Agenda item

Ward CIA* SCZ**	Site Name & Address	Application Type	Licensing Reference No.
Regents Park None* None**	Appleberry Kiosk,   222 Baker Street, NW1 5RT	New Premises Licence	22/02303/LIPN
*Cumulative Impact Area ** Special Consideration Zone

 

WESTMINSTER CITY COUNCIL LICENSING SUB-COMMITTEE NO. 3

 (“The Committee”)

 

Thursday 16^th June 2022

 

Membership:           Councillor Aicha Less (Chair), Councillor Robert Eagleton and Councillor Melyvn Caplan.

 

Officer Support        Legal Advisor:         Horatio Chance

                                Policy Officer:          Aaron Hardy

                                Committee Officer:  Sarah Craddock

                                Presenting Officer:  Emanuela Meloyan

 

Others present:       Josef Cannon (Agent, Cornerstone), Bhavinkumar Inamdar (Applicant Company), Dave Nevitt (Environmental Health Service) and PC Bryan Lewis (Metropolitan Police Force)

 

Application for a New Premises Licence – Appleberry Kiosk, 222 Baker Street, London NW1 5RT – 22/02303/LIPN

 

FULL DECISION

 

Premises

 

Appleberry Kiosk

222 Baker Street

London

NW1 5RT

 

Applicant

 

Appleberry Foods Ltd

 

Ward

 

Regents Park

 

Cumulative Impact

 

N/A

 

Special Consideration Zone

 

N/A

 

 

 

 

 

 

Activities and Hours applied for

 

Sale by retail of alcohol [Off sales]

 

Monday to Sunday 00.00 to 23:59 hours

 

Opening Hours

 

Monday to Sunday 06:00 to 23:00 hours

 

Summary of Application

 

The Sub-Committee has determined an application for a New Premises Licence under the Licensing Act 2003 (“The Act”).  The Premises intends to operate as a kiosk located on Baker Street. The Applicant has recently been given permission by TFL to sell alcohol at the Premises.  The Applicant proposes to operate as an off-licence by day and a delivery service by night.  The resident count is 496.

 

As part of the application form, the applicant provided the following information:

 

“The premises has a separate basement for alcohol storage. The applicant wishes to operate the premises as an off-licence with the sale of alcohol directly to the public from 10:00-23:00 hours. Making use of the basement for storage the applicant wishes for the sale of alcohol by delivery only to be an option for the premises. This will be supported by suitable conditions including limiting the access to the premises by members of the public to 06:00-23:00.”

 

In the original application the applicant supplied a number of conditions as part of their operating schedule. Condition 1 states “There shall be no sales of alcohol to members of the public between 10:00-23:00”. If the licence were to be granted with this condition the applicant would not be able to operate as intended. Therefore, the applicant was advised about this and has indicated that they wish to withdraw this condition. Members needed to consider this request as a preliminary point prior to the substantive application in the report.

 

The Premises are situated within the Regent’s Park Ward and are not located in either the West End Cumulative Impact Zone or Special Consideration Zone.

 

 Representations Received

 

·       Metropolitan Police Force

·       Environmental Health Service

·       1 Local Resident (opposing)

 

Summary of Representations

 

·       The Metropolitan Police Service have made a representation as the hours sought were beyond core hours as set out in the Westminster City Council Statement of Licensing Policy.

 

·       The Environmental Health Service have made a representation as the proposals are likely to increase the risk of Public Nuisance and may impact upon Public Safety.

 

·       The resident made a representation on the basis that are plenty of venues (pubs, shops, supermarkets) which sell alcohol. He stated, ‘this creates rowdy behaviour and I often hear profanities spoken loudly from intoxicated personnel whilst I am trying to enjoy a peaceful evening in my flat’.   

 

Policy Position

 

HRS1

 

Applications within the core hours set out below in this policy will generally, be granted for the relevant premises uses, subject to not being contrary to other policies in the Statement of Licensing Policy. Applications for hours outside the core hours set out in Clause C will be considered on their merits, subject to other relevant policies, and with particular regard to the following:

 

The demonstration of compliance in the requirements of policies CD1, PS1, PN1 and CH1 associated with the likelihood of the effect of the grant of a licence for later or earlier hours on crime and disorder, public safety, public nuisance and the protection of children from harm.

 

PB1

 

Applications outside the West End Cumulative Zone will generally be granted subject to the application meeting the requirements of policies CD1, PS1, PN1 and CH1.The hours for licensable activities being within the council’s Core Hours Policy HRS1.The applicant has taken account of the Special Consideration Zones policy SCZ1 if the premises are located within a designated zone. The application and operation of the venue meet the definition of a Public House or Bar in Clause D.

