North Ayrshire Licensing Board

Transcription

1 Cunninghame House Irvine KA12 8EE 13 February 2018 North Ayrshire Licensing Board You are requested to attend a Meeting of the North Ayrshire Licensing Board to be held in the Council Chambers, Ground Floor, Cunninghame House, Irvine on Monday 19 February 2018 at A.M. to consider the undernoted business. Yours faithfully Clerk to the Licensing Board 1. Royal Wedding Submit report to the Licensing Board to advise of an inquiry regarding Extended Hours in relation to the Royal Wedding on Saturday 19 May Minutes Submit Minutes of the Board Meetings held on 30 October 2017 and 18 December Licences and Applications under the Licensing (Scotland) Act 2005 Submit report by the Clerk to the Licensing Board on applications under the Licensing (Scotland) Act (copy enclosed)

2 Licensing Board Sederunt: Ronnie McNicol (Convenor) Todd Ferguson ( Vice-Convenor) Robert Barr John Easdale Scott Gallacher Jean McClung Davina McTiernan Donald L Reid Angela Stephen Chair: Apologies: Meeting Ended:

3 AGENDA ITEM 1 Meeting Date: 19 February 2018 Report to North Ayrshire Licensing Board by Solicitor (Licensing) Title Purpose Recommendation Royal Wedding - Policy on Extended Hours under Section 68 of the Licensing (Scotland) Act 2005 To advise the Board of an inquiry That the Board determine whether or not to treat the Royal Wedding on Saturday 19 May 2018 as an exception to its Policy, so that Extended Hours can be granted. (2) if this occasion is to be treated as an exception to Policy, to determine: (a) what additional hours may be granted; (b) whether the additional hours may be allowed only as an addition to the period of Licensed Hours starting on Saturday 19 May 2018, or on any other day; (c) whether there should be a 'curfew', and if so, at what time. U1. Executive Summary 1.1. On Saturday 19 May 2018 the Wedding of Prince Harry and Meghan Markle will take place A Premises Licence Holder has asked all Boards in Scotland to state their Policy on Licensed Hours for that occasion No Applications have been made yet, so the Board's decision on the Policy issue will determine whether or not Delegated Powers may be used if and when Applications are made later. U2. Background 2.1. Ms. Linda Robinson of Greene King plc contacted the Clerk of all Licensing Boards in Scotland by of 9 January 2018: Page 1 of 6

4 AGENDA ITEM 1 "With regards to the upcoming nuptials of Prince Harry to Meghan Markle on 19th May 2018 and following on from the Home Secretary, Amber Rudd s statement 2 days ago "The royal Wedding will be a time of national celebration, and we want everyone to be able to make the most of such an historic occasion. I hope that this relaxation of the licensing hours will allow people to extend their festivities and come together to mark what will be a very special moment for the country.", the government is looking to allow bars and other licensed premises to delay calling time on 18 and 19 May to allow the nation to better celebrate the Royal Wedding. So that we may plan ahead to join in said celebrations, can you advise what your extension policy will be for this event of national significance?" 2.2. That Company are the Premises Licence Holders of three public houses in the Board's area: "Carrick" in Irvine, "Turf" in Irvine "Drouthy Neebors" in Largs The Company proposes an extra hour on both Friday 18th May and Saturday 19th May They are licensed anyway to 1.00 a.m. on the night Friday/Saturday and to midnight on the night of Saturday/Sunday, so the proposed extensions would allow them to 2.00 a.m. and 1.00 a.m. respectively The Company's refers to the action being taken by the Home Secretary under the different licensing legislation in England & Wales. The Home Secretary may make a "Licensing Hours Order" under Licensing Act 2003, Section 172. At the time of the , the Home Secretary was proposing a 4-week consultation on modification of the Licensing laws, increasing on-sales hours to 1.00 am.. This Order would apply throughout England & Wales, without the need for individual premises to apply to local Licensing Authorities This is similar to the power of a Licensing Board in Scotland. The Board can make a Determination "in connection with a special event of local or national significance" under Licensing (Scotland) Act 2005, Section 67, so that Extended Hours would apply automatically throughout the Board's area, without the need for individual premises to apply to local Licensing Board. Page 2 of 6

5 AGENDA ITEM North Ayrshire Licensing Board has never used this procedure in the past (e.g. the Queen's Jubilee). Instead, individual Premises here apply for Extended Hours on a case-by-case basis, with individual Police consultation, and the each Application is determined on its merits (Licensing (Scotland) Act 2005, Section 68) Although the Licensed Hours of individual Premises is set by the Operating Plan attached to each Premises Licence, most on-sales Premises in North Ayrshire will already have the hours contemplated by the Home Secretary. The local Policy on Friday/Saturday and Saturday/Sunday allows 1.00 a.m. as part of the normal hours (52 weeks a year) Extended Hours are only allowed for "a special event of local or national significance" (Licensing (Scotland) Act 2005, Section 68). Accordingly the Board's Licensing Policy Statement says what events are, or are not, eligible for Extended Hours. This list includes: "Public Holidays widely observed in North Ayrshire (e.g. the May Day Holidays and the September Weekend); holidays observed mainly outside Scotland and observed in only a few Licensed Premises in North Ayrshire are not included;" (Paragraph 7.19) 2.8. No Premises Licence Holder, other than the Company, has raised the issue of Extended Hours for the Wedding. The Wedding is on a Saturday and no Bank Holiday under the Banking and Financial Dealings Act 1971 has been proclaimed or Public Holiday has been declared As the Policy stands, a request for Extended Hours beyond 1.00 a.m. to coincide with the Royal Wedding would be outside Board Policy, so any request would have to be referred to the Board for a decision. Therefore the Board is invited to consider whether or not this particular occasion can be treated as an exception to Policy: (a) If the Board agrees to an exception, the Company (and any other Premises Licence Holder in North Ayrshire) could apply to the Board under Section 68 and (subject to any comments from the Police on the particular Application) it is likely that the Application would be granted under Delegated Powers. Since Delegated Powers can probably be used, so that the Application can be determined without reference to the Board, anyone seeking Extended Hours should apply no later than Friday 20 April 2018 (28 days before the Wedding) to comply with the Board's Policy (Annex C to the Licensing Policy Statement "Statement of Practice for Occasional Licences and Extended Hours"); (b) If the Board does not agree to an exception, any Premises Licence Holder could apply but, since the Application would be outside Page 3 of 6

