Agenda item

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

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

The Metropolitan Police Service, objecting to the application, addressed the sub-committee.  Members had questions for the police representative. The chair also allowed the applicant’s legal representative to ask questions of the police.

Both parties were given five minutes for summing up.

The meeting adjourned at 12.15pm for the members to consider their decision.

The meeting resumed at 12.22pm and the chair read out the decision of the sub-committee.

RESOLVED:

That the licensing sub-committee, having considered the objection notice submitted by the Southwark Police Licensing Office relating to the application submitted by Safeer Abbas Shah to transfer a premises licence under the Licensing Act 2003 in respect of the premises known Peckham Food & Wine, 176 Peckham High Street, London SE15 5EG, hasrefused the transfer application.

Reasons

The licensing sub-committee heard from the representative for the applicant for the transfer who advised 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 Section 182 of the Licensing Act 2003 guidance (April 2017), in particular, paragraphs 8.99 and 8.100. The applicant had a personal licence and as such could be considered a fit and proper person over the age of 18.  They advised that he was of good character and had been convicted of no relevant offences.  There was also no intelligence that the applicant was involved in criminal conduct. The applicant had a legitimate intention to carry on a business.  The representative for the applicant stated that the licensing authority was using the police as a conduit, which contradicted Section 42 of the Licensing Act 2003.  It was not unusual for someone new to purchase the business, particularly when review applications were made. Companies House showed the change in management and shareholder details. The licensing sub-committee were urged to consider the application impartially.

The Metropolitan Police Service stated that in their opinion there were exceptional circumstances to object to the transfer of this premises licence, on the grounds of crime and disorder. The premises were subject of a review application submitted by Southwark trading standards. Companies House showed significant changes during the life of Peckham Food & Wine limited. A large number of documents were received by Companies House (for filing in electronic format) on 27 July 2017 and showed that all three directors resigned after the review was submitted by trading standards (on 19 June 2907), with all directors apparently resigning on 1 May 2017. On the same day (1 May) “SI” was re-appointed as a director that very day and resigned again on 27 July 2017. It also showed on 27 July 2017 “KI” served a notice of ceasing to be a person with significant control with effect from 1 May, indicating that from 1 May until 27 July there was no one in significant control. On 27 July the applicant was appointed as sole director. The next day, on 28 July, a new company, Ya Sir Minimarket Limited, was incorporated where the applicant was one of two directors. The other new director of this company was one of the people managing the premises on a day to day basis when the problems arose that led to the review. Furthermore, a check on the history of the company showed the applicant as being the company secretary from 30 May 2007 until his resignation on 30 April 2009. 

Further still, on 10 August 2017 the transfer application was received from the applicant just one day before the review application.  The review application was re-scheduled for 22 August 2017.  On this date (22 August), MI was appointed as a director (backdated to 17 July 2017) and was terminated the very same day. The Metropolitan Police were of the view that this transfer application was a tactic used to circumvent the provisions and objectives of the Licensing Act 2003 in preventing the premises licence being revoked or addressed in some other way. 

The applicant’s representative accepted that the applicant’s brother was the leaseholder to the premises, the previous licence holder and designated supervisor, KI was the applicant’s wife and the two other previous directors of the company (SI and SY) were also family members.

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.

Paragraphs 89 and 90 of Southwark’s statement of licensing policy details the concern and practice of transfer applications of premises licence being made immediately following (or in this case before) an application for a review. In such circumstances the licensing authority would expect to have sight of documented proof of transfer of the business/lawful occupancy of the premises, to the new proposed licence holder to support the contention that the business being under new management control.

Neither the applicant nor his representative provided this documentation. The applicant’s representative is of the view that these paragraphs are unlawful and incompatible with the Licensing Act 2003. Paragraph 14.56 of the Section 182 guidance recommends that statements of licensing policy should provide clear indications of how the licensing authority will secure the “proper integration of its licensing policy with local crime prevention [planning, transport, tourism, equality schemes, cultural strategies and any other plans introduced for the management of town centres and the night-time economy]. Many of these strategies are not directly related to the promotion of the licensing objectives, but, indirectly, impact upon them. The licensing sub-committee are of the view that paragraphs 89 and 90 of its policy, fall under this category.  It is also reminded that whilst it is expected to have regard to the statement licensing policy for their area, it is essentially guidance and may depart from its own policy if the individual circumstances of any case merit such a decision in the interests of the promotion of the licensing objectives.

The applicant’s representative made the most incriminatory comment by referring to paragraph 8.99 of the Section 182 guidance which provides: “In exceptional circumstances where the chief officer of police believes the transfer may undermine the crime prevention objective, the police may object to the transfer. The Home Office (Immigration Enforcement) may object if it considers that granting the transfer would be prejudicial to the prevention of illegal working in licensed premises. Such objections are expected to be rare and arise because the police or the Home Office (Immigration Enforcement) have evidence that the business or individuals seeking to hold the licence, or businesses or individuals linked to such persons, are involved in crime (or disorder) or employing illegal workers”.

Companies House records show the movement of personnel in the business known as Peckham foods & Wine Limited as being frequent; some personnel have been appointed and resigned on the very same day.  The applicant has links with the previous directors, and these persons are involved with crime and employing illegal workers. The applicant may now show as being the sole director and shareholder of the company, the history does not give confidence that it will remain in his name, particularly in view of a second company being incorporated and operating from the same premises. 

The allegations contained in the review application are extremely serious history and as a matter of due diligence, the applicant would be expected to demonstration of sufficient distance from the previous poor management practices, including the removal of all previous staff, which he has failed to do.  It is also noted that this same member of staff is a co-director of the second company operating from the premises, Ya Sir Minimarket Limited. 

In the circumstances, 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.

The meeting adjourned at 12.25pm and reconvened at 1.15pm.