 

SHP1

 

Applications for a shop outside the West End Cumulative Impact Zone will generally be granted subject to the application meeting the requirements of policies CD1, PS1, PN1 and CH1. The hours for licensable activities are within the council’s Core Hours Policy HRS1. The operation of any delivery services for alcohol meeting the Council’s Ancillary Alcohol and/or Late-night Refreshment Delivery Service Policy DEL1. The applicant having taken account of the Special Consideration Zone Policy SCZ1 if the premises are located within a designated zone. The application and operation of the venue meeting the definition of a shop in Clause C. For the purposes of this policy: A shop is defined as a stall, vehicle, vessel, temporary structure, building or part of a stall, vehicle, vessel, temporary structure or building where the primary activity is the sale of goods or services to customers upon payment. The licensable activities for the sale of alcohol for consumption on the premises, regulated entertainment and/or late-night refreshment must be ancillary to the primary use of the premises as a shop.  The licensable activity of the sale of alcohol for consumption off the premises must be an ancillary function to the primary use of the premises unless that primary use is to sell alcohol for consumption off the premises, e.g. a traditional off licence.

 

Preliminary point prior to the substantive application in the report.

 

Mr Josef Cannon (Agent for the Applicant) gave a brief description of the business and background to the application.  He advised that the Agent who submitted the application had made an error with one of the conditions.  The condition read ‘There shall be no sales of alcohol to members of the public between 10:00-23:00’ instead of ‘There shall be no sales of alcohol to members of the public between 23:00 -10:00’.  On the 6 May the Licensing Authority had informed the Agent of the error.  Mr Cannon considered that it was clear that this was an accidental error and that the Sub Committee could either disregard this condition or could consider the condition  as part of the application.  The Applicant would then come back to make a variation application.

 

Mr Horatio Chance, Legal Advisor to the Sub Committee, asked if this error had been highlighted during the consultation period.  Mr Cannon confirmed it had been and added that the application form itself was correct and that it was just this one condition with the wrong timings around the wrong way that was incorrect. 

 

Mr Steve Rowe, Licensing Service Manager, was invited to comment.  Mr Rowe advised that the Licensing Authority had notified the Agent of the error and had requested that they withdraw their application as they would not be able to operate as they wished to.  The Agent had advised the Licensing Authority that they did not wish to withdraw their application as they considered it was lawful for the Sub Committee to disregard this condition.  Mr Cannon advised that he had clear instructions to let the Licensing Sub Committee make the decision on how to proceed with the application.

 

Dealing with this preliminary issue the Sub Committee advised that the correction was made on the 6 May 2021 which was after the consultation period.  In light of this the Sub Committee decided to hear the application as it was called for in the original application.

 

SUBMISSIONS AND REASONS

 

The Presenting Officer, Ms Emanuela Meloyan, introduced the application and advised that the application was for a New Premises Licence for a kiosk located on Baker Street.  The Applicant proposes to operate as an off-licence by day and a delivery service by night.  She advised that representations had been received by the Environmental Health Service, the Metropolitan Police Force and 1 local resident. She outlined that the Premises is within the Regents Park Ward but not in a Cumulative Impact Area or a Special Consideration Zone. 

Mr Josef Cannon (Agent), appearing on behalf of the Applicant addressed the Sub-Committee.  He advised that the Applicant managed a nationwide operation of kiosks which sold groceries and alcohol (where licensed).  He already had 10 sites in London with one site being in Westminster.  He explained that the Applicant had recently been given permission by TFL to sell alcohol at the Premises and the Applicant wished to operate as an off-licence by day and a delivery service by night.   He advised that all orders would be made via an APP, no customers would be allowed onto the Premises at any time and all deliveries would be made by people employed by the Applicant’s company and not a third party.  He outlined that the drivers would check ID before handing over the alcohol to avoid underage sales.

Mr Cannon advised that the conditions attached to the Premises Licence were very comprehensive and would ensure that the licensing objectives were promoted.  He emphasised again that the company would be employing their own drivers who would be using electric bikes.  He stated that a driver would only be summoned to the kiosk once an order has been received.  There would be no waiting around of drivers outside of the Premises.

Mr Cannon advised that the Applicant had not received any complaints regarding his other operations in London and around the country and this was the first time he had had to go to a hearing to obtain a Premises Licence.  He had been operating this type of operation since 2014 so the Sub Committee could have a degree of confidence in his ability to manage such Premises.