6 AGENDA ITEM 1 Policy, Delegated Powers would not be available so the Application would be referred to the Board for determination (since the only scheduled Board meeting before the Wedding, apart from 19 February, is Monday 30 April 2018, anyone wanting a decision outside Policy would have to lodge the Application by Friday 23 March 2018 (56 days before the Wedding) The Wedding is also on the day of the F.A. Cup Final and Scottish Cup Final. The Board has sought the views of Police Scotland, so the Board can consider the possible effect on the Licensing Objectives: (a) preventing crime and disorder, (b) securing public safety, (c) preventing public nuisance, (d) protecting and improving public health, and (e) protecting Children and Young Persons from harm. if Policy was changed as suggested Members will be given a copy of the response from Sergeant Dougan at Kilmarnock Police Office, Licensing Department (Firearms & Liquor), following discussion with Chief Inspector Brian Shaw. U3. Proposals 3.1. Issues to be considered: (a) should the Wedding lead to an exception to Policy on UanyU day? (b) if so, should there be any difference in the Policy for UparticularU days? The Wedding is also on the day of the F.A. Cup Final and Scottish Cup Final, which is the first of the two days requested; 3.2. If the Board considers that some exception from Policy might be allowed, a possible Policy might be: (a) This Policy relates only to Premises which have, or apply for, Licensed Hours commencing on Saturday 19 May 2018 and ending on Sunday, and is to apply to Applications for Extended Hours under Section 68 of the Licensing (Scotland) Act 2005; Page 4 of 6

7 AGENDA ITEM 1 (b) Premises Licences: the maximum extension of Licensed Hours should be for the period from: (1) the end of the particular Premises Core Hours as stated in the Operating Plan for that day, until (2) one hour after the Policy Hour normally applicable for the particular type of Licensed Premises for that day during the year, except that the extension for nightclubs will be only 30, from 2.30 to 3.00 a.m.; (c) Occasional Licences: the maximum Terminal Hour for should be 2.00 a.m. (on any day); (d) a a.m. curfew should apply to all Licences (whether Premises Licences or Occasional Licences) Paragraph (d) refers to 'Policy Hour' and is not worded simply as one hour after Core Hours because if the extension is related to the UactualU hours held by particular Premises during the rest of the year, this might disadvantage those Premises which have UchosenU to have shorter Terminal Hours throughout the rest of the year. U4. Implications Financial: There are possible financial implications in relation to any Licensing decision, but since the present Report deals with a Policy issue there are no direct financial consequences. Human Resources: Legal: Equality: Environmental & Sustainability: Key Priorities: None. There are possible legal implications in relation to any licensing decision. Depending on the legislation, there may be a right of appeal, but since the present Report deals with a Policy issue there are no direct legal consequences. The Clerk has considered the "Public Sector Equality Duty" in preparing this Report. There are no significant equalities impacts to be considered. None. An effective licensing system (e.g. monitoring the 'fit and proper' status of licence-holders and the compliance Page 5 of 6

8 AGENDA ITEM 1 Community Benefits: with the statutory Licensing Objectives) helps achieve Priority 4 of the North Ayrshire Council Plan , ("Supporting all of our people to stay safe, healthy and active") Not applicable, as the Report does not relate to tendering or procurement exercises. U5. Consultations 5.1 There have been no consultations. ELMA MURRAY Chief Executive Reference: WOB For further information please contact William O'Brien, Solicitor (Licensing) on Background Papers None Page 6 of 6

9 Agenda Item 3 North Ayrshire Licensing Board 19 February 2018 Title: Purpose: Recommendation: Applications for Licences and other matters arising under the Licensing (Scotland) Act To advise the Board of the Law and the factual background. That the Board determines whether or not to grant the Applications listed. 1. Executive Summary 1.1 The Licensing Board is responsible for determining Applications for Licences and other matters arising under the Licensing (Scotland) Act 2005 (such as Review Hearings involving holders of Premises Licences and Personal Licences). 1.2 The Board has approved a Scheme of Delegation whereby certain matters can be delegated to the Clerk and other licensing staff. Matters which cannot be delegated, or where the officers have declined to exercise the delegation, are referred to the Board. 2. Background 2.1 The Applications and other matters before the Board are detailed in the attached appendices. Each appendix contains a Report prepared by licensing staff for each individual case before the Board. These Reports set out the particular factual and legal issues which licensing staff consider arise in each case, and set out the action which the Board would be entitled to take. 2.2 Where relevant, the reports have been copied to the Applicants or Licence-Holders. Where objections or representations are competent, these have been copied to the Applicant so that a response might be made at the Board Hearing. 3. Proposals 3.1 In each case, after considering the Application and after hearing any submissions for the Applicant and persons making objections or representations, the Board should determine whether or not to grant the Application or take appropriate action.

