Agenda item - Sweaty Betty, 1-2 Carnaby Street, W1

Sweaty Betty, 1-2 Carnaby Street, W1

Meeting of Licensing Sub-Committee (5), Thursday 15th February, 2018 10.00 am (Item 5.)

App

Ward /

Cumulative Impact Area

Site Name and Address

Application

Licensing Reference Number

West End Ward / West End Cumulative Impact Area

Sweaty Betty, 1-2 Carnaby Street, W1

New Premises Licence

17/14852/LIPN

Minutes:

LICENSING SUB-COMMITTEE No. 5

Thursday 15 February 2018

Membership: Councillor Peter Freeman (Chairman), Councillor Heather Acton and Councillor Shamim Talukder

Legal Adviser: Horatio Chance

Policy Adviser: Chris Wroe

Committee Officer: Jonathan Deacon

Presenting Officer: Yolanda Wade

Relevant Representations: Licensing Authority, 1 Ward Councillor and 3 x residents/residents’ associations.

Present: Mr Alun Thomas (Solicitor, representing the Applicant), Ms Georgie Snelling (Senior Retail Operations Manager, Applicant Company), Mr David Sycamore (Licensing Authority) and Mr David Gleeson (The Soho Society).

Sweaty Betty, 1-2 Carnaby Street, W1 17/14852/LIPN (“The Premises”)
1.	Sale by retail of alcohol (On)
	Monday to Saturday: 10:00 to 20:00 Sunday: 12:00 to 20:00
	Amendments to application advised at hearing:
	None.
	Decision (including reasons if different from those set out in report):
	The Sub-Committee heard from Mr Thomas and Ms Snelling. They stated that Sweaty Betty had been operating at 1-2 Carnaby Street for 15 years. Sweaty Betty is a retailer specialising in women’s activewear. There is an exercise studio in the basement, a retail shop on the ground floor and a café and blow dry salon on the first floor area of the Premises. On sales were sought for the first floor café only where customers were seated. It was submitted that due to the configuration of the Premises it was not possible to obtain the sale of alcohol directly from the street. Residents’ representations had referred to the sale of alcohol being at odds with the Applicant promoting a healthy lifestyle. The Applicant wished to address this specific point. Ms Snelling stated that the concept was that customers might want to do an energetic workout and then have the ability to enjoy a cocktail (there were a maximum of four types sold), a glass of red or white wine or a glass of champagne. The cocktails on offer would include Quinoa vodka which was based around healthy eating and would resemble more of a smoothie type drink. Drinking would be encouraged in moderation. Alcohol sales would be estimated to be around one or two per cent of the turnover. Mr Thomas commented that the health aspect was not a matter for the Sub-Committee to consider as it was not a licensing objective. The sale of alcohol was however an ancillary part of the offer and significant levels of drinking would not be tolerated because the Applicant’s main business was that of a sports fashion retailer. Mr Thomas said that the Applicant had written to the residents who had submitted representations objecting to the application and a meeting had been organised to discuss the application. Two of the residents who had made representations and had attended the meeting had decided to withdraw the representations following this meeting. Environmental Health and the Metropolitan Police had also withdrawn their representations. Additional points made by residents in their representations which Mr Thomas wished to respond to included that the application would change the nature and character of the street. Mr Thomas explained that this was disputed by Shaftesbury, the landlord, on the basis they would ensure that Carnaby Street would remain a retail street. Mr Thomas also explained that the Applicant did not accept the point that the application would cause public nuisance or crime and disorder. There would be the necessary security and CCTV on the Shaftesbury estate which assisted in keeping people safe that would promote the licensing objectives. Mr Thomas expressed the view that the application was completely policy compliant. The Applicant was, in terms of the Council’s policy, seeking to establish a bar as the sale of alcohol was not strictly ancillary to a table meal. However, Mr Thomas in his submissions to the Sub-Committee attempted to deal with the policy considerations regarding the application and quoted paragraph 2.4.20 of the City Council’s Statement of Licensing Policy(‘the SLP’) that ‘the availability of alcohol at lunchtime or in the early evening in Premises where alcohol is ancillary to other uses of the Premises and not associated with sustained or high alcohol consumption to later hours may not be likely to add to cumulative impact in the cumulative impact area’. Mr Thomas added that this was relevant in terms of alcohol being ancillary to the retail use and in terms of the hours sought with the terminal hour being 20:00. Mr Thomas also believed paragraph 2.4.21 of the SLP was relevant as it set out reasons as to how an application was unlikely to add to cumulative impact. One of the criteria was that an application for on sales needed to be ‘appropriately conditioned so that the consumption of alcohol is not, and cannot become a significant part of the operation of the Premises and is regulated to promote responsible drinking’. He was of the view that this was achieved with on sales being restricted to the first floor of the Premises. Mr Thomas also took the view that the application complied as ‘the character of the premises is such that its customers are not likely to be involved in sustained or heavy drinking at later hours’ and in terms of the sale of alcohol not ‘being permitted beyond 20.00 hours’. Mr Thomas also referred to paragraph 2.4.22 of the SLP in terms of ‘examples of appropriate conditions to ensure that alcohol consumption is appropriately regulated may include conditions that (i) only permit the sale of alcohol ancillary to the provision of food, or ancillary to other activities at the premises, or to the operation of the premises as a whole’. Mr Thomas referred to the application being ancillary to the retail use. Secondly, it was required that service of alcohol would be only by waiter or waitress to seated persons. Thirdly, the licensed area would remain under the management of the Premises licence holder with the licence being limited to their personal use. In this case the Applicant had offered that the sale of alcohol on the Premises would