Agenda item
Foxlow, 8-10 Lower James Street, London, W1F 9EL
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App No |
Ward / Cumulative Impact Area |
Site Name and Address |
Application |
Licensing Reference Number |
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3. |
West End Ward / West End Cumulative Impact Area |
Foxlow, 8-10 Lower James Street, London, W1F 9EL |
Premises Licence Variation |
18/06624/LIPV |
Minutes:
LICENSING SUB-COMMITTEE No. 4
Thursday 2nd August 2018
Membership: Councillor Karen Scarborough (Chairman), Councillor Louise Hyams and Councillor Rita Begum
Legal Adviser: Barry Panto
Committee Officer: Tristan Fieldsend
Presenting Officer: Heidi Lawrance
Relevant Representations: The Licensing Authority, Environmental Health and one local resident
Present: Mr Thomas O’Maoileoin (Solicitor, representing the Applicant), Ms Blanca Mateo (Applicant), Miss Daisy Gadd (Licensing Authority) and Mr Maxwell Koduah (Environmental Health)
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Foxlow, 8-10 Lower James Street, London, W1F 9EL (“The Premises”) 18/06624/LIPV
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1. |
Sale by Retail of Alcohol (Off Sales)
Monday to Saturday 10.00 to 23.00 Sunday 12.00 to 23.00
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Amendments to application advised at hearing:
The proposed hours on a Sunday were amended to: 12.00 to 22.30
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2. |
Conditions Being Varied, Added or Removed
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Amendments to application advised at hearing:
The applicant advised the Sub-Committee that the following amendments had been made to the application:
· A proposed additional condition would be amended to read: “In the area hatched black on the plan a maximum of 9 customers may consume alcohol until 8pm.”
· Regarding off sales of alcohol it be conditioned that these be ancillary to deliveries of substantial takeaway meals only.
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Decision (including reasons if different from those set out in report):
The Sub-Committee considered an application by Foxlow Restaurants Ltd for a variation of a premises licence in respect of Foxlow, 8-10 Lower James Street, London, W1F 9EL.
The Licensing Officer provided an outline of the application to the Sub-Committee and confirmed that the applicant had submitted late documents detailing the draft Age Verification Policy and Operational Management Statement. These had been circulated to all parties.
Mr O’Maoileoin, representing the applicant, advised the Sub-Committee of two slight amendments proposed to the application. Firstly, the variation of the condition to permit the sale of alcohol for consumption off the premises in order that it could be supplied with a meal ordered for delivery had been varied so that it could only now be supplied ancillary to customers ordering substantial takeaway meals. Secondly, the variation seeking to permit 12 people to be able to consume alcohol without a meal in the bar area had been amended to reduce it to 9 people. The original application proposed to restrict the use of the bar area for the consumption of alcohol only until 21:00 but this had also been reduced to 20:00 hours.
To address concerns raised over deliveries of alcohol to underage customers Mr O’Maoileoin explained that a draft age verification policy had been developed. The Sub-Committee was advised that the Police were content with the policy. It required the operation of a Challenge 25 age verification scheme, staff would notify delivery drivers if an order contained alcohol and drivers must understand and comply with the verification scheme at all times. The policy would also require drivers to turn their engines off whilst waiting, prevent them from gathering so as to not cause a nuisance, drivers would have to wait inside the restaurant and would be permitted to use the restaurant’s toilet facilities. Constructive meetings had been held with the local residents association and O’Maoileoin advised that they were content with the application. They had raised initial concerns but these had been addressed and they now supported the application. The residents association had objected to the original application in 2016 but following successful engagement with local residents, they supported the proposed variation before the Sub-Committee.
O’Maoileoin suggested that the conditions proposed and the amendments made to the application addressed the concerns raised by the Licensing Authority and Environmental Health (EH) and would ensure that the premises did not add to cumulative impact. Food deliveries were already taking place from the premises, without alcohol, and a procedure was currently in place to ensure that they did not cause any public nuisance. The initial application was proposing to permit off sales of alcohol until 23:00 but to bring the hours in line with the Council’s policy this had been amended to 22:30 on Sundays.
As the premises was located in a Cumulative Impact Area (CIA) the Sub-Committee was interested to learn why the application could be considered an exception to policy? Mr O’Maoileoin explained that permitting customers to consume alcohol in the bar area without a meal would cease at 20:00 hours. The customers in the bar area would be restricted to 9 people and would have to be seated at fixed bar stools. The premises was a restaurant and the small bar area was set back from the windows next to the public highway. No active promotion of the bar area would take place and assurances were provided that any intoxicated customers would not be served alcohol. The premises was part of a restaurant chain, which did not wish their operations to be regarded as bars that served alcohol. The goodwill built up with local residents was to be commended, this relationship had taken 2 years to develop and therefore it was in the applicant’s interest to ensure it would not be damaged in anyway. The premises would not become a drink-led venue and this was not the intention of the application. The management of the premises were very experienced and this, plus the restrictions proposed, should allay any concerns over the application.