10 4. Implications Financial: Human Resources: Legal: Equality: Children and Young People: Environmental & Sustainability: Key Priorities: Community Benefits: There are possible financial implications in relation to any Licensing decision. None. There are possible legal implications in relation to any licensing decision. Many Board decisions may be appealed against, but not all, and not all parties to a case have a right of appeal. The Clerk has considered the "Public Sector Equality Duty" in preparing this Report and the appendices. There are no significant equalities impacts to be considered. None. None. An effective licensing system (for example monitoring the 'fit and proper' status of licence-holders and the compliance with the statutory Licensing Objectives in Section 4 of the 2005 Act) helps achieve Priority 4 of the North Ayrshire Council Plan , ("Supporting all of our people to stay safe, healthy and active"). Not applicable, as the Report does not relate to tendering or procurement exercises. 5. Consultation 5.1 Consultation has taken place in line with statutory requirements. The requirements vary depending on the particular issue raised, and where appropriate these are detailed in the report for each case. Aileen Craig Clerk For further information please contact William O'Brien, Solicitor (Licensing) on Background Papers See attached list

11 APPENDIX A Premises Licence Applications or any other Applications requiring a Hearing Case No. Licence No. Applicant/Licence Holder Premises Comments /18 Signature Works (Scotland) Limited 18 Bank Street Irvine KA12 0AD Craig McCready Limited Dickson & Co 152A High Street Irvine KA12 8AN Muhammad Anees 22 Speyburn Place Lawthorn Irvine KA11 2BQ Girdle Toll Bowling Club Burns Crescent Girdle Toll Irvine KA11 1AR Pitchers 18 Bank Street Irvine KA12 0AD Irvine 8 Ball Pool Club 21 Townhead Irvine KA12 0BN News Buster 1 Ladyha Court Girdle Toll Irvine KA11 2BQ Girdle Toll Bowling Club Burns Crescent Girdle Toll Irvine KA11 1AR Application for Extended Hours Section 68 Application for Grant of Provisional Premises Licence Section 45 Application for Grant of Provisional Premises Licence Section 45 Application for Variation of Premises Licence Section NA/2379 Derek William James Bain Application for Grant of Personal Licence Section NA/2374 Catherine Hughes Murphy Application for Grant of Personal Licence Section NA/2386 Elizabeth O Hara Application for Grant of Personal Licence Section NA/2388 Mohammed Harrise Khan Application for Grant of Personal Licence Section 74

12 CASE 1 Application for Extended Hours - Section 68 Applicant Stephanie Kerr Premises "Pitchers", 18 Bank Street, Irvine KA 12 0AD Ref. Premises Licence No U1. Extension request: Ref. Day, Date and Period Purpose Proposed Terminal Hour and end date 106/18 Sunday, 1 April 2018 Easter 3.00 a.m on Monday 2 April 2018 U2. Current Licensed Hours The Operating Plan is based on the Premises being in two parts, so the request is to extend the Bar hours by 2 hours and the Nightclub hours by 1 hour. U(a) Lounge [the 'First Floor Bar'] Mon Tue Wed Thur Fri Sat Sun U(b) Nightclub Mon * Tue * Wed * Thur Fri Sat Sun * The nightclub does not in fact open on Mon - Wed. These hours were sought only so that the Premises could apply for Extended Hours during the Festive Period if Xmas Day fell on Mon - Wed - the Board's policy is that EH can only be granted to UextendU, so Premises must already have UsomeU licensed hours that day. The OP expresses this limitation. U3. Consultation When Extended Hours are applied for, the Board informs: Page 1 of 4

13 on CASE 1 (a) the Chief Constable, who is entitled to object if he considers it necessary to do so for the purposes of any of the Licensing Objectives. (b) the Licensing Standards Officer, who is obliged to comment. There is no process of public advertisement and no scope for the public to object. Where there is no adverse comment from either, the Application is granted under delegated powers if it is within Board Policy. At the time of preparing this Report, the Police have not commented. The Police will attend the Board Meeting on 19 February 2018 in connection with a separate issue of Extended Hours Policy, and the Board should raise the present request with them. U4. The General Approach The Board should be satisfied: (a) that the Extended Hours are requested to cover either: (1) a special event or occasion to be catered for on the Premises, or (2) a special event of local or national significance, (b) that the Period of Extended Hours requested is reasonable. In deciding this, the Board is entitled to consider its Policy. The Policy should be seen as no more than a guideline and not a rigid rule. The Applicant is entitled to ask for an exception to be made. In determining the Extended Hours Application, the Licensing Board must take into account (a) any Notice of Objection given by the Chief Constable, and (b) the Licensing Standards Officer s report. U5. Issues with the particular request Application breaches Policy on 'special event of local or national significance': The Board has approved a list of events which are likely to be accepted as appropriate for a grant of Extended Hours (Licensing Policy Statement adopted on 19 November 2013, Paragraph 7.16). The list includes events which do, or do not, fall within the category 'special event of local or national significance'. The event here is Unot U the 'approved' list. The LPS includes: "The Board does not consider that the following are appropriate for Extended Hours: (a) the Easter weekend; Page 2 of 4

