Contains new information from the applicant.

The Hearing Panel considered a report from the Director of Planning, Building Control and Licensing concerning an application for a New Premises Licence. The Hearing Panel considered the written papers of the parties submitted and the oral representations of the parties who attended, as well as the relevant legislation.

 

The applicant’s representative, Mr N Semper attended with the applicants Mr and Mrs Bansal along with Ben Scott from Licensing and Out of Hours compliance Team (LOOH) and Naaira Zaman from Public Health.

 

The Chair conducted the hearing in accordance with the agreed procedure.

 

The applicant’s agent addressed the Hearing Panel and stated that this was a 24 hour alcohol home delivery service application run by responsible operators and using their own drivers. The applicants run 2 other schemes in Trafford and Warrington without any issues. As well as alcohol, there was delivery of other everyday products. As the applicants had other identical schemes, they would like to have this application treated in accordance with these others. All objections would have to be evidence based and addressing this application. Furthermore, the applicants have to be able to prove that they are able to uphold the licensing objectives and there was no evidence or history against the applicants. Of all the responsible authorities, only LOOH and Public Health remained with LOOH’s main concerns being around Challenge 25 and driver training. The applicants had submitted a previous application which was declined by the Hearing Panel and there were now 17 conditions proposed. LOOH had concerns about refusals and there was also a new operating schedule, submitted for all concerned in a supplementary agenda. There were paragraphs highlighted in yellow that specifically address points from the city council’s own Statement of Licensing Policy. With regard to Special Policy Areas, the unit must be within the boundary of such an area for it to be considered as potentially in breach of the policy, therefore the application could not be restricted for this reason. Where objections were concerned, there was nothing set out concerning Public Health and the protection of children from harm. Alcohol would be stored, driven and delivered within private spaces and would not lead to any unsealed alcohol in the public realm. For this reason, Public Space Protection Orders (PSPOs) were not relevant. Representations against the application mentioned public nuisance and there had been an added condition to address this with the quiet delivery of goods. Paragraphs from the Statutory Guidance concerning noise, light, smells, infestations and litter were noted and it was then stated that there would be no public nuisance as a result of this unit’s operations. There would be no third party deliveries and Condition 9 referred to the training. It was noted that a legal case had been relied upon whereby a premises was located within a Special Policy Area in Camden, London and was still granted. There was no mention of children being at risk of harm and there was some research from New Zealand where it was mentioned that this kind of premises “may lead to children being affected by alcohol dependent parents.” Yet, there was no evidence of this stemming from the operations of the applicants. The agent stressed that data must be presented properly and stated that, with regard to public nuisance, this unit was not located in any special policy area and alcohol remained in sealed containers, within private units and vehicles at every point in their operations. All attendees were aware of the 4 licensing objectives and Public Health was not one of them. In saying this, the agent welcomed the representative from Public Health’s contribution, but this would have to be evidence based and there was no evidence of this business selling alcohol to underage minors or alcoholics. The applicants had no intention of breaking this rule as they were aware this could threaten their livelihood. In closing comments, the applicant’s agent stated that there were many conditions to uphold all 4 licensing objectives and added that the Hearing Panel would have to similarly consider the operations of all major supermarkets in Special Policy Areas if considering adding this unit’s operations under the policy as well. Fear and speculation were not permissible in decision making and any objections taken into account must be evidence based as per the Thwaites case of 2008. There was no history of any problems with the operators at their premises and, if there were any, a Section 51 of the Licensing Act stated that a review of the licence could be applied for and dealt with accordingly.

 

The Chair noted there had been several legal arguments made and case law referred to by the applicant’s agent therefore the hearing panel requested an adjournment for the Hearing Panel’s Legal Representative to check their relevance to the matter in front of the Hearing Panel today.

