Agenda item

The licensing officer presented their report.  They advised that the police and the licensing authority had withdrawn their representations.  Members had questions for the licensing officer.

The applicant addressed the sub-committee. The witness for the applicant also addressed the sub-committee.  Members had questions for the applicant and their witness.

The health and safety officer, objecting to the application, addressed the sub-committee.  Members had questions for the health and safety officer.

The environmental protection officer addressed the sub-committee.  Members had questions for the environmental protection officer.

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

The meeting adjourned at 11.35am for the sub-committee to consider its decision.

The meeting reconvened at 12.05pm and the chair advised all parties of the decision.

RESOLVED:

That the application made by Mr. Cain Green and Mr. Latyr Faye for a premises licence to be granted under s.17 of the Licensing Act 2003 in respect of the premises known as Grafterboy Lounge, 332c Camberwell New Road, London SE5 0RW be refused.

Reasons

The Licensing Officer presented his report to the Licensing Sub-Committee who by way of an update, advised the members that on 16 December 2020, a warning letter had been issued concerning an inspection that had taken place on 6 December.  The visit had been carried out to determine whether licensable activities were being carried out.  Whist none were being carried out, during the inspection officers witnessed Shisha being prepared within the basement kitchen area of the premises.  Under the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, restrictions were imposed to protect against the risks to public health arising from coronavirus.  In all three tiers, water pipes used for the consumption of tobacco or any other substance or electronic shisha were prohibited on business premises.  The applicant Cain Green accepted a warning letter had been received.  He did not however, accept that shisha was being prepared on the premises, but rather food and drink.

In addressing the licensing Sub-Committee the applicant, Mr. Cain Green stated that the co-Applicant, Latyr Faye was a business partner until very recently, but that he was no longer a part of the business venture.  Mr. Green mentioned that he was a national ambassador for young people aged 18-25 and gets involved to help improve local and national services.  He was a mentor for the youth.  He wanted to build on this and his vision to modernise Camberwell as there were not many shisha bars in the area.  The premises would be a small café/restaurant and cocktail bar, selling alcohol and small snacks.  Concerning the issues raised by the Environmental Protection Team, the applicant stated that the premises did hold an A4 class planning permission required to operate a shisha café and this was confirmed by the Planning Team.  The operational hours had already been amended and approved by the Metropolitan Police Service and Licensing as a responsible authority.  There would also be no commercial kitchen in the premises, meals would not be cooked.  It was planned that there would only be a preparation room where equipment would be accommodated and ready made meals would be reheated.  Therefore, no odours could escape the premises except via the existing vent. Concerning sound insulation, this was undertaken by the previous owners.  Regardless of this, the applicant said that no loudspeakers would be installed that would allow for amplified music or bass to be nuisance to neighbours.  Ultimately, the premises would not be a pure drinking establishment, there would be a limited cocktail menu containing maximum 11% ABV alcohol content, discouraging alcohol consumption. The drinks menu would be primarily milkshake, smoothie and soft drinks.

The Licensing Sub-Committee then heard from the officer from the Health and Safety Team who informed the members that the Application stated that the main floor would allow shisha smokers, smoking indoors.  It also referred to 50% air coming into the property.  The plan to the premises did not show an outside area and being substantially enclosed, did not comply with the Health Act 2006. The officer also referred to the inspection that he carried out on 6 December 2020 during which he raised concern that the applicant was about to light a shisha and allow smoking inside the premises.  This was a breach of the Health Act 2006 in addition to the Covid Regulations. The applicant’s intention was to permit smoking shisha indoors on the ground floor and possibly conceal shisha smoking in the basement.

During the meeting, the applicant spoke of removing the shop frontage then to achieve the 50% Health Act 2006 compliance, which would still effectively allow smoking within the premises and it would be classed as indoors and thus, still not permitted. The officer also mentioned  activity taking place in the basement which from a fire risk perspective lives would be at risk, if shisha smoking was permitted in the basement.  The officer left the premises,  a group of boys walked out, with one shouting "I will sit outside here with my girl, nobody can tell me I can't, don’t listen to them" .