14 CASE 1 (b) (c) Local Holidays other than Marymass; Guy Fawkes Night. Applicants seeking Extended Hours on those days should expect that their Applications will be referred to a Board Meeting." U6. Licence Conditions Under Section 70A, when the Board grants an EH Application, it may make such variation, addition, deletion or other modification of the Premises Licence Conditions as it considers necessary or expedient for the purposes of any of the Licensing Objectives. Such a variation only applies during the period of extra hours, and the Conditions continue to apply for the rest of the Licensed Hours as they did before the EH were granted. U7. Future Policy 7.1. If the Board grants the present Application, it should direct whether or not Easter is to be removed from the list in the LPS, and if so how the revised Policy should be expressed, so that these particular Premises, and any other Premises in North Ayrshire, may seek Extended Hours at Easter in 2018 and later years 7.2. If the Board considers that the Policy should be varied, a possible Policy might be: "(a) This Policy relates only to Premises which have, or apply for, Licensed Hours commencing on [Board is to specify whether the additional hours for Easter may be allowed on 1. Friday/Saturday 2. Saturday/Sunday or 3. Sunday/Monday (or any or all of these days)] and is to apply to Applications for Extended Hours under Section 68 of the Licensing (Scotland) Act 2005; (b) Premises Licences: the maximum extension of Licensed Hours should be for the period from: (1) the end of the particular Premises Core Hours as stated in the Operating Plan for that day, until Page 3 of 4

15 CASE 1 (2) one hour after the Policy Hour normally applicable for the particular type of Licensed Premises for that day during the year, except that the extension for nightclubs will be only 30, from 2.30 to 3.00 a.m.; (c) Occasional Licences: the maximum Terminal Hour for should be 2.00 a.m. (on any day); (d) a a.m. curfew should apply to all Licences (whether Premises Licences or Occasional Licences)." Page 4 of 4

16 CASE 2 Application for Grant of Provisional Premises Licence - Section 45 Applicant Craig McCready Ltd. Premises "Irvine 8 Ball Pool Club", 21 Townhead, Irvine, KA12 0BN Ref. 496 U1. Preliminary (a) The Board carried out a Site Visit of the Premises and the surrounding streets on Tuesday 30 January (b) There have been many letters of representation for and against the proposal. Copies will be given to Members before the Meeting. The Board should have regard to the letters whether or not the individual signatories attend the Board meeting. Although all are free to attend the meeting, the Convenor is entitled to ask those present if there are one or more common views, and if so, to nominate spokespersons. (c) Some of the representations are in the form of standard form letters, which differ only in the name and address of the signatory. Rather than give the Board copies of each one, lists have been made and Members will see a representative example of the letter. (d) The Convenor has exercised delegated power to request a report from the Chief Constable detailing all cases of Antisocial Behaviour, and all complaints or other representations made to Police which have taken place on, or in the vicinity of, the Premises, in the previous year. Members will be given a copy of that Report. (The Board's power is under Section 24A, as added by the Criminal Justice and Licensing (Scotland) Act 2010). U2. Summary of Proposal The Applicant has applied for the Grant of a Provisional Premises Licence (PPL). The proposal is for a single storey pool club with a licensed bar. It is the Applicant s intention that the Club will facilitate league matches, local and national pool competitions which adhere to the Scottish Pool Association guidelines. Memberships of the club will be available, but it will not be run as a private member s-only club and will be accessible to the general public. The PPL relates to Premises which are to be constructed or converted for use as Licensed Premises, and is valid for a period of four years. During this period, the Applicant can request the Board to Confirm the PPL, or to extend the period. The Premises cannot sell alcohol until the PPL is confirmed. The Licence-Holder will apply to the Board for Confirmation once the construction or conversion is complete, and after Certificates as to Building Control (and if appropriate Food Hygiene) are issued. Confirmation is usually done by the Clerk or other officers under the Scheme of Delegations. Page 1 of 12

17 CASE 2 The Board decision on the PPL relates UonlyU to licensing legislation, and does not act as permission or certification under other legislation, such as Planning or Building Control. If the PPL is granted, the Premises cannot operate until all other legislative requirements are met. U3. Detailed proposal (a) (b) (c) (d) Licensed Hours Capacity Activities other than the sale of alcohol Access for Under-18s U(a) Licensed Hours The Premises sell both on-sales & off-sales. UOn-Sales Proposal Policy Monday Tuesday Hours requested are Wednesday outside Board Policy Thursday Friday see notes (a) and (b) Saturday Sunday Notes: (a) (b) Early-opening on all 7 days Sunday Terminal Hours U(a) Early-opening on all 7 days Board Policy is that on-sales should not happen before The Premises can UopenU any time the operator wishes, but the Policy on the UsaleU of alcohol is The Policy is a guideline, not a rigid rule, and the Applicants can always ask the Board to treat their individual cases as an exception. The Board's Licensing Policy Statement includes: "7.5. The Board considers that the commencement of On-sales of alcohol before a.m. is likely to be inconsistent with the Licensing Objective protecting and improving public health. Exceptionally the Board may allow early-opening to permit the provision of breakfast facilities for shift workers from nearby factories, markets, etc.. On a case-by-case basis the Board may agree to the hours starting at or after a.m. if the Licence Holder satisfies the Board that there is a need for this, arising from the particular circumstances of the Premises. Page 2 of 12