 

After the adjournment whereby the Legal Representative to the Hearing Panel was satisfied of their research on matter raised in the applicant’s agent’s representations, the Legal Representative stated that the only legal cases raised in the agent’s presentation bearing any merit was the Thwaites Case and it was also agreed that each case is determined on its own merits. Noting that the applicant had a prior hearing which had seen the licence refused, the Legal Rep stated that that was in the past and this was a new application, again to be determined on its own merits today. The Special Policy Area did not cover this premises, therefore there were no such restrictions on this premises. Whilst Public Health was not one of the Licensing Objectives, the comments of the Public Health representative on the licensing objectives would be considered and weight attached to those comments as deemed appropriate. The Licensing Objective of Public Nuisance was still deemed relevant, and the operations had to be considered as a whole and there was case law on this matter. The Hearing Panel’s decision making was not bound by the Deputy District Judge’s decision, as referred to by Public Health, but the Thwaites case, as a High Court case was binding. All Committee Members were familiar with this case and the associated need for proper and real evidence with no decisions based on fear and speculation. Finally, the Hearing Panel could consider the effect on PSPOs but this would need to be evidence based.

 

Public Health posed a question regarding the Special Policy Areas and the delivery of alcohol within these zones and how they would be stopped from exacerbating issues when premises within those zones would not be able to operate.

 

The Legal Representative stated that the wording of the policy was that the policy “SHALL have effect for applications for premises included in the defined Village area as seen on the map shown” and noted that the premises was based in Ardwick, not within any Special Policy Area.

 

The Chair confirmed that previous applications, supermarket operations, other similar services, other premises run by the applicants were all not relevant issues to this case and that relevant questions must be concerning the operations of the premises in this application. Public Health were also noted as being a responsible authority and their comments would be judged based on the evidence given with in them.

 

The Chair moved to the next procedure which was questions to the applicant.

 

LOOH asked if the applicant could explain the need for the licensing objectives.

 

The applicant named all 4 licensing objectives and stated that they were there to make people feel safe, ensure that premises were environmentally friendly, responsible with regard to children and their safety by use of Challenge 25 and photo ID checks and that the business runs correctly.

 

LOOH asked about vehicles.

 

The applicant stated that all vehicles used would be private cars, fully insured for the purposes of the business and would only deliver to registered addresses.

 

LOOH asked the applicant to explain why the Statement of Licensing Policy existed.

 

The applicant stated that it was to ensure that businesses avoided increasing public nuisance, used Challenge 25, had proper delivery operations, refusal logs, customer details logs, driver details all so the premises could provide details to the responsible authorities on demand.

 

LOOH then asked about PSPOs.

 

The applicant stated that PSPOs prevented drinking of alcohol in open spaces and confirmed that drivers would be trained to only deliver to addresses, noting that her husband was the main designated driver taking care of all deliveries.

 

LOOH asked about circumstances under which the business would refuse to provide alcohol for public nuisance purposes.

 

The applicant stated that loud parties making a disturbance would be refused sales of alcohol, cases where customers were already clearly inebriated and noted that they had already made refusals in these cases from their other unit’s operations.

 

LOOH then asked about proxy sales.

 

The applicant stated that this was a fake kind of sale, whereby a child may have used an adult’s bank card to make the order. The delivery must take place with a responsible adult otherwise the order would be returned to the unit.

 

LOOH then enquired about refusal of deliveries to parties and “using discretion,” asking how this worked in practice.

 

The applicant stated that this would be situation based and that training would cover this.

 

LOOH enquired whether the software system used for deliveries would allow the premises to block an address.

 

The applicant stated that the platform was run by Uber Eats and this was not an available function but accounts could be closed down and they could report to the app moderator for this purpose.

 

Public Health asked about the risks involved in alcohol delivery in Manchester and how the applicants could mitigate against this.

 

The applicant stated that intoxicated and underage customers would not be served. They would uphold the licensing objectives with regard to public nuisance and protection of children from harm and there would be no delivery to open spaces. Refusal logs would be kept for inspection for 12 months and drivers trained every 6 months.

 

Public Health asked about what areas they would be delivering to.

 

The applicant confirmed that there was a permanent setting in the app of a 5 mile radius from the unit.

 

Public Health asked about staffing at the Manchester unit.

 

The applicant stated that there would be two staff members with 24 hour access to the unit, adding that the main business hours would be 22:00 to 05/06:00.

