Decision - Bag O' Nails, 9 Kingly Street, W1 | Westminster City Council
Decision details

Decision - Bag O' Nails, 9 Kingly Street, W1

Decision details

Bag O' Nails, 9 Kingly Street, W1

Decision Maker: Licensing Sub-Committee (5)

Decision status: Recommendations Approved

Is Key decision?: No

Is subject to call in?: No

Decisions:

LICENSING SUB-COMMITTEE No. 5

Thursday 31st May 2018

 

Membership:              Councillor Murad Gassanly (Chairman), Councillor Heather Acton and Councillor Aziz Toki

 

Legal Adviser:             Barry Panto

Committee Officer:     Kisi Smith-Charlemagne

Presenting Officer:     Samantha Eaton

                                   

 

Relevant Representations:         The Licensing Authority, Environmental Health, Metropolitan Police and two Local Residents

 

Present: Mr Craig Baylis (Solicitor, representing the Applicant), Giovanni Delmino (on behalf of the Applicant company), Miss Daisy Gadd (Licensing Authority), Mr Dave Nevitt (Environmental Health), PC Bryan Lewis (Metropolitan Police) and Richard Brown (CAB Licensing Project representing Liz Callingham)

 

Bag O' Nails, 9 Kingly Street, W1 18/03731/LIPV

 

1.

Conditions being Varied, Added or Removed

 

Current:

 

Proposed:

 

 

 

 

Add the Following Conditions:

 

Model Condition 1

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.

 

 

Model Condition 2

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.

 

 

Condition 25

At least 2 SIA licensed door supervisors shall be on duty at the entrance of the premises at all times whilst it is open for business.

Remove the Following Condition:

 

 

Condition 13

 

Condition 14

 

Condition 21

 

Condition 22

 

Condition 23

 

Condition 24

 

Amendments to application advised at hearing:

 

None

 

 

Decision (including reasons if different from those set out in report):

 

The Sub-Committee considered an application by West End Commercial Properties Ltd, for a premises licence variation in respect of Bag O Nails, 9 Kingly Street, London, W1B 5PH.

 

The Licensing Officer provided an outline of the application to the Sub-Committee.

 

Mr Baylis, representing the applicant, advised the Sub-Committee that the existing licence was old and pre dated the 2003 Licensing Act.  My Baylis further advised the Sub-Committee that the application required a tidy up of the current licence, the removal of some of the old, redundant conditions and the updating of the licence in line with new conditions such as CCTV.  Mr Baylis then went on to discuss the current terminal hours for licensable activities (03:00 Monday-Friday and 23:00 on Saturday) describing the hours as unusual.  Mr Baylis described the premises as a private members club with a capacity limit of over 350, but indicated that it was never used to its full capacity. 

 

My Baylis advised the Sub-Committee that there had been a number of onsite meetings with the Police and Environmental Health (EH) Officers where conditions have been agreed.  The only decision that could not be agreed with the EH, is the last entry time every day at 00:00.  My Baylis informed the Sub-Committee that in terms of the licence, this was a straight swap, changing one day of the week (Monday) when the premises is less busy, for a day when they  would like to take advantage of greater demand (Saturday).  Mr Baylis expressed the view that the premises had been in existence for many years and was exceptional as there had been no problems or complaints regarding the premises in this time.  Mr Baylis also advised that this application was exceptional due to it being a private members club.

 

The Sub-Committee then heard from PC Bryan Lewis from the Metropolitan Police, who advised that this was a policy objection, there were conditions proposed to which the applicant agreed, however due to policy the objection is still maintained.  PC Lewis also confirmed that the police have had no complaints regarding the premises.  Dave Nevitt, representing Environmental Health was invited to speak. Mr Nevitt raised concerns regarding the likely impact on the cumulative impact area and advised that there was the potential for 150 extra people to be active in the cumulative area on a Saturday night. It was felt that this was not a like for like swap. Monday nights are very different from Saturday’s; it was felt that this would be adding more people to an already saturated area.  The Licensing Authority (LA) Officer Daisy Gadd, advised that the LA did not view the trade in operating hours to be exceptional circumstances, however it would be for the Sub-Committee to decide.

 

Richard Brown, from Citizen Advice Bureau (CAB) who represented local resident Liz Callingham, agreed with the applicant’s representative in regards to the current operating hours being usual.  However it was felt that the proposed swap (Monday to Saturday) was not a fair trade. The Sub-Committee was also advised that according to the applicant website, it does not currently open on Monday’s. Mr Brown also referred to WCC licensing policy (2.4.1) regarding the concentration of late night and alcohol led premises and licences and in particular the requirement that applications that were contrary to policy should only be granted in exceptional circumstances.  Mr Brown went on to discuss private member clubs not being exceptional circumstances referring to the 2016 change in policy.  Mr Brown was generally happy with the rest of the conditions but asked the applicant if they would consider keeping condition 22, and especially the provision which required the sale of alcohol to be ancillary to the use of the premises for music and dancing and substantial refreshment.  The applicants agreed to keep condition 22 as this was already a part of their operating model.