18 CASE 2 The Board would expect evidence, and not simply anecdotal evidence, that there is an actual need for the hours already licensed Where Applicants seek the grant or variation of Premises Licence to permit On-sales before a.m.: (a) The Operating Plan will have to indicate an intention to provide certain facilities, e.g. the provision of cooked meals throughout the early opening period (snacks and crisps are not considered to constitute 'meals'); (b) The Applicant will require to satisfy the Board that there is a demonstrable demand from patrons to provide those facilities. It is not sufficient to refer generally to 'customer demand'. What is required is evidence that there is a quantifiable demand." At the Site Visit the Applicant told Board Members that the development of the building was in phases and that the installation of a kitchen was to be in a later phase. The Board would be entitled to ask the Applicant to vary the request to This would leave it open for the Applicant to ask the Board later, after the PPL is Confirmed, for earlier on-sales hours. If the Applicant made this request then it would be done as a 'major variation', which would involve intimation to neighbours, the display of a Site Notice, a Board Hearing and a fee equal to the Annual Fee (as due after Confirmation). Given the Policy, there would be no guarantee that that Variation would be granted. U(b) Sunday Terminal Hours Under the Board's Licensing Policy Statement the Policy on Terminal Hours for on-sales which are not nightclubs is: Monday - Wednesday Thursday - Saturday Sunday (LPS Paras ). The position with seeking an exception is similar to (a). UOff-sales Proposal Policy Monday OK Tuesday OK Wednesday OK Thursday OK Friday OK Saturday OK Sunday OK The request is for , 7 days a week. This is the maximum permitted by the legislation and is within NALB Policy. U(b) Capacity Page 3 of 12

19 U (c) CASE 2 On-Sales (persons) 135 Standing / Seated 93/42 Off-Sales (sq. mtr.s) Not stated. Applicant has failed to include this in the mandatory Operating Plan and must advise the Board of the correct figure either in writing or by attending the Board Meeting. Regulations require locations and dimensions of all Off-sales display areas. Dimensions required are length and height. The capacity figure will be added to O.P. 7 if the Licence is granted. Activities other than the sale of alcohol Accommodation Conference facilities Restaurant facilities Bar meals Receptions (including weddings, funerals, birthdays, retirements, etc.) Club or other group meetings Recorded music Live performances Dance facilities Theatre Films Gaming Indoor/Outdoor sports Televised sport Proposed X X X X X X Outdoor Drinking Adult entertainment Proposed Other activities The Provision of food during events such as competitions and functions i.e. kids parties U(d) Access for Under-18s Terms and Ages (OP 6(b) & (c)) Children aged 0-11 years must be accompanied by an Adult. Children aged and Young Persons may attend unaccompanied. Times (OP 6(d)) Children aged 0-11 years until Children aged until if unaccompanied by and Adult but until if accompanied by an Adult. Page 4 of 12

20 CASE 2 Young Persons until NB: During Private functions all Under-18s will be permitted access for the full duration of the premises licensed core hours. Parts (OP 6(e)) Children 0-9 years will not be permitted within 2 metres of the pool table. Children aged 0-11 years will not be permitted access to the bar or within 2 metres of the dart board Children aged and Young Persons may be present at the bar area to purchase soft drinks and snacks. U4. Issues Advice: The Board has a discretion to grant or refuse the Application. In UallU Applications, whether or not there are third-party objections, the Board must consider whether or not any of the potential Ground(s) for Refusal set out below exist: (a) The Application may be inconsistent with Licensing Objective(s) (b) Overprovision may result if the Application is granted If any Ground for Refusal applies, the Board must refuse. However, the Board is obliged to grant the Application if the Applicant accepts a suitable modification to the Operating Plan or Layout Plan (or both), where that modification deals with the potential Ground for Refusal: Section 23(7). If no Ground for Refusal applies, the Board must grant: Section 23(4)-(5). (a) Licensing Objectives In UallU Applications, whether or not there are third-party objections, the Board must consider whether or not the Application is inconsistent with any of the Licensing Objectives. Any decision at the time of grant may be later reviewed if the Board is satisfied that the operation of the Premises is not consistent with any of the Licensing Objectives (Sections 36-39). The Board may then take such steps as it considers necessary or appropriate for the purposes of any of the Licensing Objectives. The available actions are: (a) to issue a Written Warning to the Licence Holder, (b) to make a Variation of the Licence, (c) to Suspend the Licence for such period as the Board may determine, (d) to Revoke the Licence. Page 5 of 12

21 CASE 2 UL.O. (a): 'preventing crime and disorder' The request for hours outwith the Board s Policy may be considered as being inconsistent with this Licensing Objective. This is because, when the Policy was originally adopted it took into consideration representations made by the Police. The Policy operates throughout North Ayrshire and if the Board was to depart from its Policy here, it might receive similar requests from all over NA. UL.O. (c) preventing public nuisance The Applicant does UnotU seek an 'Outdoor Drinking Area'. As the Premises are not currently operating the Board might consider that it would be premature to speculate that undue nuisance would be likely. If the Board is satisfied that any activities on the Premises are likely to cause nuisance, the Board is entitled to ask the Applicant to vary the proposal, e.g. to alter the times or locations of activities which might lead to noise or other nuisance. Unless the Board prohibits the use of land outside the building entirely, the Applicant is free to use it smoking. If the Board wishes to prohibit UallU use of the Area (e.g. even for smoking), it may amend the Layout Plan (whether or not it attaches Condition X.4). The Board is obliged to take account of two Licensing Objectives: (c): 'preventing public nuisance' (d): 'protecting & improving public health' but may take the view that as there is no current objection from NAC Protective Services it is not appropriate to pursue these at present. If there is Ulater U a neighbours) substantial noise problem, it will be open to anyone (e.g. - to refer the matter to NAC Protective Services under the Environmental Protection Act 1990, Section 80 - to make a Review Application to the Board under 2005 Act, Section 36. The Licensing Board is not entitled to determine matters which are regulated by other legislation, such as Planning and Parking Act, Section 27(7) is: "A Licensing Board may not impose a condition under subsection (6) which... (c) relates to a matter (such as planning, building control or food hygiene) which is regulated under another enactment. " Planning is a matter for North Ayrshire Council under the Town and Country Planning (Scotland) Act Parking is a matter for the Police (under the Road Traffic legislation) and the NAC Roads Dept. under the Roads (Scotland) Act Page 6 of 12

