |
Ward / Cumulative Impact Area |
Site Name and Address |
Application |
Licensing Reference Number |
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3. |
West End Ward /Cumulative Impact Area |
Marks & Spencer Plc, 169 - 173 Oxford Street, London, W1D 2JR |
Premises Licence Variation |
18/05212/LIPV |
Minutes:
LICENSING SUB-COMMITTEE No. 2
Thursday 28th June 2018
Membership: Councillor Tim Mitchell (Chairman), Councillor Heather Acton and Councillor Aziz Toki
Legal Adviser: Barry Panto
Policy Adviser: Kerry Simpkin
Committee Officer: Tristan Fieldsend
Presenting Officer: Shannon Pring
Relevant Representations: The Licensing Authority
Present: Mr Jon Wallsgrove (Solicitor, representing the Applicant), Mr Jamie Smith (Representing the Applicant Company), Ms Roxsana Haq and Mr Steve Rowe (Licensing Authority).
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Marks & Spencer, 169-173 Oxford Street, London, W1D 2JR (“The Premises”) 18/05212/LIPV
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1. |
Sale by Retail of Alcohol – On Sales
Licensable Area
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Amendments to application advised at hearing:
The applicant advised that the application had been amended so that the sale of alcohol for consumption on the premises would cease at 20:00 hours.
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Decision (including reasons if different from those set out in report):
The Sub-Committee considered an application by Marks & Spencer PLC for a variation of a premises licence in respect of Marks & Spencer, 169-173 Oxford Street, London, W1D 2JR.
The Licensing Officer provided an outline of the application to the Sub-Committee and confirmed that Environmental Health (EH) and the Metropolitan Police had withdrawn their representations following the agreement of conditions with the Applicant.
Mr Wallsgrove, representing the applicant, confirmed that the application was to vary the current licence to permit the sale of alcohol for consumption in the café on the first floor of the Premises. The Sub-Committee was advised that following concerns raised the application was amended so that the sale of alcohol for consumption on the Premises would cease at 20:00 hours. It was acknowledged that the Premises was located within a Cumulative Impact Area (CIA), however it could be considered an exception to policy on several grounds. Firstly, paragraph 2.4.17 of the Council’s Statement of Licensing Policy (SLP) recognised that premises such as cafes provided a significant food offer without the sale of alcohol being ancillary to food. The Premises did operate as a café, providing a significant food offer and required all customers to be seated. Due to the café style nature of the operation the applicant did not want a full restaurant condition to be attached to the licence. Secondly, Mr Wallsgrove highlighted that under paragraph 2.4.18 of the SLP it stated that applications for these types of premises, which could demonstrate that they would not add to cumulative impact, would generally be granted provided they operated within core hours.
Mr Wallsgrove explained that a significant hot and cold food offer would be available at the Premises at all times when alcohol was sold. Customers would always be seated and no vertical drinking would be permitted. The alcohol offer would be limited to single glass bottles of wine and on special occasions single glass bottles of prosecco. Several other retailers in close proximity to the premises provided a similar offer where alcohol could be consumed on the premises and this was becoming a significant part of the modern retail experience. The sale of alcohol would remain ancillary to the business and sales would be very limited. It was hoped to offer the service in order to provide customers with an enhanced retail experience.
Ms Haq, representing the Licensing Authority, advised that the Premises was located within a CIA and as it would not operate as a restaurant had to be considered under policy PB2. Therefore for the application to be granted the applicant had to highlight why it could be regarded as an exception to policy. As the application had been amended so that alcohol would cease to be sold after 20:00 for consumption on the Premises this lessened the potential to create cumulative impact. The Sub-Committee had to decide if the application could be considered an exception to policy and subsequently whether to grant the licence variation or not.
In response to questions from the Sub-Committee Mr Wallsgrove confirmed that the only types of alcohol to be sold at the Premises were one red and one white wine and prosecco on special occasions. If the Sub-Committee was minded to grant the application the Legal Adviser to the Sub-Committee queried if the applicant would accept a condition on the licence requiring the sale of alcohol at the café to be ancillary to it being operated by Marks and Spencers? The applicant confirmed that it was satisfied for a relevant condition to be included on the licence. To provide further reassurance that the premises would not become a drink-led venue the applicant also agreed that conditions could be added to the licence requiring all customers consuming alcohol to be seated and also ensuring non-intoxicating beverages would be available at all times.