With the applicant’s agreement, photographs from Instagram were shown to the sub-committee. The photographs clearly showed people smoking shisha pipes. The applicant maintained that the people were family.

The officer from the Environmental Protection Team representation referred to the premises not having planning permission for A4 use and contrary to the applicant’s own representation.  The current planning permission (reference 18/AP/1938) was personal to the previous owners, Sharks Micropubs Ltd which did not confer to the land, so the applicants could not benefit from it. The permission also included conditions prohibiting the provision of hot food in the premises. The planning approval was also conditioned to avoid adverse impacts on the residents that reside above the premises and to the immediate rear. Further, the planning application included the need for a noise impact assessment including the testing of the ceiling/floor separating these premises from the residential above it on the first floor. Because the development did not proceed, the sound insulation was not installed, so noise from activities in the premises would most likely impact on the residents above.

The Licensing Sub-Committee were concerned by the Instagram photographs and did not accept that these were merely promotional showing family members as indicated by the applicant.  The pictures not only confirmed a breach of the Health Act 2006, but also, the various COVID-19 Regulations relating to social distancing and smoking on the premises.  In one of the pictures a pile of canisters could be clearly seen, which strongly resembled nitrous oxide canisters, and two of the people appeared to have balloons at their mouths.  Under the Psychoactive Substantives Act 2016, it is a criminal offence to supply or offer to supply, a psychoactive substance.

During the discussion part of the meeting, the members asked a number of probing questions.  Members queried the low alcohol cocktails referred to in the application; in response, the applicant made reference to the “Sex on the Beach” cocktail, which included vodka and fruit juice.  However, vodka is typically (approximately) 40% ABV and could never be classed as low alcohol. The applicant was also asked about Challenge 25, but his answer was not sufficiently clear. The applicant, Mr Green also demonstrated a lack of understanding regarding off-sales, in that he had applied for off-sales, but did not appreciate that the condition of off-sales of cocktails could not be achieved in take away plastic cups, as these were not “sealed containers”.  Directing patrons to across the road was also considered inappropriate in respect of the off-sales condition of consuming off-sales away from the vicinity of the premises. 

The members also found the premises licence application was also confusing.  The applicants’ original vision for the business came across confused: a shisha lounge bar that provided low alcohol cocktails, a juice bar and appeared to morph offering ready made snacks, a dessert bar and a community hub.  It may be due to the changing face of the hospitality trade due to the COVID-19 pandemic, but the Sub-Committee felt Mr. Green’s lack of experience was highlighted as a result.  The members would strongly recommend that Mr. Green obtains specialist licensing law advice in respect of any future application he may make.

The Grafterboy Shisha Lounge is located in the Camberwell Cumulative Policy Area.  This policy was introduced by the Council in 2008 to address the Licensing Committee’s concern over rising trends of late night alcohol related violence against the person and late night disorder and rowdiness associated with late night licensed premises in the area.  The effect of this policy is to create a presumption that all applications for new premises licences or variations that are likely to add to the existing cumulative impact will normally be refused, following relevant representations, unless the applicant can demonstrate in their operating schedule that there will be no negative cumulative impact on one or more of the licensing objectives.  The applicants have failed to rebut this presumption to refuse this premises licence application.  The sub-committee were referred to R (on the application of Westminster City Council) -v- Middlesex Crown Court [2002] EWHC 1104 in which HHJ Baker adjudicated “Notwithstanding the applicant being a fit and proper person and the premises would be well run a licence could be refused on the sole ground that the area was already saturated with licence premises….and the cumulative effect of the existing premises was impacting adversely on the area to an unacceptable level”. In the circumstances since the premises is located in the Camberwell Cumulative Policy Area, this application is 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 impose conditions on the licence

b)    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:

The  licence ought not to be been granted; or 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.