Mr Koduah, representing Environmental Health, brought to the Sub-Committee’s attention two conditions on the existing licence, which prevented any licensable activities from taking place at the premises until EH, had determined its capacity and ensured it had been constructed in accordance with regulations. Mr Koduah confirmed that he had visited the premises recently and was content for these conditions to be now removed from the licence. With regards to the original application made in 2016 the Sub-Committee had granted the licence as the applicant had amended its proposals by removing a dedicated bar area to ensure that the premises could only operate as a restaurant. The Sub-Committee had considered this amendment at the time to be necessary and appropriate and EH was of the opinion that this was still relevant at the present time. For these reasons EH therefore maintained its representation.
Mr O’Maoileoin stressed that the original application made in 2016 was very different to the one currently being considered by the Sub-Committee as originally no restaurant condition had been offered therefore proposing to permit customers to consume alcohol without taking a table meal. The original intention of permitting off sales as well had also been to allow customers to consume alcohol outside in front of the premises. Residents expressed concerns over the proposals at that time and that was why the application had been amended substantially. The off sales requested now were very particular and applied only to the delivery service. In relation to the two conditions highlighted by EH Mr O’Maoileoin confirmed that the applicant had provided licensable activities at the premises without them having been removed from the licence. An application should have been submitted requesting that these be removed from the licence, however this had not happened due to an oversight. When the applicant took over the premises it was a building site and when the works had been completed and signed off by Building Regulations the applicant mistakenly thought this meant that the conditions had been addressed. The Sub-Committee was advised that this was an honest mistake and EH’s subsequent inspection had raised no concerns.
Miss Gadd, representing the Licensing Authority, confirmed that their representation was maintained on two grounds. Firstly, the element of off sales was a concern, as the delivery element was likely to cause public nuisance in the local area and therefore add to cumulative impact in the CIA. Secondly, the introduction of a bar area would allow customers to consume alcohol in this area without it being ancillary to food. However, it was acknowledged that the applicant had amended this element of the application by reducing the number of customers allowed in the area to 9 and restricting it to a terminal hour of 20:00.
The Council’s Legal Adviser requested clarification that if the Sub-Committee was minded to grant the application was the applicant content for a condition to be placed on the licence prohibiting any promotion or advertisement of the bar area? Mr O’Maoileoin confirmed that the applicant was happy for this restriction to be placed on the licence if granted.
Following careful consideration of the application and the evidence provided by all parties the Sub-Committee decided to partly grant the application. It was noted that the premises was located in a CIA and was seeking to establish a bar area where customers could consume alcohol without it being ancillary to a meal until 20:00. The Sub-Committee recognised that this was contrary to the Council’s Statement of Licensing Policy and was of the opinion that allowing alcohol to be consumed without food would create a bar area which would alter the character of the premises. Permitting even a reduced number of nine customers to consume alcohol without taking a meal until 20:00 hours was considered inappropriate in the circumstances and likely to add to cumulative impact in the local area which would undermine the licensing objectives. The Sub-Committee was of the opinion that it had not been proven that the application was a genuine exception to policy and therefore this aspect of the application was refused accordingly.
With regards to permitting the sale of alcohol for consumption off the premises to allow alcohol to be supplied with meals ordered for delivery the Sub-Committee agreed to grant this aspect of the application after considering all the evidence. The premises already operated a food-only delivery service and had procedures in place to prevent any nuisance to local residents. To provide further reassurance that there would be no nuisance to residents it was agreed to add conditions to the licence requiring delivery drivers to wait inside the premises and also permitting them to use the premises toilet facilities. The Sub-Committee noted that no representations objecting to the application had been received from residents. The applicant had circulated a draft age verification policy and the stringent guidelines set out in it regarding deliveries provided the Sub-Committee with reassurance that it would uphold the protection of children from harm licensing objective. This included the applicant and the delivery company operating a Challenge 25 age verification scheme, drivers being informed of any deliveries including alcohol and the training of staff. The applicant’s amendment to also only permit off sales of alcohol when substantial takeaway meals for delivery had been ordered was considered appropriate and proportionate in the circumstances. Having heard all the evidence the Sub-Committee was satisfied that this aspect of the application was suitable for the local area and promoted the licensing objectives.
The Sub-Committee also noted that conditions 16 and 23 on the original licence could be removed following EH’s recent inspection of the premises.
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Conditions attached to the Licence |
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Mandatory Conditions
1. No supply of alcohol may be made at a time when there is no designated premises supervisor in respect of this licence.
2. No supply of alcohol may be made at a time when the designated premises supervisor does not hold a personal licence or the personal licence is suspended.