After considering all the evidence, the Sub-Committee agreed to grant the application as an exception to policy. It was recognised that whilst the Premises was located within a CIA the nature of the operation (being a café within a large store) meant that it would not become an alcohol-led venue. It would operate as a café and not a bar and due to its location on the first floor was unlikely to attract customers from the street seeking alcohol only. Of particular importance was the applicant’s amendment to the application requiring all sales of alcohol for consumption on the Premises to cease by 20:00 hours. The Council’s SLP recognised that when the sale of alcohol was not permitted after 20:00 hours it was unlikely to add to cumulative impact. The Sub-Committee recognised that only a limited selection of wine, and no beer, would be available for consumption and this provided further reassurance that the application would not add to cumulative impact in the local area.
The Sub-Committee considered the conditions proposed by the applicant to be appropriate and proportionate in the circumstances. Due to the location of the premises however the Sub-Committee decided to impose several extra conditions on the licence, with the applicant’s agreement, in order to ensure the licensing objectives would be promoted. These included:
The reason for requiring the café to be operated by Marks and Spencers was to reflect the view of the Sub-Committee that there would be the potential for a different operator to use the café as a bar and it was considered that bar use would add to cumulative impact, even if sales were restricted to 20.0 hours. The Council’s policy statements referred to by Mr Wallsgrove only applied when the sale of alcohol was ancillary to other uses. It was accepted that the sale and consumption of alcohol would be ancillary to the main use of the café for the sale of food and non-alcoholic drinks based on the known operating style of the applicant.
Having heard all the evidence the Sub-Committee was satisfied that the application could be considered an exception to policy, would not add to cumulative impact in the local area and would promote the licensing objectives.
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2. |
Conditions Being Varied, Added or Removed
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Amendments to application advised at hearing:
None.
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Decision (including reasons if different from those set out in report):
The condition was amended to read “Except for the first floor café, alcohol shall not be sold in an open container or be consumed in the licensed premises”.
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Conditions attached to the Licence |
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Mandatory Conditions
1. No supply of alcohol may be made at a time when there is no designated premises supervisor in respect of this licence.
2. No supply of alcohol may be made at a time when the designated premises supervisor does not hold a personal licence or the personal licence is suspended.
3. Every supply of alcohol under this licence must be made or authorised by a person who holds a personal licence.
4. (1) The responsible person must ensure that staff on relevant premises do not carry out, arrange or participate in any irresponsible promotions in relation to the premises.
(2) 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—
(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 in a manner which carries a significant risk of undermining a licensing objective; (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 in a manner which carries a significant risk of undermining a licensing objective; (d) 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; (e) dispensing alcohol 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 must ensure that free potable water is provided on request to customers where it is reasonably available.
6. (1) The premises licence holder or club premises certificate holder must ensure that an age verification policy is adopted in respect of the premises in relation to the sale or supply of alcohol.
(2) The designated premises supervisor in relation to the premises licence must ensure that the supply of alcohol at the premises is carried on in accordance with the age verification policy.
(3) 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 either—
(a) a holographic mark, or (b) an ultraviolet feature.
7. The responsible person must 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: ½ pint; (ii) gin, rum, vodka or whisky: 25 ml or 35 ml; and (iii) still wine in a glass: 125 ml;
(b) these measures are displayed in a menu, price list or other printed material which is available to customers on the premises; and (c) where a customer does not in relation to a sale of alcohol specify the quantity of alcohol to be sold, the customer is made aware that these measures are available.
A responsible person in relation to a licensed premises means the holder of the premise licence in respect of the premises, the designated premises supervisor (if any) or any individual aged 18 or over who is authorised by either the licence holder or designated premises supervisor. For premises with a club premises certificate, any member or officer of the club present on the premises in a capacity that which enables him to prevent the supply of alcohol.
8(i) A relevant person shall ensure that no alcohol is sold or supplied for consumption on or off the premises for a price which is less than the permitted price.