22 CASE 2 (b) Overprovision 1. Section 23(5) is: "(5) The Grounds for Refusal are... (e) that the Board considers that, if the Application were to be granted, there would, as a result, be Overprovision of Licensed Premises, or Licensed Premises of the same or similar description as the subject premises, in the Locality." Section 23(5) was amended by the Air Weapons and Licensing (Scotland) Act 2015, Section 55(3) with effect from 30 September 2016 (Commencement Order 4, S.S.I ). 2. There is a rebuttable presumption of refusal due to Scottish Government guidance and the Board's own Licensing Policy Statement (LPS , Annex E). It is not necessary, for the presumption of refusal to apply, for there to be any objection made by a third party. 3. The application of the Board's Overprovision Policy in a particular case is affected by two issues: (a) the 'Locality' of the Premises (The Board has determined that there are 6 'Localities' in their area, coinciding with the 6 'Neighbourhood Areas' used by the North Ayrshire Community Planning Partnership). (b) the 'Function Type' of the Premises (there are 6): 1. Off-sales Premises; 2. Nightclubs (or parts of Premises which operate as nightclubs); 3. Other On-sales Premises (Public Houses); 4. Hotels, Restaurants and other On-sales Premises whose principal function is the provision of accommodation, meals or non-alcoholic refreshment and the supply of alcohol for consumption is only ancillary to that purpose; 5. Members' Clubs which are entitled to the Special Treatment allowed by Section 125; 6. Members' Clubs which have chosen to give up their entitlement to that Special Treatment. 4. The Board should consider any submissions made by the Applicant and any interested party, and take into account those submissions and the following presumptions: (a) the existing number and capacities of Premises in that 'Locality' and in Page 7 of 12

23 CASE 2 that 'Function Type' is already sufficient, (b) (c) Overprovision would result if the Application was to be granted, and the Application should be refused. 5. The starting-point of any consideration of an Application for a new Licence (or for an increase in capacity in an existing Licence) is that there is a presumption of UrefusalU. This presumption applies anywhere in North Ayrshire, regardless of the type of licensed Premises, but the presumption becomes stronger in certain parts of North Ayrshire and certain types of Premises. 6. While there is a presumption of refusal of UallU Applications, the presumption in a particular case is strengthened if UoneU of the Additional Factors relating to 'Locality' or 'Function Type' is present. The presumption of refusal is further strengthened if UbothU Additional Factors occur. 7. Applying the Policy to the present case: (a) The Subject Premises are in the Irvine and Area Locality (Irvine, Bourtreehill, Cunninghamhead, Dreghorn, Gateside, Girdle Toll, Springside & Torranyard) (Locality 4); (b) Additional Factor (Locality): The Premises are in a Locality where Applications are especially unlikely to be granted ( UregardlessU of the Function Type); (c) The Subject Premises are in Function Type 3 (On-sales other than entertainment venues, e.g. public houses); (d) Additional Factor (Function Type): any Application for Premises in FT 3 (public houses) is especially unlikely to be granted ( UregardlessU of the Locality). 8. Since both Additional Factors are present here, the presumption of refusal is especially strong. 9. The Policy is only a guideline and does not set rigid quotas. It would always be open to the particular Applicant to seek to persuade the Board that the Application should be granted. The Board will expect Applicants who are seeking the grant of a new Licence (or the increase in capacity in an existing Licence) to provide robust and reliable evidence as to why the benefit to each of the Licensing Objectives outweighs the apparent detriment to those Licensing Objectives. 10. The Board has ensured that the statistical basis of the Policy remains up-todate. The Board has considered in cases since the LPS was adopted that it continued to be a reliable guideline. Extensive statistics, both on health and other matters, were considered prior to it being adopted, and the Board has been kept informed on more recent developments. At its meeting on 19 January 2015 the Board Page 8 of 12