3. Every supply of alcohol under this licence must be made or authorised by a person who holds a personal licence.
4. (1) The responsible person must ensure that staff on relevant premises do not carry out, arrange or participate in any irresponsible promotions in relation to the premises.
(2) In this paragraph, an irresponsible promotion means any one or more of the following activities, or substantially similar activities, carried on for the purpose of encouraging the sale or supply of alcohol for consumption on the premises—
(a) games or other activities which require or encourage, or are designed to require or encourage, individuals to;
(i) drink a quantity of alcohol within a time limit (other than to drink alcohol sold or supplied on the premises before the cessation of the period in which the responsible person is authorised to sell or supply alcohol), or (ii) drink as much alcohol as possible (whether within a time limit or otherwise);
(b) provision of unlimited or unspecified quantities of alcohol free or for a fixed or discounted fee to the public or to a group defined by a particular characteristic in a manner which carries a significant risk of undermining a licensing objective; (c) provision of free or discounted alcohol or any other thing as a prize to encourage or reward the purchase and consumption of alcohol over a period of 24 hours or less in a manner which carries a significant risk of undermining a licensing objective; (d) selling or supplying alcohol in association with promotional posters or flyers on, or in the vicinity of, the premises which can reasonably be considered to condone, encourage or glamorise anti-social behaviour or to refer to the effects of drunkenness in any favourable manner; (e) dispensing alcohol directly by one person into the mouth of another (other than where that other person is unable to drink without assistance by reason of a disability).
5. The responsible person must ensure that free potable water is provided on request to customers where it is reasonably available.
6. (1) The premises licence holder or club premises certificate holder must ensure that an age verification policy is adopted in respect of the premises in relation to the sale or supply of alcohol.
(2) The designated premises supervisor in relation to the premises licence must ensure that the supply of alcohol at the premises is carried on in accordance with the age verification policy.
(3) The policy must require individuals who appear to the responsible person to be under 18 years of age (or such older age as may be specified in the policy) 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.
7. The responsible person must ensure that—
(a) where any of the following alcoholic drinks is sold or supplied for consumption on the premises (other than alcoholic drinks sold or supplied having been made up in advance ready for sale or supply in a securely closed container) it is available to customers in the following measures—
(i) beer or cider: ½ pint; (ii) gin, rum, vodka or whisky: 25 ml or 35 ml; and (iii) still wine in a glass: 125 ml;
(b) these measures are displayed in a menu, price list or other printed material which is available to customers on the premises; and (c) where a customer does not in relation to a sale of alcohol specify the quantity of alcohol to be sold, the customer is made aware that these measures are available.
A responsible person in relation to a licensed premises means the holder of the premise licence in respect of the premises, the designated premises supervisor (if any) or any individual aged 18 or over who is authorised by either the licence holder or designated premises supervisor. For premises with a club premises certificate, any member or officer of the club present on the premises in a capacity that which enables him to prevent the supply of alcohol.
8(i) A relevant person shall ensure that no alcohol is sold or supplied for consumption on or off the premises for a price which is less than the permitted price.
8(ii) For the purposes of the condition set out in paragraph 8(i) above –
(a) "duty" is to be construed in accordance with the Alcoholic Liquor Duties Act 1979;
(b) "permitted price" is the price found by applying the formula - P = D+(DxV)
Where - (i) P is the permitted price, (ii) D is the amount of duty chargeable in relation to the alcohol as if the duty were charged on the date of the sale or supply of the alcohol, and (iii) V is the rate of value added tax chargeable in relation to the alcohol as if the value added tax were charged on the date of the sale or supply of the alcohol;
(c) "relevant person" means, in relation to premises in respect of which there is in force a premises licence –
(i) the holder of the premises licence, (ii) the designated premises supervisor (if any) in respect of such a licence, or (iii) the personal licence holder who makes or authorises a supply of alcohol under such a licence;
(d) "relevant person" means, in relation to premises in respect of which there is in force a club premises certificate, any member or officer of the club present on the premises in a capacity which enables the member or officer to prevent the supply in question; and
(e) "value added tax" means value added tax charged in accordance with the Value Added Tax Act 1994.
8(iii). Where the permitted price given by Paragraph 8(ii)(b) above would (apart from this paragraph) not be a whole number of pennies, the price given by that subparagraph shall be taken to be the price actually given by that sub-paragraph rounded up to the nearest penny.
8(iv). (1) Sub-paragraph 8(iv)(2) below applies where the permitted price given by Paragraph 8(ii)(b) above on a day ("the first day") would be different from the permitted price on the next day ("the second day") as a result of a change to the rate of duty or value added tax.
(2) The permitted price which would apply on the first day applies to sales or supplies of alcohol which take place before the expiry of the period of 14 days beginning on the second day.