In response to questions from the Sub Committee, Mr Cannon described how the parcel was ready for the driver to collect and drive to the customer’s home.  He confirmed that the kiosk was open from 06:00 until 23:00 seven days a week and sold groceries.  He added that the type of alcohol sold would be high-end wines,  champagne, spirits and some premium beers.  He advised that they received around 50-100 orders a day, depending on the site.

Mr Dave Nevitt representing the Environmental Health Service advised the Sub Committee that he was happy with the conditions that had been agreed with the Applicant.  He advised that he was content to deal with the issues that the Environmental Health Service had with the application in the event of a variation application being made. 

 

PC Bryan Lewis representing the Metropolitan Police Service advised that there were two elements to the Police’s representation: the statement contained in the additional information pack from the Neighbourhood Police Sergeant for Marylebone High Street and Bryanston and Dorset Square which covered Baker Street.  The report highlighted the increase in ASB reports coming from residents who lived in this specific area and the risk of allowing alcohol to be readily available 24 hours a day. 

 

PC Lewis advised that historically off licences in Westminster operated within Westminster’s Core Hours Policy so that they were closed at 23:00 before most pubs. The supply of alcohol was therefore not readily available unless people had stocked up at home or gone on to a late hour’s bar or nightclub.  He also stated that test purchases could be made in shops and off licences which could not be carried out from a home.  He emphasised that having access to alcohol after 23:00 could lead to anti-social behaviour and that the Police were on the front line dealing with domestic abuse and violence which is often fuelled by alcohol.  He emphasised that the application should not be granted for the prevention of crime and disorder.

 

Mr Chance, Legal Advisor to the Sub Committee, briefly discussed the proposed conditions with Mr Cannon.  Mr Cannon advised the Sub Committee that the Applicant would not be selling alcohol to hostels and that his business was very respectable.  He was already operating 10 such kiosks all over London as well as numerous others across the country without complaint.

 

Conclusion

 

The Sub-Committee has determined an application for a grant of a NEW Premises Licence under the Act for the Off sale of alcohol where members of the public are not permitted on to the Premises and the delivery of such alcohol sales would be by the Applicants own delivery drivers to the recipient’s residential address or place of work.

The Sub-Committee realises that it has a duty to consider each application on its individual merits and did so when determining the application.

The Sub-Committee noted that the Applicant was an experienced operator in the running of these type of Premises and there had been no significant issues that had come to the attention of the Sub-Committee that would give cause for concern in relation to the management of the Premises on a day-to-day basis and the promotion of the licensing objectives.

The Sub-Committee considered the evidence as to how the Premises would deal effectively and efficiently with its delivery drivers, noise, health and safety, challenge 25 and the consideration that was given to residents particularly when deliveries take place and that members of the public are not permitted on the Premises at any time.

The Sub-Committee was persuaded by the Applicant that he would be a responsible operator by having the necessary measures and safeguards in place in the running of the Premises that would help mitigate the concerns of those objecting and uphold the promotion of the licensing objectives.

The Sub-Committee, in its determination of the matter, concluded that the hours and  the conditions it had imposed on the licence were appropriate and would promote the licensing objectives.

 

In reaching their decision, the Sub-Committee having carefully considered all the committee papers, supplementary submissions made by the Police, and the oral evidence given by all parties during the hearing in its determination of the matter the Committee has decided, after taking into account all the individual circumstances of this case and the promotion of the four licensing objectives: -

 

1.        To grant permission for Sale by Retail of alcohol (Off Sales) Monday to Sunday 00:00 to 23:59 hours.

 

2.        To grant permission for the Opening Hours for the Premises Monday to Sunday 06:00 to 23:00 hours.

 

3.        That the Premises Licence is subject to any relevant mandatory conditions.

 

 

 

4.        That the Premises Licence is subject to the following conditions imposed by the Committee which are considered appropriate and proportionate to promote the licensing objectives.

 

Conditions imposed by the Committee after a licensing hearing

 

5.        The premises shall not be open to the public from 23:00hrs until 06:00hrs the following day.

 

6.        No internal combustion engine vehicles will be used for deliveries from the premises.

 

7.        (a)      The premises shall install and maintain a comprehensive CCTV system  

as per the minimum requirements of the Westminster Police Licensing Team.

(b)      All entry and exit points will be covered enabling frontal identification of every            person entering in any light condition.

(c)      The CCTV system shall continually record whilst the premises is open for licensable activities and during all times when customers remain on the premises and will include the external area immediately outside the premises entrance.

(d)      All recordings shall be stored for a minimum period of 31 days with date and time stamping.

(e)      Viewing of recordings shall be made available immediately upon the request of Police or authorised officer throughout the entire 31-day period.