 

Public Health asked about third party drivers and training.

 

The applicant stated that there was no intention of using third party drivers, training would be given in house by the applicants and would be refreshed every 12 months.

 

Public Health asked how they would protect children from harm.

 

The applicant stated that the use of Challenge 25, acceptable ID would be standard and that delivery to any adult with a child present would also be refused to mitigate any chance of harm.

 

Public Health asked about other age restricted products.

 

The applicant stated that they would sell cigarettes, tobacco and vapes as well as condoms and sanitary products.

 

Public Health asked about the age restriction on these products and minimum and maximum orders.

 

The applicant stated that 18 was the minimum age for any age restricted products, that there was no maximum order and the minimum was £20.

 

The Hearing Panel put questions to the applicant and they responded to say that:

• They have run the Trafford unit for 9 months and the Warrington unit for 6 months
• ID is checked at the point of delivery
• The unit was accessed by a shared gate, available 24 hours with secure entry and CCTV cover
• Any driver would have to return to the unit between orders
• The applicant’s husband, cousin and another driver would cover the unit for deliveries in private vehicles
• There would be signage on the gates as per Condition 7
• Drivers would have to use WCs at all night establishments
• 05:00 was the expected end of shift
• The applicants live a 20/25 minute drive from the unit
• The second driver would be deployed at busy times
• Other units were run by well-trained drivers
• Deliveries are based on the address of the customer

Passport and Drivers Licence were the most regular of the accepted forms of ID

• Date of birth checks would assess if the ID was proper
• The applicant, Mrs Bansal, would manage all training

 

The Chair moved to the next section of the procedure whereby Responsible Authorities would address the Hearing Panel.

 

Public Health made representations, stating that they had concerns on routine checks such as Challenge 25 on all age restricted goods and also the applicants understanding of proxy sales with regards to the protection of children from harm.

 

In responding to questions from the applicant’s agent, Public Health stated that:

• They would like to see the addition of Model Conditions around training for proxy sales as part of the conditions

 

The agent stated that his company would provide this training to Level 1 or equivalent.

 

LOOH made representations, stating that there was a lack of talk around CCTV on the unit as there was a large volume of alcohol stored there. Additionally, regarding PSPOs it was not made clear by the applicant how this should be tackled regarding deliveries within a PSPO. LOOH stated that this would need to be advised at the point of delivery. LOOH added that the condition stating the applicant’s use of discretion was ambiguous and he added that it seemed the applicant was not aware of what a proxy sale was and requested that the Hearing Panel refuse the application.

 

In responding to questions from the applicant’s agent, LOOH stated that:

• The need for CCTV additional to the CCTV already provided at the unit’s site was for extra security and to support the aims of the Licensing Act

 

The applicant’s agent stated that the use of the word discretion was from Manchester’s own Statement of Licensing Policy

• LOOH countered that this wording was from an old version of this policy

 

The Legal Rep for the Hearing Panel confirmed this to be correct, that this wording was from the old version of the policy.

 

The applicant stated that they were not 100% wrong on what a proxy sale was, adding that they were not a legal expert.

 

In responding to a question from the Hearing Panel, LOOH stated that they felt that the gate opened for long enough to be tailgated onto the site.

 

The Chair moved on to the procedural point where all attendees summed up their cases.

 

Public Health stated that they appreciated the applicant proposing working together on Level 1 training.

 

LOOH stated that the unit should have its own CCTV and, if not agreed, the application should be refused.

 

The applicant’s agent stated that there had been a late submission of further operational conditions which had been added to in the hearing today. The operations of the unit would not undermine the Licensing Objectives and there was no lack of CCTV provided by the company running the storage site. There were no other issues or evidence of any public nuisance or nothing provided to say that it would create any. Public Health had no further requests after confirming Level 1 training to be delivered and the agent requested that the Hearing Panel approve with any additional conditions as they saw fit to include.

