Agenda item

The applicant has applied for a new Premises Licence in respect of Baba Food Centre, 63-65 High Street, Gillingham, Kent ME7 1BJ.  

 

All responsible authorities have been consulted in line with the Licensing Act.

 

Representations have been received from the Police and Public Health.

 

Discussion:

 

The Chairman advised that the Applicant had been unable to attend the hearing. The Panel agreed to defer the hearing to a later date and the meeting was adjourned.

 

When the meeting was reconvened on 2 March 2022, the Chairman explained the process that the hearing would follow the “Guidelines for Licensing Hearing Panels”, as outlined on page 4 of the agenda.

 

The Licensing Officer stated that, in accordance with the Licensing Act 2003, the Council had received an application in respect of Baba Food Centre, 63 – 65 High Street, Gillingham, Kent, ME7 1BJ to supply alcohol (off the premises) from 05:30 to 22:00 Monday to Sunday.

 

The Licensing Officer confirmed that the application had been correctly advertised in the local press and notices had been displayed at the premises for the required timescales. The application had been referred to the Licensing Hearing Panel for determination because the Council had received relevant representations relating to all four licensing objectives from the Police and Public Health whereby no agreement had been reached.  She further advised that the premises fell within a Cumulative Impact Policy (CIP) area. When the CIP was applied, and there were relevant representations, there was a rebuttable presumption of refusal by the Authority in all but exceptional circumstances, unless the applicant could demonstrate the premises would not adversely affect the licensing objectives.

 

Then the Chairman invited the Applicant to speak in support of their application.

 

Mr Dave Tutt, the Applicant’s agent, explained that the Applicant, Mr Alaittin Temur was already running a similar establishment at 73, Gillingham High Street called Baba Food and Wine. He said the Applicant was an experienced manager who had built up his management capacity having operated convenience stores for many years. Initially, the Applicant planned to use the premises as a storage space for alcohol. Sale of alcohol was not part of the current application until early December 2021 when the Applicant became aware of customers’ demand for Turkish and Swedish alcoholic beverages. Mr Tutt pointed out that although the premises fell within a CIP area, granting the licence would not impact the area adversely because Baba Food Centre was not a pub but a convenience shop retailing mainly groceries.

 

Mr Tutt informed the Panel of the proposed modifications to their application:

 

a.         the hours of supplying alcohol would be changed from 05:30 – 22:00 to 09:00 – 21:00;

b.         all staff engaged in the sale of alcohol would be involved in the induction and refreshers’ trainings at 6-month intervals, with training records kept available for the inspection of the Police and authorised officers.  All cashiers would be trained to register for the refusal book with full details including the brands of alcohol and reasons of refusal;

c.         specific policies would be designed in relation to business operation;

d.         except for a small quantity of pre-mixed spirit and soft drinks, there would be no self-service of pure spirit which would be kept behind the counter;

e.         single bottle or can of beer or cider would not be sold, nor the miniature spirit of 20 centi-litre or below;

f.          only low strength beers (ABV under 5.5%) would be sold;

g.         alcohol sales would be ancillary to a minimum of £10 basket sale of groceries, with a view to removing low-cost transactions which were usually engaged by street drinkers; and

h.         all alcoholic containers sold at the premises would be clearly marked with the name and postcode of the premises. 

 

At the invitation of the Chairman, the objectors and then Panel members asked the Applicant and his agents questions.  The issues discussed included:

 

A second licence- as the Applicant already got an alcohol licence for the premises just a few doors away, a question was raised on the reason for a second licence. The Applicant advised that when people called and bought groceries and other products at the new shop, it was impracticable to ask the customers to buy alcohol and wine from shop 73, Gillingham High Street.

 

Specific policies- upon further enquiry, Mr Tutt advised that subject to the premises licence being granted and the conditions stated therein, the Applicant was prepared to design specific policies in relation to business operation to meet these conditions.

 

CIP- as regard the Applicant’s understanding of CIP and the issues covered by a CIP area, Mr Tutt pointed out that street drinking in the CIP area was a persistent problem, as reflected in the representations of the Police and Public Health. On the specific places in the vicinity of the premises having a street drinking problem, the Applicant noted that street drinkers were sitting and drinking outside the few benches nearby but he had no way to stop them from doing so. Mr Tutt added that the modifications were proposed to address the concerns of the Police and Public Health that the licence, if granted, would not aggravate the problem of street drinking with which the Applicant would not be able to stop.

 

Minimum £10 basket- on the content of the minimum £10 basket, Mr Tutt said that the proposal was to make alcohol sales ancillary to the purchase of groceries and other products and to remove low-cost transactions usually engaged by street drinkers.  He confirmed that the prices of alcohol to non-alcohol products could be £6 and £4 respectively and the latter could be packs of cigarettes.

