Agenda item

Tortilla, Basement and Ground Floor, 6 Market Place, London, W1W 8AE (“The Premises”) 19/16700/LIPV

1.

Premises Licence Variation 

The changes sought by way of this application are as follows:

•           To replace existing condition 9 (which states that the sale of alcohol “on” the premises shall only be to persons taking a table meal there and for consumption by such a person as ancillary to their meal) with the following new condition:

“The consumption of alcohol on the premises shall be by seated persons only.”

•           Add provision for the sale of alcohol for consumption off the premises (Off sales), subject to the following new conditions:

“All sales of alcohol for consumption off the premises shall be in sealed containers and ancillary to a takeaway meal.”

“There shall be no sales of alcohol for consumption off the premises after 23:00 Monday to Saturday and 22:30 Sunday.”

Amendments to application advised at hearing:

None

2.

Decision:

Ms Steward summarised the application advising the Sub-Committee that they had before them a premises Licence variation application for Tortilla located at Ground Floor, 6 Market Place, in the West End ward.  She added that the application is to add off sales and to vary an existing condition relating to off-sales.  She informed the Sub- Committee that representations had been received from the Environmental Health Service and the Fitzrovia Neighbourhood Association. it was noted that the Police had originally submitted a representation. However, following the agreement of additional conditions, the Police representation was withdrawn on 28 January 2020.  Ms Steward informed the Sub-Committee that a late submission had been received from the Applicant and the Environmental Health service setting out four conditions that had been agreed between them. There was also a late submission from Linus Rees, a Director and Trustee of the Fitzrovia Neighbourhood Association, who was unable to attend the hearing. He had indicated that Richard Brown would be speaking on his behalf.  She added that the premises did not fall within any of the Council’s Cumulative Impact Areas (CIA).

The Sub-Committee heard the Applicant’s Case

Mr Jack Spiegler addressed the Sub-Committee advising that this was a Husband and Wife team and Tortilla operated 40 restaurants in the UK and 25 in London.  He advised that all restaurants operate without any complaints down to the applicant's managerial skills.  He advised the Sub-Committee that the application could be split in two sections. The firs was to replace condition 9 with a condition that allows the sale of alcohol to customers on the premises without the need for them to consume any food. The second was to seek off-sales of alcohol so as to allow their existing take away customers to be able to purchase alcohol with their takeaway meal.  He proposed that condition 17 replaces condition 1.

Mr Spiegler advised that proposed conditions 21-24 at page 185 of the report had been agreed with Environmental Health. Environmental Health had now agreed that proposed condition 25 could be deleted. This effectively meant that alcohol could only be consumed by seated customers (whether inside or outside the premises) but there was no requirement for that alcohol to be served by waiter or waitress service He advised that he was not aware of any specific residents who were concerned with the ongoing operations of the premises.  Mr Spiegler advised the Sub-Committee that in terms of policy, the Fitzrovia Resident's Association acknowledged that the premises is placed in the West End but was not within the Cumulative Impact Area (CIA), and he asked the Sub-Committee to consider the application accordingly.

Mr Spiegler advised that the the hours for the sale of alcohol remained within core hours and added that if the application was granted there would also be an opportunity to update the operating schedule.  He confirmed that the external seating area was within the premises’ licensed area as part of the existing licence, even though it was actually part of the highway. It was noted that the applicants did have a tables and chairs licence permitting the use of 4 tables and 16 chairs in the external area until 26^th June 2020. Mr Spiegler confirmed that the newly proposed condition 24 required the consumption of alcohol within that external area to be by seated patrons only but they did not constitute off-sales.

The Sub-Committee heard from Environmental Health:

Mr Maxwell Koduah advised the Sub-Committee that he had initially raised a representation to the application as it was his view that there was insufficient information to address the concerns of Environmental Health and the granting of this application as presented, and therefore would have the likely effect of causing an increase in Public Nuisance and may affect Public Safety within the area.  Mr Koduah advised that he was now personally satisfied with the application and had no objections. 

The Sub-Committee heard from Objectors

Mr Richard Brown addressed the Sub-Committee on behalf of Linus Rees and the Fitzrovia Neighbourhood Association. He explained that it was a concern that a restaurant was seeking to sell alcohol that would not be ancillary to a table meal as that could result in the premises operating as a bar. He advised the Sub-Committee that the concern was enhanced because the premises were situated very close to the West End Cumulative Impact Area.

The Sub-Committee Comments:

The Sub-Committee queried the style of the operation and sought confirmation on how the premises would be managed.  Mr Rob Lucy from the Applicant company advised that the counter staff had an excellent view and would be able to spot if customers are not seated.  Mr Lucy also used the provided plans to highlight the bar area, basement area, kitchen and licensable areas of the premises.  Mr Barry Panto, the Legal Adviser to the Sub-Committee, sought further clarification regarding condition 15, confirming that the sale of alcohol for consumption off the premises had to be in sealed containers and ancillary to takeaway meals. He questioned whether the sales to the customers in the external area should also be regarded as off-sales as the external area appeared to be highway. However, as explained above, Mr Spiegler indicated that whilst that might be true, the external area had already been included within the licensed area before the variation application had been made and he thought that it should remain that way.  Mr Panto indicated that such a situation was unusual but agreed that it was not necessary to alter the situation as part of the variation application and accepted that sales from the external area would, exceptionally, be covered by the conditions relating to on sales only.

Chair Summing Up

The Sub-Committee thanked everyone for their submissions and granted the variation subject to the conditions agreed and as set out below. It was noted that the premises were located close to the Cumulative impact area (CIA) but the application was not contrary to policy and no variation to the operating hours had been proposed (which remained within core hours). However, the members did appreciate the concern that the premises could potentially operate as a bar if variation was granted as applied for. The applicant had indicated that it did still intend to operate as a restaurant but simply wanted the flexibility to sell alcohol to some customers who did not want any food. In those circumstances, the members added a further condition to the effect that the sale and consumption of alcohol had to remain ancillary to the primary use of the premises as a food led establishment.

3.

Hours Premises Open to the Public: No Change

Monday to Sunday 08:00 to 23:30

Seasonal variations/ Non-standard timings: No Change

CONDITIONS CONSISTENT WITH THE OPERATING SCHEDULE

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 sub-paragraph 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.

9. The consumption of alcohol on the premises shall be by seated persons only.

10. Substantial food and non-intoxicating beverages, including drinking water, shall be available throughout the permitted hours in all parts of the premises where alcohol is sold or supplied for consumption on the premises.

11. All waste is to be properly presented and placed out for collection no earlier than 30 minutes before the scheduled collection times.

12. There shall be no service on the forecourt after 23:00 hours

13. All sales of alcohol for consumption off the premises shall be in sealed containers and ancillary to a takeaway meal.

14. There shall be no sales of alcohol for consumption off the premises after 23:00 Monday to Saturday and 22:30 Sunday.

15. 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.

16. 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.

17. 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, searching equipment or scanning equipment

(g) any refusal of the sale of alcohol

(h) any visit by a relevant authority or emergency service.

18. A Challenge 21 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.

19. 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

20. All windows and external doors shall be kept closed after 21:00 hours, except for the immediate access and egress of persons

21. Save for persons seated at the forecourt, 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.

22. Alcohol consumed outside the premises building shall only be consumed by patrons seated at tables.

23. The sale and consumption of alcohol shall remain ancillary to the primary use of the premises as a food led establishment.