8(ii) For the purposes of the condition set out in paragraph 8(i) above –
(a) "duty" is to be construed in accordance with the Alcoholic Liquor Duties Act 1979;
(b) "permitted price" is the price found by applying the formula - P = D+(DxV)
Where - (i) P is the permitted price, (ii) D is the amount of duty chargeable in relation to the alcohol as if the duty were charged on the date of the sale or supply of the alcohol, and (iii) V is the rate of value added tax chargeable in relation to the alcohol as if the value added tax were charged on the date of the sale or supply of the alcohol;
(c) "relevant person" means, in relation to premises in respect of which there is in force a premises licence –
(i) the holder of the premises licence, (ii) the designated premises supervisor (if any) in respect of such a licence, or (iii) the personal licence holder who makes or authorises a supply of alcohol under such a licence;
(d) "relevant person" means, in relation to premises in respect of which there is in force a club premises certificate, any member or officer of the club present on the premises in a capacity which enables the member or officer to prevent the supply in question; and
(e) "value added tax" means value added tax charged in accordance with the Value Added Tax Act 1994.
8(iii). Where the permitted price given by Paragraph 8(ii)(b) above would (apart from this paragraph) not be a whole number of pennies, the price given by that subparagraph shall be taken to be the price actually given by that sub-paragraph rounded up to the nearest penny.
8(iv). (1) Sub-paragraph 8(iv)(2) below applies where the permitted price given by Paragraph 8(ii)(b) above on a day ("the first day") would be different from the permitted price on the next day ("the second day") as a result of a change to the rate of duty or value added tax.
(2) The permitted price which would apply on the first day applies to sales or supplies of alcohol which take place before the expiry of the period of 14 days beginning on the second day.
Conditions which reproduce the effect of any restriction imposed on the use of the premises by specified enactments
Conditions Consistent with the Operating Schedule Applicable to the Sale of Alcohol
9. Alcohol shall not be sold or supplied except during permitted hours.
In this condition, the permitted hours for off-sales means:
(a) On Monday to Saturday from 07:00 to 23:00; (b) On Sunday from 09:00 to 21:00.
NOTE - The above restrictions do not prohibit the ordering of alcohol to be consumed off the premises, or the despatch by the vendor of the alcohol so ordered.
In this condition, the permitted hours for on-sales means:
(a) On Monday to Saturday from 10:00 to 20:00; (b) On Sunday from 12:00 to 20:00.
10. Except for the first floor café alcohol shall not be sold in an open container or be consumed in the licensed premises.
11. Save for premium lines, there shall be no super strength (having an ABV of 5.5% or above) lager or ciders sold by retail at the premises.
Conditions Attached after a Hearing by the Licensing Authority
12. The premises shall install and maintain a comprehensive CCTV system as per the minimum requirements of the Westminster Police Licensing Team. All entry and exit points will be covered enabling frontal identification of every person entering in any light condition. The CCTV system shall continually record whilst the premises is open for licensable activities and during all times when customers remain on the premises. All recordings shall be stored for a minimum period of 31 days with date and time stamping. Viewing of recordings shall be made available immediately upon the request of Police or authorised officer throughout the entire 31-day period.
13. Alcohol shall be displayed in a responsible manner and be subject to appropriate systems of security and supervision by staff, CCTV or a combination of both.
14. A staff member from the premises who is conversant with the operation of the CCTV system shall be on the premises at all times when the premises is open. This staff member must be able to provide a Police or authorised council officer copies of recent CCTV images or data with the absolute minimum of delay when requested.
15. A Challenge 21 or Challenge 25 proof of age scheme shall be operated at the premises where the only acceptable forms of identification are recognised photographic identification cards, such as a driving licence, passport or proof of age card with the PASS Hologram.
16. An incident log shall be kept at the premises, and made available on request to an authorised officer of the City Council or the Police. It must be completed within 24 hours of the incident and will record the following:
(a) all crimes reported to the venue (b) all ejections of patrons (c) any complaints received concerning crime and disorder (d) any incidents of disorder (e) all seizures of drugs or offensive weapons (f) any refusal of the sale of alcohol (g) any visit by a relevant authority or emergency service.
17. Food and non-intoxicating beverages, including drinking water, shall be available in the 1st floor café where alcohol is sold or supplied for consumption on the premises.
18. The sale of alcohol for consumption on the premises is restricted to consumption by persons who are seated in the 1st floor café and the consumption of alcohol must cease by 20:00.
19. The sale and consumption of alcohol on the first floor café is only permissible when the café is being operated by or on behalf of Marks & Spencer PLC.
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Supporting documents:
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