at all times be ancillary to the main use of the Premises as the Sweaty Betty retail shop. Fourthly, it was required that the consumption of alcohol would be restricted to an area which is an integral part of the Premises with access to that area only through the Premises and with no direct access to the street. Mr Thomas commented that all the relevant tests had been satisfied and met in terms of paragraphs 2.4.20 to 2.4.22 of the SLP. Mr Thomas advised that there had been discussions with Environmental Health regarding the proposed conditions in the event the Sub-Committee was minded to grant the application and it had been agreed that proposed condition 15 should be amended to the number of persons permitted on the first floor at any one time (excluding staff) should not exceed 60 persons. The Sub-Committee heard from Mr Sycamore on behalf of the Licensing Authority. He was of the view that the Applicant had moved away from proposing a public bar and towards being more in keeping with the terms of the SLP. The supply of alcohol was intended to be ancillary to the retail use, it would only be served by waiter or waitress to seated customers. Condition 16 had been put forward by the Applicant that ‘the sale of alcohol on the Premises shall at all times be ancillary to the main use of the Premises as the Sweaty Betty retail shop’. This would mean that the Premises licence would have to be varied before it could be operated by another licence holder. Mr Sycamore stated that the matter he believed needed to be assessed by the Sub-Committee was whether the conditions provided sufficiently tight controls to ensure that alcohol could not become a predominant part of the business. It was not required that alcohol was ancillary to food and it could be consumed up until 20:00 hours. He did take the view that Mr Thomas had addressed many of the concerns and it was a well-conditioned premises licence that would ultimately promote the licensing objectives. The Sub-Committee also heard from Mr Gleeson on behalf of the Soho Society. He said that the Applicant had been quite clear about the sale of alcohol being ancillary to the premises’ use as a shop. The application was within Core Hours and some residents had withdrawn their representations. Mr Gleeson confirmed that the Chair of the Soho Society had attended the meeting organised by the Applicant and had appeared to be satisfied with the application. However, having reviewed the application the Soho Society was concerned about a retail premises applying for an alcohol licence. There could be up to 60 people buying alcohol on the Premises. In response to questions from Mr Wroe, Mr Thomas clarified that there was an external terrace area in existence and it was being proposed as part of the application that alcohol could be consumed at the three tables with two chairs each. He also confirmed that the shop on the ground floor of the Premises was not part of the application. In response to questions from the Sub-Committee, Mr Thomas stated that the external terrace had been used in 2017 when alcohol had not been sold and there had been no complaints received. Ms Snelling and Mr Thomas advised that there would be no off sales. Food was not being licensed as part of this application but Sweaty Betty and Farmgirl (who had a sub-lease for an area within the property) would not be averse to the concept of using their best endeavours that any deliveries of food would be by sustainable means, such as walking, cycling or electric vehicles. Mr Thomas emphasised that Environmental Health had suggested the capacity of 60 on the first floor. It was not anticipated that the maximum capacity of 60 would all be drinking alcohol. The Applicant had agreed the condition that there would be no advertising of bar facilities at or in the vicinity of the Premises so as to encourage members of the public directly from the street. Mr Sycamore confirmed that a site visit had been undertaken by Environmental Health prior to Environmental Health withdrawing their representation. The Sub-Committee, in reaching a decision, noted some residents’ concerns about the mix of alcohol with fitness. The Sub-Committee was required under the Licensing Act 2003 to limit its considerations to the four licensing objectives and health is not one of these. The Sub-Committee decided that the Applicant complied sufficiently with paragraphs 2.4.20 to 2.4.22 of the SLP and there were sufficient conditions attached to the licence for the application to promote the licensing objectives and not add to cumulative impact in the West End Cumulative Impact Area. The sale of alcohol would not be ancillary to food. However, it was intended that the sale of alcohol would be ancillary to the retail use. The service of alcohol would be only by waiter or waitress to seated persons. The licensed area would remain under the management of the premises licence holder with the licence being limited to their personal use. The Applicant had offered that the sale of alcohol on the Premises would at all times be ancillary to the main use of the premises as the Sweaty Betty retail shop. The consumption of alcohol would be restricted to an area which is an integral part of the Premises with access to that area only through the Premises and with no direct access to the street. Significantly the sale of alcohol would not be permitted beyond 20:00 hours. The Applicant had agreed a condition that there would be no advertising of bar facilities at or in the vicinity of the Premises, which is less likely to give the impression that the Premises was just another drinking establishment amongst the many parade of shops on Carnaby Street. The Applicant had also advised that the range of alcoholic drinks would be limited and based around healthy eating and that alcohol sales would be a very low percentage of turnover. It was agreed by the Applicant that an amended set of plans would be provided to the Licensing Service which included the ground floor area of the Premises. The Sub-Committee considers that the conditions imposed on the Premises Licence are appropriate and proportionate that will promote the licensing objectives
2.	Hours premises are open to the public
	Monday to Sunday: 08:00 to 20:00
	Amendments to application advised at hearing:
	None.
	Decision (including reasons if different from those set out in report):
	Granted, subject to conditions as set out below.