 

Taking into account all the submissions and discussions the Hearing Panel agreed that training to Level 1 to fully cover proxy sales and other concerns were necessary before the licence be granted and that tailgating should be mitigated for by stating that the barrier gate should be fully closed before the unit is accessed. These additional conditions to be added to the conditions offered by the applicant, minus the comment from the previous version of the Statement of Licensing Policy from paragraph 9.6.

 

Decisions

 

The Panel approve the application for a New Premises Licence with the following conditions:

 

1. All staff involved in the sale or supply of alcohol, including third party couriers, shall receive induction and/or refresher training (at least annually) commensurate with their role and responsibilities in relation to the sale of alcohol and the times and conditions of the premises licence. Training shall include Challenge 25, the premises licence hours and conditions, and the requirement and process for completing both the incident log and refusal log (detailed below). Training will be documented, kept at the premises for at least 12 months from the last entry, and made available to the Police and/or Local Authority upon request.
2. Alcohol may only be provided in sealed containers by way of delivery.
3. Any promotional material, including the name of the business and website, should be consistent with the Responsible Sale of Alcohol.
4. Any website, URL, or telephone number to be used for orders will be provided to the Licensing Authority.
5. No new psychoactive substances (NPS) will be sold or supplied by the operator.
6. No delivery of alcohol shall be made to problematic house parties causing local nuisance or disorder.
7. No sales of alcohol may be made directly to the public at the licensed premises.
8. There shall be a register for the recording of all alcohol sale refusals, including attempted under-age sales, proxy sales, and refusals to those who appear intoxicated.
9. Details to be recorded shall include the date, time, name (if known), physical description of the person, the reason for the refusal, names of staff and/or delivery driver involved.
10. Any identification document coming into the possession of a member of delivery staff shall be recorded in the register, including the name of the person/name on the identification document.
11. Refusal records, written or electronic, shall be available for inspection by any authorised officer of the responsible authorities and shall be securely retained by the licence holder for a for a period of 12 months from the date of the last entry.
12. An incident log shall be maintained on the premises to record all incidents and accidents.
13. Records should include occurrences of: anti-social behaviour experienced by delivery staff, welfare, and/or safeguarding concerns/matters.
14. The records shall include the date, time, and location of the incident; nature of the incident; name and contact details of all people involved, and any crime number and details of police officers attending.
15. Incident and accident records will be kept in a bound register with consecutively numbered pages or electronically on a secure digital system.
16. The records shall be available for inspection by any authorised officer of the responsible authorities and shall be securely retained by the licence holder for a period of 12 months after the last entry.
17. No members of the public shall be permitted access to the licensed premises to purchase alcohol.
18. The premises licence holder shall hold a current Fire Risk Assessment which shall be available for inspection by any authorised officer.
19. No promotional social media communication may be carried on for the purpose of encouraging the sale or supply of alcohol at the premises or in relation to the business operation, which can reasonably be considered to condone, encourage or glamorise antisocial behaviour or to refer to the effects of drunkenness in any favourable manner.
20. Delivery drivers shall conduct the delivery in a manner that will not cause a noise disturbance to the occupiers of any residential properties surrounding the delivery address. This includes the avoidance of slamming doors, playing loud music, shouting, over-revving engines and sounding horns to signal their arrival.
21. The driver shall turn the engine off immediately upon arrival at the delivery address and will park considerately without causing any obstruction to the highway.
22. All deliveries of alcohol shall only be delivered to a premises address with a valid postcode and will only be delivered directly to that property.
23. Deliveries shall only be made to the address indicated on the order, which must be a bona fide business/commercial addresses or private residences and not to any public/open spaces (e.g. car parks, street corners, bus stops, public parks).
24. Deliveries must be handed to the addressee/recipient and not left in a safe place for later collection.
25. Deliveries shall be refused to any person who is, or who appears to be intoxicated through alcohol or drugs, in which case the alcohol shall be returned to the licensed premises.
26. A direct telephone number for the duty manager must be prominently displayed where it can conveniently be read from the exterior of the premises by the public. The telephone must be staffed at all times the premises is open for licensable activities.
27. Customers must be instructed when placing the order that they will not be able to collect the order from the vehicle. All deliveries will only be made directly to the property address.
28. Where purchases can be made online, the website must state:

-       It is an offence to sell or supply alcohol to a person under 18 years of age,

-       Satisfactory photographic ID may be required at the time of delivery,

-       Delivery may only be made in person to the intended recipient, and

-       Failure to provide satisfactory ID will result in the retention of the delivery

 

29. The premises licence holder shall ensure that all employees of any third party engaged in the delivery of alcohol, i.e., couriers, have also been trained by their employers regarding the Challenge 25 policy. This training should also be documented.

