Agenda item - Carmina Cafe, Basement Floor To Ground Floor, 88 Wigmore Street, W1

Carmina Cafe, Basement Floor To Ground Floor, 88 Wigmore Street, W1

Meeting of Licensing Sub-Committee (4), Thursday 16th July, 2015 10.00 am (Item 3.)

App

Ward/ Stress Area

Site Name and Address

Application

Licensing Reference Number

Marylebone High Street /

not in stress area

Carmina Café, Basement Floor To Ground Floor, 88 Wigmore Street, W1

Variation

15/03502/LIPV

Minutes:

LICENSING SUB-COMMITTEE No. 4

Thursday 16^th July 2015

Membership: Councillor Jean-Paul Floru (Chairman), Councillor Nick Evans and Councillor Murad Gassanly

Legal Adviser: Heidi Titcombe

Policy Adviser: Chris Wroe

Committee Officer: Toby Howes

Relevant Representations: Environmental Health and two local residents.

Present: Ms Carmelia Olariu (Applicant), Ian Watson (Environmental Health), Sven Becker (local resident) and Christopher French (for John French, local resident)

Declarations: Councillor Jean-Paul Floru declared that he was Chairman of the Licensing Sub-Committee that had considered a previous application from the Applicant in respect of these premises in 2011. However, he did not consider this as a prejudicial interest and so remained present to consider the matter.