 

Labelling- on elaboration, Mr Tutt advised that labels bearing the name and postcode of the shop would be stuck on all alcoholic containers sold at the premises with a view to identifying whether the discarded bottles or cans in the areas closest to the premises came from Baba Food Centre or not. On actions to be taken for litter bottles/cans bearing the shop’s labels, Mr Tutt said he was confident that with all the proposed modifications in place, the said litter should not come from the shop. If there were indeed evidence of discarded bottles/cans bearing the shop’s labels, the Applicant should discuss with the local authority on steps to be taken to address the problem of littering. For instance, if a product was repeatedly found among the litter, consideration might be given not to retail that product anymore, or not to sell the products to the individuals concerned.

 

Target customers- the Applicant advised that in addition to Turkish and Swedish alcohol, they also planned to sell alcohol popular among Romanians and so on, which were quality beer and wine.

 

Change of hours- as regards why the hour of supplying alcohol in the morning was changed from 05:30 to 09:00 and not later, Mr Tutt pointed out that 9am was the fairly standard retail time for similar establishments.

 

Staff training- in response to a question, Mr Tutt advised that the Applicant would set up the training regime and conduct the training for about three staff himself.

 

Mr Tutt said he hoped that the above modifications would help address the concerns raised by the Police and Public Health and enable their application to demonstrate the exceptional circumstances. Upon a Panel member’s query, Mr Tutt acknowledged that some of the proposed modifications such as staff training should be in place anyway for the existing shop.

 

Next, the Chairman invited the objectors to present their representations against the application.

 

PC Smuts highlighted that the premises was situated at 63 – 65 High Street, Gillingham which was near the busy junction with Canterbury Street. It formed part of a row of retail premises with residential properties above the shops. This configuration was mirrored on the opposite side of the high street. This was a new Premises Licence application in relation to what was currently an unlicensed and newly refurbished shop. There were a significant number of retail outlets within the town centre, many of which already sold alcohol on an off-sale basis.

 

He emphasised that the premises was located within the Gillingham High Street CIP area, and also covered by a Public Space Protection Order, previously known as an Alcohol Control Zones. The area suffered from a high volume of alcohol-related crime, disorder, and public nuisance. Complaints from residents and business managers were received recently against occasional gatherings outside the premises causing loud, rowdy and intimidating anti-social behaviour. Kent Police had raised that the existing licence of the premises at 73 Gillingham High Street be reviewed. 

 

He further advised that Kent Police were concerned that the granting of another off-licence in this immediate area, which was already populated by many licenced premises, would make alcohol even more widely available and was likely to attract further street drinkers and antisocial behaviour resulting in issues worsening and becoming a greater problem.

 

PC Smuts pointed out that this High Street was pedestrianised and frequented by families, including children. The licensing objective of protection of children from harm did not imply protecting them from the inherent harms of alcohol alone but also included protection from moral, psychological and physical harm. 

 

He said that according to the Applicant, it was their intention to sell Turkish and Swedish alcohol which were not available locally, and the licence, if granted, would allow them to stock alcohol wall to wall in the future. The Applicant had left unanswered the question of why the Baba Food and Wine at 73 Gillingham High Street could not sell the extra niche of alcoholic products. It appeared the Applicant had failed to acknowledge the existence of the CIP information of which was available online, and to address how it would assist in dealing with issues such as street drinking or the other issues identified within the CIP.

 

PC Smuts said that it was the understanding of the Kent Police that due to the existence of the CIP, there was a rebuttable presumption of refusal of the application by the Authority in all but exceptional circumstances, unless the applicant could demonstrate that the premises would not adversely affect the licensing objectives. Kent Police did not believe the modifications proposed by the Applicant at the meeting today demonstrated exceptional circumstances. Kent Police were of the opinion that there were no meaningful conditions that could be added to this licence that would ensure that the four licensing objectives were being fully promoted and would ensure that the issues already experienced within this CIP area would not increase. Kent Police respectfully requested that the application be refused.

 

Mrs Murray pointed out that Gillingham High Street was a hot spot of alcohol drinking, causing nuisances such as littering, public urination and defecation. The evidence to support the CIP was relevant to this application. While such evidence was collected between June and November 2021, the alcohol-related anti-social behaviour could still be witnessed in the previous week and was henceforth ongoing. She had seen people drinking bottles/cans of beer and cider in Gillingham High Street and surrounding areas. As evidenced by the photos and maps annexed to the representation, there was litter throughout the High Street with problem areas highlighted on the maps. The photos showed much of the litter consisted of single cans and bottles but taken in totality there was a large quantity of alcohol-related litter in the area. Over the period of time the evidence was collected, the litter was ongoing and consistent.