Age Verification Policy – Responsibilities re: Age Verification Policy.

(i)             The premises licence holder must ensure that an age verification policy is adopted in respect of the premises in relation to the sale or supply of alcohol.

(ii)            The designated premises supervisor must ensure that the supply of alcohol from the premises is carried on in accordance with the age verification policy.

(iii)          The policy must require individuals who appear to the responsible person to be under 25 years of age to produce on request, before being served alcohol, identification bearing their photograph, date of birth and either:-

(a) a holographic mark or

(b) an ultraviolet feature.

 

30. Acceptable Proof of age ID documents shall only comprise a passport, photo card driving licence, an EU/EEA national ID card or similar document, an HM Forces warrant card, a card bearing the PASS hologram, or any electronic or biometric age verification technology approved by the licensing authority.

31. If acceptable photographic age verification documents cannot be produced on request, the delivery shall be refused, and alcohol returned to the licensed premises.

32. Where an order includes non-alcoholic items, the alcohol part of a delivery must be packed in such a way as to easily enable the delivery driver to retain the alcohol and return it to the Licensed premises if the recipient is unable to provide satisfactory ID and prove they are over 18 years of age.

33. The premises licence holder will ensure that a sticker is applied to all consignments containing alcohol stating “Note to delivery service: this package contains age restricted products. Ensure recipient is over 18” (or similar wording to the same effect).

34. All members of staff shall receive alcohol related training which shall include Challenge 25 and recognizing signs of intoxication. The training shall be recorded and retained by the licence holder and must be made available to authorised officers on request. Refresher training must be carried out every six months.

35. Where third-party couriers are used to provide the delivery of orders containing alcohol, the premises licence holder/designated premises supervisor shall have a contractual arrangement with each third party to be satisfied that the promotion of the licensing objectives and terms of the premises licence are complied with at all times, with particular attention to the point of delivery.

36. The premises licence holder shall keep records of or have access to all alcohol orders. For each order containing alcohol, records shall include:

a)    the name and address of person making the order

b)    age verification at the point of order (if necessary)

c)    any refusals made at the point of order

d)    the date and time of the despatch

e)    details of the delivery provider/driver

f)      the date and time of delivery

g)    name and date of birth of recipient (where necessary)

h)    the full postal delivery address

i)      detail of identification/proof of age documents received (if required)

j)      details of any refusals at the point of delivery including reasons.

Records shall be retained by the Licence Holder for a period of 12 months and be produced on request for inspection by a police officer or an authorised person of the licensing authority.

The premises licence holder shall provide the following information in writing to the licensing authority before any sale of alcohol is carried out (and notify change to this information to the licensing authority within 7 days of such change occurring):

-       The trading name of any company that will operate under the licence

-       All telephone numbers that will be used to accept orders

-       The URL/website address that will be used to accept orders.

Any promotional material and/or any website home page used as part of the business operating under this licence will clearly state the premises licence number. For the avoidance of doubt, this includes flyers, leaflets and business cards promoting the business

37. All delivery driver will receive responsible alcohol retaining training to level 1, prior to commencing of any employment in that role. Training should be provided by a duly authorised gov. approved training provider.

38. Mr and Mrs Bansal must both complete responsible alcohol retaining training to level 1 prior to this licensing taking effect. Training should be provided by a duly authorised government approved training provider. Once the training is completed certification must be provided to the licensing authority.

39. When a driver opens the main gate at the store unit (premises) they must ensure (to prevent tail gating) that the gates are closed behind them before opening the storage unit.