Carmina Café, Basement Floor To Ground Floor, 88 Wigmore Street, W1U 3RB 15/03502/LIPV
1.	Variation of conditions
	The proposed application is to: Remove condition 29 and replace with: Alcohol shall be served and consumed on the outside tables & chairs area, by a waiter or waitress service and until 21:00 everyday. To amend condition 13 to state: The supply of alcohol at the premises shall only be to a person seated and only served by a waiter or waitress only. To remove condition 14, “the supply of alcohol shall be by waiter /waitress only” (Applicant has now agreed with the Police that this will remain on the licence) To amend condition 20 to state: A maximum capacity of 50 persons at the premises. In addition the application is to permit the sale of alcohol outside the premises on the tables and chairs from 10:00 – 21:00, Monday – Sunday.
	Amendments to application advised at hearing:
	None.
	Decision (including reasons if different from those set out in report):
	Ms Olariu, the Applicant, began by explaining that she had established the premises in 2000 and that over time she had identified a need to be able to provide alcohol to customers seated in the tables and chairs outside the premises. Currently, condition 29 prevents the sale of alcohol outside the premises. For this reason, she sought an amendment to condition 29 as requested in the application. Ms Olariu confirmed that she wished to table to sell alcohol to customers seated outside from 10:00 to 21:00 daily and that alcohol would be supplied to these customers through a waiter/waitress service. In response to Members’ queries, Ms Olariu contended that it was important to her business that condition 29 be amended as set out in her application as in the spring and summer months, she stated that around 80% of her customers were seated outside. In response to a Members’ query citing evidence in residents’ representations that customers had been consuming alcohol in the outside area in 2013, Ms Olariu asserted that this was due to customers taking their drinks outside when they went to smoke. Mr Watson, from Environmental Health, then addressed the Sub-Committee. Mr Watson stated that residents had presented Environmental Health with evidence which appeared to suggest there had been the unlawful supply of alcohol to customers seated outside in 2013. This was a breach in terms of the licence and resulted in enforcement action being taken by Environmental Health. Mr Watson stated that a meeting had been held with the Applicant to ensure that the Applicant understood the conditions on their premises licence relating to supply of alcohol. Referring to some residents’ complaints in their representation about an ice-cream vending machine, Mr Watson confirmed that it was lawfully located on private land and that it had always been located there whenever he had visited the premises. Members were advised that other licensed premise, which included ‘Black and Blue’ that had a capacity of 150 people also had tables and chairs outside their premises. In the basement of this building was another licensed premises called ‘Basement 92’. This was a more drinks led establishment with a capacity of 200 people. A Lebanese restaurant that had received complaints from residents had since closed. Mr Watson referred to residents’ concerns about safety because of the location of the tables and chairs and their impact upon use of the pavement at a dangerous junction. He responded that where the premises was located was the only part of the junction where there were railings and Transport for London had confirmed that there had been no recent accidents at this spot. Mr Watson confirmed that Environmental Health now agreed to the proposed capacity of 50 people as the District Surveyor had confirmed that this limit was appropriate on public safety grounds. Mr Watson added that providing alcohol to customers seated outside up until 21:00 was acceptable to him. Members sought further information with regard to how busy Wigmore Street was and whether 16 people seated outside as set out in the plans was acceptable to Environmental Health. In reply, Mr Watson advised that Wigmore Street was a busy, four lane road and that Duke Street, which shared a junction with it, was one-way. He confirmed that he was content with a capacity of 16 people outside the premises providing that they were seated, adding that the Metropolitan Police had also requested this in their representation prior to withdrawal and to which the applicant had agreed. Mr Christopher French then addressed the Sub-Committee on behalf of John French, who had made a written representation. Mr French began by stating that Wigmore Street was a busy street suffering from noise and pollution. The pavement was narrow and he felt that allowing customers to drink would exacerbate access to the pavement for pedestrians and make it more difficult for them to cross the road. Mr French stated that there were already a number of other bars in the area that were causing an increase in noise and that there had been residents’ complaints about the ‘Black and Blue’. Mr Becker, a local resident, also addressed the Sub-Committee. Mr Becker stated that he had lived in the area for around ten years and had witnessed a number of changes of use at the premises over this time, which had included a kitchen showroom, hair salon, hair salon/café through to its’ present use, a café with outside terrain. Mr Becker asserted that the change of use had affected quality of life for residents in the area as there had been an increase in disturbances that had led to the Noise Team visiting the premises. Mr Becker contended that the pavement was narrow and that the tables and chairs encroached upon the pavement. Allowing customers to drink would exacerbate the situation as they would be less considerate in ensuring not to interfere with the pavement area. In reply to questions from Members concerning the width of the pavement, Mr Becker asserted that when the premises became busy, the tables and chairs were moved further out onto the pavement. In response to the observation from Members that Wigmore Street was busy beyond 21:00, Mr Becker stated that there had already been a number of changes to the premises that gave cause for concern and that the Applicant could seek an extension of hours at a later time. He added that drinkers already caused disturbances in Mandeville Place, where he lived. The junction with Wigmore Street and Mandeville Place was also dangerous and lorries and coaches often mounted the pavement, a situation that would be made more dangerous by customers drinking outside the premises. Members noted the observation from Mr Watson that the pavement was two metres in width where it passed the premises, not including the private forecourt. Members asked the Applicant how she would ensure that the tables and chairs did not encroach upon the pavement and also sought further explanation with regard to a complaint about live music being played at the premises in August 2013. In reply, Ms Olariu stated that she would take steps to ensure that the tables and chairs did not encroach upon the pavement and that the private area they were located in was wide enough. She stated that a small band had played at the premises in August 2013 and she acknowledged that it had been a mistake to allow this. Ms Olariu confirmed that she wished condition 13 to be amended so that customers could consume alcohol without it being ancillary to food. Members sought Environmental Health’s views with regard to the proposed amendment to condition 13. In reply, Mr Watson stated that although he acknowledged that the premises was a café and could not operate as a restaurant, that it should still provide substantial food to those drinking alcohol. He added that the outside area needed better management and could benefit from a condition asking that notices be put on the outside tables advising customers that they cannot consume alcohol after 21:00 hours. The Sub-Committee granted the application in part. They agreed to amend condition 29 (to become condition 28) to read as “Except between the hours of 10:00 to 21:00, no alcohol was to be consumed outside the premises, including the tables and chairs”. The Sub-Committee added a condition that a notice shall be displayed either on the menu or on the outside tables advising customers that alcohol was not permitted to be consumed outside the premises after 21:00 (condition 34). The Sub-Committee amended condition 20 to increase the capacity to 50 people, excluding staff (now specified as condition 35 of the licence). The Sub-Committee also replaced proposed condition 23 with Model Condition 44. The Sub-Committee considered that the granting of the application with the amended conditions as varied by the Sub-Committee were appropriate and proportionate and would help the Applicant uphold the promotion of the licensing objectives. The Sub-Committee advised the Applicant that any future breaches of the premise licence may result in further enforcement action and relevant authorities and interested parties could also submit an application to review the premises licence. It therefore emphasised to the Applicant the importance of adhering to the conditions on the premises licence and to ensure that all staff understood the conditions on the premises licence.
2.	Sale of Alcohol
	On the premises From To Monday to Saturday: 11:00 to 23:00 Monday to Saturday: 11:00 to 23:00 Sunday: 09:00 to 22:00 Sunday: 09:00 to 22:00 Off the premises Tables and chairs outside on premises demise: Monday to Sunday: 10:00 to 21:00
	Amendments to application advised at hearing: None.
3.	Capacity
	From To 46 (excluding staff) 50
	Amendments to application advised at hearing: None.
4.	Opening Hours
	From To
	Monday to Saturday: 08:00 to 23:00 Main Cafe Sunday: 09:00 to 22:00 Monday to Saturday: 08:00 to 23:00 Sunday: 09:00 to 22:00 Tables and chairs outside: Monday to Saturday: 10:00 to 21:00 Sunday: 10:00 to 21:00
	Amendments to application advised at hearing: None.
	Decision (including reasons if different from those set out in report):
	Granted, subject to conditions as set out below (see reasons for decision in Section 1).