 

Mrs Murray drew members’ attention to the area around St Mark’s Church, which was just a few meters away from the Baba Food and Wine currently run by the Applicant, where people were seen sitting on the benches or wall drinking alcohol.  There was a strong smell of urine and evidence of public defection in the flower bed bordering St Mark’s Church in Canterbury Street.

 

Then, the Chairman invited the Applicant to ask the objectors questions. Mr Tutt asked about the test for the exceptional circumstances set out under section 6.15 of the Medway Council’s Statement of Licensing Policy:

 

6.15     When the CIP is applied, and there are relevant representations, there is a rebuttable presumption of refusal by the Authority in all but exceptional circumstances, unless the applicant can demonstrate the premises will not adversely affect the licensing objectives.

 

The Legal Adviser referred to the following sections in respect of the aforesaid

exceptional circumstances:

 

6.16     It is not possible to give a full list of examples of when the Council may treat an application as an exception. However, in considering whether a particular case is exceptional, the Authority will consider the reasons underlying the CIP for that area. Examples of factors the Authority will not consider as exceptional include:

 

1. The premises will be well managed and run, as all licensed premises should meet this standard.

2. The premises will be constructed to a high standard.

3. The applicant operates similar premises elsewhere, such as in another licensing authority area, without complaint.

 

6.17     The Authority’s policies, in relation to the cumulative impact, are concerned with the cumulative effects of licences on the area as a whole. Therefore, a case is most unlikely to be considered exceptional unless it is directed at the underlying reason for having the policy. Exceptions to the CIP must be for genuinely exceptional reasons.

 

Mr Tutt reiterated the proposed modifications and asked whether the Police still considered the Applicant could not demonstrate the premises would not adversely affect the licensing objectives. PC Smuts considered the modifications did not constitute exceptional circumstances. PC Hunt referred to Kent Police’s recent request to review the licence of the Baba Food and Wine at 73 Gillingham Street as it might have violated the condition of selling only low-strength alcohol (under 5.5%) which had affected the Police’s confidence in the Applicant. 

 

The Chairman asked if anyone wished to add anything further. 

 

On the question of sales of alcohol by local shops vis-à-vis supermarkets, Mrs Murray said a large number of premises got alcohol licences before the area was designated as CIP, and their customers were identified to be associated with alcohol-related issues in the area. She pointed out that the CIP aimed at governing new licence applications. While agreeing to the view that there might be less sales of alcohol following the closing down of some establishments, she said that alcohol-related issues such as domestic violence persisted in the area.

 

As regards Police’s seizure of alcohol off the local street drinkers, PC Smuts advised that the drinkers involved were many and largely the same faces.  They were mainly hanging around within 20-yard radius of the two premises in question.

 

Mr Tutt acknowledged the serious problem of street drinking at Gillingham High Street and remarked that the proposed licensing condition of labelling all alcoholic containers sold by the premises was to help prove that they would not add to this existing problem. 

 

On the effectiveness of labelling alcoholic bottles/cans, Mrs Murray shared her experience some 20 years ago, and pointed out that without enforcement actions in place, the measure had not stopped the issue of littering. She did not consider the Applicant’s proposed modifications would help address the concerns raised in the representations. For example, under the condition of the minimum £10 basket, 95% of the cost might be used for a bottle of vodka with the remaining 5% going to a pack of crisps. Moreover, as the Applicant had indicated earlier that in addition to Turkish and Swedish alcohol, the premises would also be selling products from other areas as sold by other shops as well.  As such, it was impossible for the premises to target alcohol sales to a small number of customers.

 

PC Smuts echoed her views and added that Kent Police were of the opinion that the selling of alcohol to street drinkers would be considered a failure to promote the licensing objectives of preventing crime and disorder and preventing public nuisance.

 

The Chairman requested everyone to leave the room for the Panel to discuss and reach a decision.

 

Decision:          

 

The Panel, having read the objections submitted against the application and listened to some objectors’ views, questioned the Applicant in relation to these, and after careful consideration, did not consider that it could grant a licence for Baba Food Centre at 63 – 65 High Street, Gillingham, Kent ME7 1BJ because the premises fell within a Cumulative Impact Policy area and the Applicant could not demonstrate the premises would not adversely affect the licensing objectives. The Panel appreciated the modifications proposed by the Applicant at the meeting but did not consider that these conditions demonstrated the exceptional circumstances referred to by section 6.15 of the Council’s Statement of Licensing Policy.