 

Local resident Ms Callingham, then addressed the Sub-Committee raising concerns regarding the lack of communication from the applicant prior to the licensing hearing.  Ms Callingham felt that there was a large difference between Monday and Saturday night trading and that the application may be motivated by financial gain at the expense of residents.  The number of people in the areas is growing and everyone is aware of the cumulative impact around Kingly Court.  There is already a problem with cabs and chatting on narrow streets with noise echoing.  Ms Callingham felt there would be 150 more people on the street and crowds attract crime and objected to the application strongly.

 

The Sub-Committee listened to all the evidence presented and advised that good behaviour, good conduct and lack of complaints does not constitute exceptional circumstances that could justify the grant of an application. That is expected from all license holders. The Sub-Committee asked the applicant how they felt 150 people in the cumulative impact area at 03:00 on a Sunday morning would not add to the impact.  Mr Baylis urged the Sub-Committee to consider the likely impact, advising the Sub-Committee that the applicant is able to manage 150 people every other day of the week, so there is unlikely to be any additional impact. The Sub Committee asked additional questions of Mr Delmino regarding the number of members and crowd dispersal routes. The legal adviser to the Licensing Sub-Committee, Barry Panto then addressed the Sub-Committee, making reference to WCC policy (2.4.5) which related to the global and cumulative effect on licencing on the area as a whole.  It is about movement of people who leave those areas. He also referred to the policy regarding proprietary clubs and premises that promote private functions, which stated that they were very likely to contribute to cumulative impact. The Sub-Committee then retired to make its decision. 

 

The Sub-Committee did not grant the amended application in full, as the Sub-Committee felt that a switch of operating hours from a Monday night to a Saturday night would clearly add to the cumulative impact and no exceptional to policy had been shown to justify granting the application. However, policy did allow the variation of an existing licence to within core hours and the Sub-Committee were happy to grant the licences until 00:00 on Saturday night, with an additional 30 minutes for drinking up time, therefore ceasing operations at 00:30.  The Sub-Committee also advised that it would not be removing the 03:00 operating time for Mondays; this would remain in place.  The Sub-Committee encouraged the applicant to continue its current dispersal policy, asking patrons to leave via Regents Street. The Licensing Sub-Committee decided not to impose any further conditions regarding smokers who might congregate outside the premises, but nevertheless expected that the licence holder would manage this so as to ensure that it did not cause any public nuisance. 

 

Overall having listened to all the evidence and concerns raised by all the objectors, including the local residents, the Sub-Committee was satisfied that a small increase in operating hours on a Saturday night so as to match core hours would not add to cumulative impact and could be granted. However, any hours beyond core hours would have added to cumulative impact and would not have promoted the licensing objectives.

 

It was decided to delete most of condition 22 from the existing licence as requested, apart from the key requirement in that condition to the effect that the sale of alcohol must be ancillary to the use of the premises for music and dancing and substantial refreshment. It was decided to remove the other conditions proposed by the applicant but the Licensing Sub-Committee did not impose the additional condition proposed by the applicant which would have required 2 door supervisors to be on duty at the entrance as this was not considered to be appropriate in the circumstances. New CCTV conditions were imposed as offered by the applicant in the application form as were other conditions proposed by Environmental Health that were considered to be appropriate.

 

2.

Sale by Retail of Alcohol – On and Off Sales

 

From

 

Monday 10:00 to 03:00

Saturday 10:00 to 23:00

To

 

Monday 10:00 to 23:00

Saturday 10:00 to 03:00

 

 

 

Amendments to application advised at hearing:

 

None

 

 

Decision (including reasons if different from those set out in report):

 

The Sub-Committee grant part of the application (see reasons for decision in Section 1).

 

3.

Performance of Dance and Live Music (Indoors)

 

From

 

Monday 09:00 to 03:00

Saturday 09:00 to 23:00

To

 

Monday 09:00 to 23:00

Saturday 09:00 to 03:00

 

 

 

Amendments to application advised at hearing:

 

None

 

 

Decision (including reasons if different from those set out in report):

 

The Sub-Committee grant part of the application (see reasons for decision in Section 1).

 

4.