 

8.        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.

 

9.        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.

 

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

 

11.      A direct telephone number for the manager at the premises shall be publicly available at all times the premises is open. This telephone number and/or is to be made available to residents and businesses in the vicinity.

 

12.      No super-strength beer, lagers, ciders or spirit mixtures of 5.5% ABV (alcohol by volume) or above shall be sold at the premises, except for premium beers and ciders supplied in glass bottles and cans.

 

13.      No waste or recyclable materials, including bottles, shall be moved, removed from or placed in outside areas between 23.00 hours and 08.00 hours on the following day.

 

14.      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 of business.

 

15.      No collections of waste or recycling materials (including bottles) from the premises shall take place between 23.00 and 08.00 hours on the following day.

 

16.      A 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.

 

17.      A record shall be kept detailing all refused sales of alcohol. The record should include the date and time of the refused sale and the name of the member of staff who refused the sale. The record shall be available for inspection at the premises by the police or an authorised officer of the City Council at all times whilst the premises is open.

 

18.      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 faults in the CCTV system, searching equipment or scanning equipment

           (g) any refusal of the sale of alcohol

           (h) any visit by a relevant authority or emergency service.

 

19.      No deliveries to the premises shall take place between 23.00 and 07.00 hours on the following day.

 

20.      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.

 

21.      The premises shall operate a Challenge 25 scheme for all delivery staff

 

22.      Delivery staff shall be trained and instructed to only make sales to directly to individuals with ID (if deemed required)

 

23.      All delivery staff shall be directly employed by the premises licence holder.

 

24.      Training shall be conducted for all new staff and at intervals of six months thereafter.

 

25.      The premises licence holder will ensure that an age verification policy will

apply whereby all delivery riders/drivers will be trained to ask any customer to whom alcohol is delivered, who appears to be under the age of 25 years to produce, before being sold alcohol, identification being a passport or photocard driving licence bearing a holographic mark or other form of identification that complies with any mandatory         condition that may apply to this licence.

 

26.      All delivery riders/drivers shall receive training in age restricted sales.

 

·       induction training must be completed and documented prior to the delivery of alcohol by the rider and all training received shall be signed for, by the rider employee.

·       Refresher/reinforcement training must be completed and documented at intervals of no more than 6 months.

·       Training records will be available for inspection by a Police Officer or other authorised officer on request. Training records will be electronically stored by the licence holder for a period of 12 months.

 

27.      A warning shall be displayed on the digital platform on which an order is

placed informing customers that they must be aged 18 or over to make a purchase of alcohol            and notifying customers that the rider will carry out age verification on delivery. The customer will be required to declare that he or she is aged 18 or over. If the rider is not            satisfied that the customer is aged 18 or over any alcohol in the order will be withheld.

          

28.      All riders/drivers shall be trained to record refusals of sales of alcohol in a

refusals log/register. The log/register will contain:

 

·       details of the time and date the refusal was made.

·       the identity of the rider/driver refusing the sale.

·       details of the alcohol the person attempted to purchase.

 

This log/register will be available for inspection by a Police Officer or other authorised officer on request.

 

29.      Delivery of alcohol shall be to the recipient’s residential address or place of

work.

 

30.     The premises licence holder shall not sell by delivery super-strength beer,

lager, cider or spirit mixtures with an alcohol content over 5.5% ABV (alcohol by volume). This restriction shall not apply in respect of the specialist branded, premium priced products for example craft ales, local or microbrewery specialist products, boxed gifts or national celebratory/commemorative beer, lager or cider.

 

31.     All delivery riders/drivers will be employed directly by the licence holder.

 

32.     All sales of alcohol for consumption off the premises shall be in sealed

containers only and shall not be consumed on the premises.

 

33.     Customers to be reminded that it is a criminal offence for a person under 18 to

purchase or attempt to purchase alcohol and that it is also an offence to purchase alcohol on behalf of a person aged under 18. Alcohol will only be delivered to the person who placed the order and whose name appears on the credit/debit card at the point of sale. Sale of alcohol shall only be by means of credit/debit card. Payment shall be at the point of sale only.

 

34.     Full name and address details, including postcode, must be given when

placing an order by the purchaser.

 

35.     The record keeping requirements are that a book shall be kept at the

despatch premises and a delivery book or invoice carried by the driver or courier must specify:(a) the quantity, description and price of alcohol, and (b) the name and address of the person to whom it is being delivered. The delivery books shall be made available to the Responsible Authorities upon request.

 

This is the Full Decision of the Licensing Sub-Committee which takes effect forthwith.

 

The Licensing Sub-Committee

16 June 2022