Agenda item

The meeting adjourned at 10.20am for the applicant to be contacted in order that they could address the sub-committee and be questioned by the sub-committee.  The meeting reconvened at 10.40am.

The licensing officer presented their report.  The licensing officer informed the sub-committee that the licensing agent for the application had written to him to advise that she would not be attending the meeting and that she would have advised against the DPS transfer and variation, given that the premises was also subject to a review. Members had questions for the licensing officer.

The applicant addressed the sub-committee.  Members had questions for the applicant. The police also had questions for the applicant, which the chair allowed.

The Metropolitan Police Service representative addressed the sub-committee.  They also called a trading standards officer as a witness.  Members had questions for the police and their witness.

Both parties were given up to five minutes for summing up.

The meeting adjourned at 11.49am for the sub-committee to consider its decision.

The meeting reconvened at 12.14pm and the chair advised all parties of the decision.

RESOLVED:

That the applications made by Gul Mohammed for the variation of the designated premises supervisor (DPS) under s.37 and transfer of the premises licence under s.42 of the Licensing Act 2003 in respect of the premises known as the Foodlink, 98-100 Wyndham Road, London SE5 0UB be refused.

Reasons

At the start of the meeting, neither the applicant, nor his representative was present. 

The licensing officer informed the sub-committee that he had received an email from the applicant’s representative that read:

“Thank you for your emails.  I will not be attending the hearing today as I had not been made aware at any time of the situation relating to the premises and was only asked to deal with the transfer and change of DPS applications.  If I had been aware of the circumstances regarding the transfer I would have advised them that this was not an appropriate action to be taken under the circumstances. I presume that they have another agent who is representing them at the review hearing”. 

Since the previous premises licence holder and DPS, Sohail Khan was present, he was asked to make contact with the applicant, requesting that he attend, which he did. The sub-committee noted that Mr Khan appeared surprised that he would not be allowed to make representations on behalf of the applicant.

The licensing sub-committee heard from the applicant who informed the members that he had signed a business operating agreement on 9 September 2020 and since this time, the business was his.  He stated that he had not worked at the premises prior to 9 September nor did he have any links to Sohail Khan.

The applicant stated that as he had not worked for three months, a friend of his had informed him of Foodlink being for sale.  He recognised the premises potential and took over the premises for five years, buying the stock and paying Sohail Khan £2,000 compensation weekly.  The applicant also accepted that he had not been a business proprietor before, nor had he worked in retail, but understood his obligations under the Licensing Act 2003, having been trained by a friend. However, he was unable to answer when asked about the condition in respect of invoices.  He was also unable to assist the sub-committee concerning who the supplier’s to Foodlink were and he advised that ordering stock was made from looking at the shelves in the shop. 

The applicant confirmed that he was aware that the premises was being reviewed and stated that he was not interested in selling alcohol; ultimately, he wanted to train and then run a butcher’s.  When questioned the applicant as to what proportion of total sales related to alcohol, the applicant was uncertain. When pressed for a figure, he said that alcohol sales made up approximately 30% of Foodlink’s overall sales. Initially the applicant said that weekly profits were between £15-17,000, which he then corrected to £7,000 on the advice of someone else who could heard advising the applicant, whom he advised was his wife. When asked to clarify whether the £7,000 was profit or turnover, the applicant was unable to do so.

The licensing sub-committee heard from the representative of the Metropolitan Police Service who also called a trading standards officer as a witness.  The sub-committee members were informed that following the execution of a police warrant on 3 July 2020 a Section 51 review of the premises licence to Foodlink was submitted by the police.  The  DPS variation and premises licence transfer were submitted on 14 September 2020 by a licensing consultant who informed the licensing officer that she has had no contact with the applicant, Mr Mohammed, nor had she a contact number for him or an email address. She had confirmed that all her dealings had been with Sohail Khan. 

It was the police contention that the DPS variation and premises licence transfer was an abuse of process and an attempt to circumvent the review process. The applications had been submitted on behalf of Sohail Khan and without the licensing agent being authorised by the applicant and the applications should have been rejected from the outset.

By the applicant’s own admission, he had no previous retail experience, no experience in the sale of alcohol and no had not run a business before. The land registry had been checked that morning and Sohail Khan remained the freeholder of 98-100 Wyndham Road. The business operating agreement provided that morning allowed for a 28 day break clause, so that the Foodlink business could revert to Sohail Khan after the break period.  This evidence demonstrated that Sohail Khan would remain the controlling influence of the premises.

Foodlink is a known problem premises and the sub-committee were extremely concerned with the applicant’s lack of business, retail or sale of alcohol experience.  The applicant demonstrated that he did not know the conditions of the premises licence to the premises.

The licensing sub-committee was reminded of paragraphs 98 and 99 ofSouthwark’s statement of licensing policy which provides:

“Applications for transfer of a premises licence following application for a review

98. This authority is concerned over the frequently observed practice of an application for a transfer of a premises once being made following an application for a review of that same licence being lodged.

99. Where, such applications are made, this authority will require 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 is now under new management control”.

Neither application provided any supporting documents or additional information that would support the suggestion that this business is now under new management control.  The applicant provided an unsigned business operating agreement late (at 12:33am on

17 September 2020) and in a format that could not be adequately considered by the police or the sub-committee. Regardless, it was verbally established that the document contained a 28 day break clause. The previous premises licence holder was also remained the freeholder owner. In summing up, the applicant also stated that he had no knowledge of the pending review application. 

In the circumstances, the licensing sub-committee were therefore satisfied that the applications were an attempt to circumvent the full review process under Section 51 of the Licensing Act 2003 thereby undermining the crime and disorder licensing objective.  Therefore both applications are refused.

In reaching this decision the sub-committee had regard to all the relevant considerations and the four licensing objectives and considered that this decision was appropriate and proportionate.

Appeal rights

The applicant may appeal against any decision:

a)  To refuse the variation of the designated premises supervisor

b)  To impose conditions on the licence

c)  To exclude a licensable activity or refuse to specify a person as premises supervisor.

Any person who made relevant representations in relation to the application who desire to contend that:

a)  The licence ought not to be been granted; or

b)  That on granting the licence, the licensing authority ought to have imposed different or additional conditions to the licence, or ought to have modified them in a different way

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.