Agenda item

The licensing officer presented their report. Members had no questions for the licensing officer.

The applicant and their legal representative addressed the sub-committee.  Members had questions for the applicant and their legal representative.

The Metropolitan Police Service representative addressed the sub-committee.  They advised that they would call on the trading standards officer, Bill Masini and the licensing  officer, Alexander Lisowski, as witnesses.  Members had questions for the police and their witnesses.

Both parties were given five minutes for summing up.

The meeting went into closed session at 11.27am.

The meeting resumed at 11.44am and the chair advised the applicant of the decision.

RESOLVED:

That having considered the objection notice submitted by the Southwark Police Licensing Office relating to the application submitted by Nawaz Muhammad to transfer a premises licence under the Licensing Act 2003 in respect of the premises known as Adam News, 6 Coldharbour Lane, London SE5 9PR, the sub-committee has refused the transfer application.

Reasons

The licensing sub-committee heard from the representative for the applicant for the transfer who advise that the only basis upon which the application could be refused was is there was an exceptional reason for the application’s refusal.  The representative referred the sub-committee to various paragraphs to the s.182 Licensing Act 2003 guidance (April 2017), in particular, paragraphs 4.31, 4.33 and 4.39. The applicant had a personal licence and as such could be considered a fit and proper person over the age of 18 who had a legitimate intention to carry on a business.  To demonstrate that this was a genuine business transaction, the representative for the applicant provided a business agreement dated 29 June 2017; a letter from a firm of solicitors dated 18 July 2017 stating that the terms of the lease had been agreed; a letter from a form of accountants also dated 18 July 2017 stating that they were acting as accountants for A Food and Wine Limited and finally a certificate of stock valuation dated 30 June 2017.

The licensing sub-committee heard from the Metropolitan Police Service representative who objected to the transfer application and called a trading standards officer and licensing officer from the council as witnesses. The premises had been the subject of a review application and on 15 June 2017 the licensing sub-committee heard evidence from responsible authorities regarding a catalogue of breaches of the premises licence and evidence of a number of criminal offences. The licensing sub- committee took the decision to revoke the premises licence. The premises licence holder has appealed this decision.  On 30 June 2017 an application was received from the applicant to transfer the above premises licence.

On 11 July 2017 a licensing officer attended the premises to conduct a licensing induction visit, with the applicant.  In advance of this meeting, the applicant had been asked to ensure that the applicant had a copy of the lease agreement and all any other transfer documents which would indicate that he had legitimate control of the premises. This documentation was not forthcoming during the visit, stating that his solicitors were dealing with this matter and that no lease had been signed.  Present during this induction meeting was the owner of the premises (SH), who had also been witnessed working behind the counter of the shop and had been seen working at the premises on previous occasions (16/05/2016, 26/05/2016, 07/07/2017, 11/07/2017 and 17/07/2017).  On questioning SH stated he worked there for free. It was noted that other personnel, in particularly ET (12/05/2016, 23/05/2016, 28/05/2016, 07/07/2017, 11/07/2017 and 17/7/2017) had been witnessed working at the premises both before and after the transfer.

The police, trading standards and licensing were of the opinion that the applicant did not have legitimate control of the premises at either the time of the application or at the date of the licensing sub- committee.

Furthermore, at the conclusion of the induction meeting on 11 July, the licensing officer noticed a number of cans of Zubr lager displayed for sale, and the information displayed on the cans was not English and a is a clear breach of the food labelling regulations. 

The licensing sub-committee considered all written and oral representations before it.  Section.42(6) of the Licensing Act 2003 and Section.182 of the Licensing Act 2003 guidance (April 2017) allows the police in exceptional circumstances to object to a transfer where they believe the transfer may undermine the crime prevention objective.

The premises licence was revoked following a trading standards review on 15 June 2017, when the licensing sub-committee found a catalogue of breached licence conditions, a number of criminal offences committed and an illegal worker working for the previous licence holder.  Whilst there is reference with the s.182 guidance (paragraph 8.100) the objection mechanism being used to vet transfer applicants, the licensing sub-committee were guided to paragraphs 89 and 90 of the Southwark’s statement of licensing policy and the practice of transfer applications being submitted immediately following an application for a review. Where, such applications are made, this transfer applicant’s are expected and required to provide documentary proof of transfer of the business an lawful occupancy of the premises to support the contention that the business is under new management control.

The business agreement refers throughout to assets. It states “the parties agree that the purchase price for the assets…”.  It does not refer to a purchaser’s right to occupy or run a business from that premise.  The business agreement is dated 29 June, a day before the certificate of valuation was issued.  The Business Agreement is between two individuals: MJI and & the applicant. Trading standards confirmed that when MI was interviewed as part of the trading standards investigation, MJI was the sole director of a body corporate, set up in June 2015 in order to operate this business known as Adams News.  The stock was bought as part of that business.  The assets, goodwill and stock belonged to the Limited company, not MI. Any payment for the business should therefore be made to the company, not the individual. The business agreement does not express the right to operate the business there as there is no lease for the premise. Further, 19 days after the business agreement was signed the solicitors wrote to the applicant thanking him for his instructions in respect of a lease. No lease has been supplied to date.  The applicant’s representative showed an un-redacted copy of the business agreement to all parties at the hearing. This showed a purchase price of assets to be £11,557.38; this being the amount exact shown on the stocktaking valuation certificate dated 30 June.  This licensing sub-committee is not convinced that there has been a legitimate business transfer when a mere 2-weeks earlier on 15 June 2017, the licensing sub-committee revoked the premises licence and the applicant was given independent advice to proceed with the purchase, without a lease with the issue concerning the premises outstanding on appeal.  There was also, no evidence of payment provided by the applicant to the MJI.

The licensing sub-committee, similarly have concerns the same personnel working at the premises both before and after the transfer application.  Given the serious history the premises, and as a matter of due diligence, the applicant would be expected to ensure the legitimacy of stock, that the  completion of all transfer of the business/lawful occupation documentation and demonstration of sufficient distance from the poor management practices, including the removal of all previous staff.

This licensing sub-committee is satisfied that the evidence presented provide sufficient exceptional circumstances to reject this application and considers it necessary for the promotion of the crime prevention objective to do so.

In reaching this decision the sub-committee had regard to all the relevant considerations and the four licensing objectives in addition to the provisions of the Human Rights Act and that this decision was appropriate and proportionate in order to address the licensing objectives.

Appeal rights

The applicant may appeal against any decision:

a)  To refuse the application to transfer the premises licence

b)  To refuse the application to specify a person as premises supervisor.

Any person who submitted a relevant objection in relation to the application who desire to contend that:

a)  That the application to transfer the premises licence ought not to be been granted or

b)  That the application specify a person as premises supervisor ought not to be been granted

may appeal against the decision.

Any appeal must be made to the magistrates’ court for the area in which the premises are situated. Any appeal must be commenced by notice of appeal given by the appellant to the justices’ clerk for the magistrates’ court within the period of 21 days beginning with the day on which the appellant was notified by the licensing authority of the decision appealed against.