24 CASE 2 had received a Report on two further health reports produced since the current LPS was prepared: (a) "Alcohol-related illness and death in Scottish neighbourhoods: is there a relationship with the number of alcohol outlets?" - Report for Alcohol Focus Scotland (AFS) produced by the "Centre for Research on Environment, Society and Health" of the Universities of Glasgow and Edinburgh, published 2 October 2014 ("CRESH"); (b) "Monitoring and Evaluating Scotland's Alcohol Strategy", Report published by NHS Health Scotland, 4th Annual Report, published 8 December 2014 ("MESAS 4"). At its meeting on 18 December 2017 the Board considered a Report concerning the most recent MESAS Report ("Monitoring and Evaluating Scotland's Alcohol Strategy): Monitoring Report This Report to the Board included a summary of the MESAS 2017 Report. The Board noted that the author of the CRESH report, while saying that there was a correlation between the number and density of alcohol outlets, acknowledged that it could not be said on the basis of the information available that there was a causal link: "The alcohol-related hospitalisation results suggest the existence of outlet availability thresholds over 6 off-sales, 9 on-sales, or 14 total outlets within 800 m below which hospitalisation rates did not differ, but above which rates increased significantly.... while [the CRESH study] suggested significant associations between outlet availability and alcohol-related harm we cannot conclude that the relationship is causal." AFS had also published local authority factsheets, and the one for North Ayrshire noted that a significant positive relationship was found between outlet density (onsales premises) and alcohol-related deaths and hospitalisations. It stated: "Alcohol-related harm In North Ayrshire as a whole there is: - An annual average of 35 alcohol-related deaths (26 deaths per 100,000 adults). This is similar to the Scottish average of 25 deaths per 100, An average alcohol-related hospitalisation rate ratio of 148. This is 48% higher than the Scottish average of 100." The factsheet had a caveat recognising the correlation vs. causal link distinction: "This study shows a relationship between alcohol outlet density and alcoholrelated heath harms, but does not definitively conclude that there is a causal relationship. Proving something is causal with population level data is difficult because of the ethical and financial constraints in conducting the studies needed to prove a causal relationship. Often it is necessary to use the best possible population level evidence we have to determine what is likely, probable or reasonable in the absence of the studies that would provide Page 9 of 12

25 CASE 2 causal evidence." The Board has appreciated the distinction, and acknowledged that it is likely to be impossible to say, pointing at particular Premises: "the operation of these Premises is inconsistent with the 'protecting and improving Public Health Licensing Objective' ". It is particularly difficult to say that where the Premises have not yet opened. However, the Board has accepted that it is legitimate to consider the whole 'Locality' generally when assessing Overprovision, and that is what the Board have done. The Board have been satisfied that throughout North Ayrshire there has for many years been a significant negative causal link between alcohol provision and Public Health. This leads to a presumption of refusal against any grant of either a new Licence or the increase in capacity in an existing Licence. 11. The LPS, Annex E includes: "4.5(d)... the Board accepts that the consumption of alcohol in any circumstances has the potential to injure health, and endorses the view that alcohol is not an ordinary commodity..." " The Board will expect Applicants who are seeking the grant of a new Premises Licence or a Variation which increases the capacity under an existing Licence to provide robust and reliable evidence as to why the benefit to each of the Licensing Objectives outweighs the apparent detriment to those Licensing Objectives. The Board will expect to be addressed on the way the promotion of each Licensing Objective will be achieved by granting the Application." 12. The LPS includes a spreadsheet comparing 10 Health indicators (taken from the 'Health and Wellbeing Profiles Spine Pack'). This spreadsheet rates each of the 38 Intermediate Zones in North Ayrshire (grouped in the six Localities). Indicators are colour-coded by a 'Traffic Light' system which colours each indicator: red : Statistically significantly 'worse' than Scottish average white : Statistically not significantly different from Scottish average blue : Statistically significantly 'better' than Scottish average To summarise the position over the whole of North Ayrshire: Locality Red Blue 1. North Coast Three Towns Kilwinning Irvine etc Garnock Valley Arran 0 5 In the Board's view the Additional Factor related to Locality should apply in Localities Page 10 of 12

26 CASE 2 2,3,4 and 5, but not 1 or Observations (a) Gaming The Operating Plan includes 'Gaming'. The provisions of the Gambling Act 2005: - allowing "Equal Chance Gaming" (such as Poker) without a Permit - allowing the use of Gaming Machines without a Permit (called "the Automatic Entitlement") - allowing the playing of Bingo without a Licence - Licensed Premises Gaming Machine Permits only allow Gambling during the Core Licensed Hours. If the Premises are open outside these hours then there must be no gaming and any Gaming Machines should be switched off. The Applicant should discuss with the Licensing Standards Officer or other Licensing staff what permits will be needed, e.g. the "Authorised Entitlement" does not take effect until the Board are notified. (b) Exclusion area around bar Having regard to the Licensing Objectives "preventing crime and disorder" and "protecting children from harm", Applicant should confirm that these words can be added to the Operating Plan (OP 6(e)): "No person under 18 will be permitted to remain within 1 metre of any bar." (c) Baby-changing Facilities Since the Premises are to admit children under 5, the Mandatory Condition requiring Baby-Changing Facilities accessible by both genders applies (Sch. 3, Para. 12, SC C.3). Since the condition is mandatory by statute, the Board have no power to vary it or dispense with compliance. The Application does not indicate where these facilities would be. Applicant should: (a) state where such facilities will be (e.g. in the 'disabled toilet'), or (b) amend the Operating Plan to exclude children under 5; or (c) give Board an undertaking that the Premises will not open until necessary facilities are available to the public. Page 11 of 12

27 CASE 2 Without such facilities, or without children under 5 being excluded, the Board may consider that reasons to refuse exist: (a) inconsistent with L.O. (d) ("protecting and improving public health"); (b) inconsistent with L.O. (e) ("protecting children from harm"); (c) Premises are unsuitable for use for the sale of alcohol, given that their use will involve a breach of a mandatory licence condition. 6. Licence Conditions If the Licence is granted, it will be subject to the following parts of the NALB Standard Conditions (Edition 5, made on 1 September 2009, as read with later amendments of the statutory mandatory conditions): A B C F (All Premises) (Off-Sales) (On-sale Premises) (Entertainment) Page 12 of 12