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;

(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 sub-paragraph 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.

Additional Conditions

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. Loudspeakers shall not be located in the entrance lobby or outside the premises building.

11. There shall be no striptease or nudity, and all persons shall be decently attired at all times, except when the premises are operating under the authority of a Sexual Entertainment Venue licence.

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. 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 are open to the public. This staff member shall be able to show Police recent data or footage with the absolute minimum of delay when requested.

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

15. The number of persons permitted on the first floor at any one time (excluding staff) shall not exceed 60 persons.

16. The sale of alcohol on the premises shall at all times be ancillary to the main use of the premises as the Sweaty Betty retail shop.

17. The supply of alcohol on the premises shall be by waiter or waitress service only to persons seated at tables or seated at the servery.

18. The sale and consumption of alcohol will be limited to the first floor and terrace as edged red and shown on the plans.

19. Substantial food and non-intoxicating beverages, including drinking water, shall be available in all parts of the premises where alcohol is sold for consumption on the premises.

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

21. No waste or recycable materials, including bottles, shall be moved, removed from or placed in outside areas between 23:00 hours and 07:00 hours on the following day.

22. No deliveries to the premises relating to the licensed activities shall take place between 23:00 and 07:00 on the following day.

23. No collections of waste or recycling materials (including bottles) from the premises shall take place between 23:00 and 07:00 on the following day.

24. 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.

25. There shall be no draught beer available on the premises.

26. No alcohol shall be taken from the premises.

27. There will be no sale of alcohol until the works have been assessed as satisfactory by the Environmental Health Consultation Team and this condition has been removed from the licence.

28. The licensed area shall at all times remain under the management of Sweaty Betty Ltd and the licence is limited to their personal use only.

29. 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, which 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 or searching equipment or scanning equipment

g) Any refusal of the sale of alcohol

h) Any visit by a relevant authority or emergency service

30. There shall be no advertising of bar facilities at or in the vicinity of the premises.

31. 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.

32. 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.

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

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

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

Supporting documents:

Sweaty Betty 1-2 Carnaby Street W1, item 5. PDF 725 KB