Conditions Consistent with the Operating Schedule
9. The premises shall install and maintain a comprehensive CCTV system as per the minimum requirements of the Westminster Police Licensing Team. All entry and exit points will be covered enabling frontal identification of every person entering in any light condition. The CCTV system shall continually record whilst the premises is open for licensable activities and during all times when customers remain on the premises. All recordings shall be stored for a minimum period of 31 days with date and time stamping. Viewing of recordings shall be made available immediately upon the request of Police or authorised officer throughout the entire 31-day period.
10. A staff member from the premises who is conversant with the operation of the CCTV system shall be on the premises at all times when the premises is open. This staff member must be able to provide a Police or authorised council officer copies of recent CCTV images or data with the absolute minimum of delay when requested.
11. No noise generated on the premises, or by its associated plant or equipment, shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance.
12. Notices shall be prominently displayed at all exits requesting patrons to respect the needs of local residents and businesses and leave the area quietly.
13. Notices shall be prominently displayed at any area used for smoking requesting patrons to respect the needs of local residents and use the area quietly.
14. All waste shall be properly presented and placed out for collection no earlier than 30 minutes before the scheduled collection times.
15. No waste or recyclable materials, including bottles, shall be moved, removed from or placed in outside areas between 23.00 hours and 08.00 hours on the following day.
16. No collections of waste or recycling materials (including bottles) from the premises shall take place between 23.00 and 08.00 on the following day.
17. A Challenge 21 or Challenge 25 proof of age scheme shall be operated at the premises where the only acceptable forms of identification are recognised photographic identification cards, such as a driving licence, passport or proof of age card with the PASS Hologram.
18. An incident log shall be kept at the premises, and made available on request to an authorised officer of the City Council or the Police. It must be completed within 24 hours of the incident and will record the following: a) all crimes reported to the venue b) all ejections of patrons c) any complaints received concerning crime and disorder d) any incidents of disorder e) all seizures of drugs or offensive weapons f) any faults in the CCTV system g) any refusal of the sale of alcohol h) any visit by a relevant authority or emergency service.
19. No deliveries to the premises shall take place between 20.00 and 08.00 on the following day.
20. The premises shall only operate as a restaurant: a) in which customers are shown to their table, b) where the supply of alcohol is by waiter or waitress service only, c) which provide food in the form of substantial table meals that are prepared on the premises and are served and consumed at the table using non disposable crockery, d) which do not provide any take away service of food or drink for immediate consumption, e) which do not provide any take away service of food or drink after 23.00, and f) where alcohol shall not be sold or supplied, otherwise than for consumption by persons who are seated in the premises and bona fide taking substantial table meals there, and provided always that the consumption of alcohol by such persons is ancillary to taking such meals.
Notwithstanding this condition customers are permitted to take from the premises part consumed and resealed bottles of wine supplied ancillary to their meal.
21. The premises may remain open for the sale of alcohol and the provision of late night refreshment from the terminal hour for those activities on New Year's Eve through to the commencement time for those activities on New Year's Day.
22. Patrons permitted to temporarily leave and then re-enter the premises, e.g. to smoke, shall not be permitted to take drinks or glass containers with them.
23. Patrons permitted to temporarily leave and then re-enter the premises, e.g. to smoke, shall be limited to 5 persons at any one time.
24. A direct telephone number for the manager at the premises shall be publicly available at all times the premises is open. This telephone number is to be made available to residents and businesses in the vicinity.
25. On Fridays and Saturdays there shall be no new entries after midnight.
26. On Fridays and Saturdays the area immediately outside the restaurant shall be monitored by staff so as to ensure that customers leave quietly.
27. Sales of alcohol for consumption off the premises shall: (a) only be supplied ancillary to a substantial takeaway meal ordered for delivery; (b) only be supplied by courier service; and (c) only be in sealed containers.
28. Sales of alcohol for consumption off the premises shall cease at 11pm on Monday to Saturday and 10.30 pm on Sunday.
29. Delivery drivers will be given clear, written instructions to use their vehicles in a responsible manner so as not to cause a nuisance to any residents or generally outside the licenced premises; not to leave engines running when the vehicles are parked; and not to obstruct the highway. The licence holder will positively encourage delivery drivers to use quieter vehicles that are less likely to cause a nuisance such as bicycles.
30. When accepting delivery orders including alcohol, staff must remind the customer the premises operate Challenge 25. Customers will be asked to provide ID on delivery if they look younger than 25. Restaurant staff must notify delivery drivers if an order contains alcohol. Similar procedures shall be implemented in respect of online orders.
31. Drivers will be requested to wait inside the restaurant whilst waiting for delivery orders to be prepared.
32. Drivers shall be permitted to use the premises WC facilities at the licensed premises.
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Supporting documents:
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