Conditions attached to the Licence

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;

(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.

Additional Conditions

9. A suitably worded sign will be displayed at the point of entry to the premises and at the point of sale advising that proof of age may be required.

10. The premises shall install and maintain a comprehensive CCTV system as per the minimum requirements of a Metropolitan Police Crime Prevention Officer. 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. Recordings shall be made available immediately upon the request of Police or authorised officer throughout the preceding 31 day period.

11. 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 to the public. This staff member must be able to show a Police or authorised council officer recent data or footage with the absolute minimum of delay when requested.

12. 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, which will record the following:

(a) all crimes reported to the venue

(b) all ejections of patrons

(d) any incidents of disorder

(e) 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.

13. The supply of alcohol at the premises shall only be to a person seated taking substantial food there and for consumption by such a person as ancillary to food.

14. The supply of alcohol shall be by waiter or waitress service only

15. Substantial food and suitable beverages other than intoxicating liquor shall be available during the whole of the permitted hours in all parts of the premises where intoxicating liquor is sold or supplied.

16. There shall be no self service of alcohol.

17. There shall be no supply of draught beer.

18. No beer or cider above 5.5% ABV to be sold from the premises.

19. No noise shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance.

20. Clearly legible notices shall be displayed at all exits from the premises requesting patrons to respect the needs of local residents and to leave the premises and area quietly.

21. There shall be no striptease or nudity, and all persons shall be decently attired at all times, except when the premises are operating under the authority of a Sexual Entertainment Venue licence.

22. Clearly legible notices shall be displayed at all exits from the premises requesting patrons to respect the needs of local residents and to leave the premises and area quietly.

23. There shall be no striptease or nudity, and all persons shall be decently attired at all times, except when the premises are operating under the authority of a Sexual Entertainment Venue licence.

24. The entrance door shall be kept closed after 21:00 hours, except for the immediate access and egress of persons.

25. The pavement from the building line to the kerb edge immediately outside the premises, including gutter/channel at its junction with the kerb edge, shall be swept and or washed, and litter and sweepings collected and stored in accordance with the approved refuse storage arrangements.

26. No rubbish, including bottles, shall be moved, removed or placed in outside areas between 2300 hours and 0800 hours.

27. Licensable activities are restricted to the ground floor only.

28. Except between the hours of 10:00 to 21:00, no alcohol purchased at the premises shall be consumed outside the premises including at the tables and chairs outside the premises including at the tables and chairs.

29. Tables and chairs shall not be placed outside the premises before 0730 hours each day.

30. All outside tables and chairs shall be rendered unusable by 2200 hours each day.

31. The supply of alcohol at the premises shall only be to a person seated and by waiter or waitress only

32. Alcohol shall only be consumed by persons seated at tables.

33. Alcohol shall not be consumed outside after 21:00 hours every day.

34. Notices shall be placed on menus or tables outside stating that alcohol must not be consumed outside the building after 21:00 hours.

35. The maximum number of persons accommodated at any one time shall not exceed 50 persons (excluding staff).

36. 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.

Supporting documents:

Carmina Cafe Basement Floor to Ground Floor 88 Wigmore Street, item 3. PDF 8 MB