28 Applicant Premises Application for Grant of Provisional Premises Licence - Section 45 Ref. 497 Muhammed Anees "News Buster", 1 Ladyha Court, Irvine, KA11 1QN U1. Summary of Proposal CASE 3 The Applicant has applied for the Grant of a Provisional Premises Licence (PPL). The proposal is for an off-sales capacity of square metres within a freestanding convenience store in a residential area. The shop at present sells food, groceries, newspapers, magazines, sweets, tobacco and soft drinks, but no alcohol. The request is for , 7 days a week. This is the maximum permitted by the legislation and is within NALB Policy. This is the fifth Application by the same Applicant for the same Premises. The last refusal was on 12 December The previous cases were: (a) On 10 July 2014 the Board refused a PPL Application where the capacity requested was 24.6 sq.m. (NALB 456); (b) On 17 November 2014 the Board refused a PPL Application where the capacity requested was sq.m. (NALB 463); (c) On 22 February 2016 the Board refused a PPL Application where the capacity requested was 4.6 sq.m. (NALB 475). The initial request was for sq.m. but the proposed capacity was reduced to 4.6 sq.m. during the submissions to the Board by the Applicant's agent; this was to be only the area behind the counter, as opposed to a publicly-accessible area in the body of the shop; (d) On 12 December 2016 (NALB 486) the Board refused an Application seeking sq.m.. The Board carried out a Site Visit on 9 July 2014, immediately before the first decision. Part of the Applicant's submissions in relation to these Applications was that there was likely to be a housing development nearby of 185 to 200 houses. The submissions made to the Board in relation to decision (c) are noted in the Statement of Reasons which was issued to the Applicant shortly afterwards. The Board on 19 February 2018 will have a copy of that Statement of Reasons. U2. Effect of a Provisional Premises Licence The PPL relates to Premises which are to be converted for use as Licensed Premises, and is valid for a period of four years. During this period, the Applicant can request the Board to Confirm the PPL, or to extend the period. Page 1 of 9

29 CASE 3 The Premises cannot sell alcohol until the PPL is Confirmed. The Licence-Holder will apply to the Board for Confirmation once the construction or conversion is complete, and after Certificates as to Building Control (and if appropriate Food Hygiene) are issued. Confirmation is usually done by the Clerk or other officers under the Scheme of Delegations. The requirement to lodge a Food Hygiene Certificate depends on whether or not there is a 'Food Business' within the Food Safety Act A FHC is needed even for a shop which sells tinned or packaged food, as well as for a restaurant or any Premises serving prepared food. The Board decision on the PPL relates UonlyU to licensing legislation, and does not act as permission or certification under other legislation, such as Planning or Building Control. If the PPL is granted, the Premises cannot operate until all other legislative requirements are met. U3. Objections and Representations These will be copied to the Applicant and circulated to Members with the background papers. U4. Issues Advice: The Board has a discretion to grant or refuse the Application. In UallU Applications, whether or not there are third-party objections, the Board must consider whether or not any of the potential Ground(s) for Refusal set out below exist: (a) the Application may be inconsistent with the Licensing Objectives (b) Overprovision may result from the grant of the Licence If any Ground for Refusal applies, the Board UmustU refuse. However, the Board is obliged to grant the Application if the Applicant accepts a suitable modification to the Operating Plan or Layout Plan (or both), where that modification deals with the potential Ground for Refusal: Section 23(7). If no Ground for Refusal applies, the Board UmustU grant: Section 23(4)-(5). 0B(a) the Application may be inconsistent with the Licensing Objectives Any decision at the time of grant may be later reviewed if the Board is satisfied that the operation of the Premises is not consistent with any of the Licensing Objectives (Sections 36-39). The Board may then take such steps as it considers necessary or appropriate for the purposes of any of the Licensing Objectives. The available actions are: (a) to issue a Written Warning to the Licence Holder, (b) to make a Variation of the Licence, (c) to Suspend the Licence for such period as the Board may determine, Page 2 of 9

30 CASE 3 (d) to Revoke the Licence. UL.O. (c): 'preventing public nuisance' As the Premises are not currently operating the Board might consider that it would be premature to speculate that undue nuisance would be likely. If the Board is satisfied that any activities on the Premises are likely to cause nuisance, the Board is entitled to ask the Applicant to vary the proposal, e.g. to alter the times or locations of activities which might lead to noise or other nuisance. Unless the Board prohibits the use of land outside the building entirely, the Applicant is free to use it smoking. If the Board wishes to prohibit UallU use of the Area (e.g. even for smoking), it may amend the Layout Plan (whether or not it attaches Condition X.4). The Board is obliged to take account of two Licensing Objectives: (c): 'preventing public nuisance' (d): 'protecting & improving public health' but may take the view that as there is no current objection from NAC Protective Services it is not appropriate to pursue these at present. If there is UlaterU a substantial noise problem, it will be open to anyone (e.g. neighbours) - to refer the matter to NAC Protective Services under the Environmental Protection Act 1990, Section 80 - to make a Review Application to the Board under 2005 Act, Section 36. The Licensing Board is not entitled to determine matters which are regulated by other legislation, such as Planning and Parking Act, Section 27(7) is: "A Licensing Board may not impose a condition under subsection (6) which... (c) relates to a matter (such as planning, building control or food hygiene) which is regulated under another enactment. " Planning is a matter for North Ayrshire Council under the Town and Country Planning (Scotland) Act Parking is a matter for the Police (under the Road Traffic legislation) and the NAC Roads Dept. under the Roads (Scotland) Act UL.O. (d): 'protecting & improving public health' The L.O. expressly states 'improving'. Opinions may differ as to whether the creation of a new facility to sell alcohol (or the expansion of an existing facility): (i) damages public health, or Page 3 of 9