Late Night Refreshment (Indoors)

 

From

 

Monday 23:00 to 03:30

Saturday 23:00 to 23:30

To

 

Monday – Not Required

Saturday 23:00 to 03:30

 

 

 

Amendments to application advised at hearing:

 

None

 

 

Decision (including reasons if different from those set out in report):

 

The Sub-Committee grant part of the application (see reasons for decision in Section 1).

 

5.

Hours Premises Are Open to the Public

 

From

 

Monday 09:00 to 03:30

Saturday 09:00 to 23:00

To

 

Monday 09:00 to 23:30

Saturday 09:00 to 03:30

 

 

 

Amendments to application advised at hearing:

 

None.

 

Decision (including reasons if different from those set out in report):

 

The Sub-Committee granted part of the application (see reasons for decision in Section 1).

 

 

 

Conditions attached to the Licence

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.

 

9. All persons guarding premises against unauthorised access or occupation or against outbreaks of disorder or against damage (door supervisors) must be licensed by the Security Industry Authority.

 

 

Conditions Consistent with the Operating Schedule

 

10. This licence is subject to all the former Rules of Management for Places of Public Entertainment licensed by Westminster City Council, in force from 4 September 1998 and incorporating amendments agreed by the Council on 25 October 1999, 30 June 2000, 16 January 2001 and 1 October 2001.

 

11. On New Year's Eve the premises can remain open for the purpose of providing regulated entertainment from the time when the provision of regulated entertainment must otherwise cease on New Year's Eve to the time when regulated entertainment can commence on New Year's Day (or until midnight on New Year's Eve where no regulated entertainment takes place on New Year's Day).

 

12. Notwithstanding the provisions of Rule of Management No.6 the premises may remain open for the purposes of this licence from 23:00 on each of the days Monday to Friday to 03:00 on the day following.

 

13. An attendant shall be on duty in the cloakroom during the whole time it is in use.

 

14. The exitway to Beak Street via the open court and Kingly Court shall be maintained readily available and the collapsible gate at the inner end of the arch shall be locked back fully in the open position when the premises are in use.

 

15. The spring keys to the entrance doors of No. 10 Kingly Street be removed and retained in the possession of a responsible person during the whole time the public are on the premises.

 

16. The number of persons accommodated at any one time (excluding staff) shall not exceed the following: Ground floor of Nos. 9 and 10 Kingly Street – 30. Basement of No. 9 Kingly Street and Nos. 12/15 Kingly Court – 120.

 

17. The sale of alcohol must be ancillary to the use of the premises for music and dancing and substantial refreshment.

 

18. 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.

 

19. 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. 

 

20. The supply of alcohol at the premises shall only be sold for consumption by members and their bona fide guests (not exceeding 4 guests per member). No person shall be admitted to membership of the private club or be entitled to take advantage of any of the privileges of membership without an interval of at least 48 hours between their nomination or application for membership and their admission.

 

21. A list of the names and addresses of members shall be kept on the premises at all times together with a book showing the names and dates of attendance of any guests introduced by members. Both the list and the book shall be produced on demand for inspection by the police or an authorised officer of the Council.

 

22. After 23:00 hours, the supply of alcohol at the premises shall only be to a person seated at a table

 

23. No noise generated on the premises, or by its associated plant or equipment, shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance.

 

24. All external doors shall be kept closed after 23:00 hours, or at any time when regulated entertainment takes place, except for the immediate access and egress of persons.

 

25. Notices shall be prominently displayed at all exits requesting patrons to respect the needs of local residents and businesses and leave the area quietly.

 

26. All waste shall be properly presented and placed out for collection no earlier than 30 minutes before the scheduled collection times.

 

27. Patrons permitted to temporarily leave and then re-enter the premises, e.g. to smoke, shall not be permitted to take drinks or glass containers with them.

 

28. During the hours of operation of the premises, the licence holder shall ensure sufficient measures are in place to remove and prevent litter or waste arising or accumulating from customers in the area immediately outside the premises, and that this area shall be swept and or washed, and litter and sweepings collected and stored in accordance with the approved refuse storage arrangements by close

 

29. The approved arrangements at the premises, including means of escape provisions, emergency warning equipment, the electrical installation and mechanical equipment, shall at all material times be maintained in good condition and full working order.

 

30. The means of escape provided for the premises shall be maintained unobstructed, free of trip hazards, be immediately available and clearly identified in accordance with the plans provided.

 

31. All emergency exit doors shall be available at all material times without the use of a key, code, card or similar means.

 

32. All emergency doors shall be maintained effectively self-closing and not held open other than by an approved device.

 

33. The edges of the treads of steps and stairways shall be maintained so as to be conspicuous.

 

 

 

Publication date: 22/08/2018

Date of decision: 31/05/2018

Decided at meeting: 31/05/2018 - Licensing Sub-Committee (5)

Accompanying Documents: