Agenda item - O'Neill's, 37-38 Great Marlborough Street, W1

O'Neill's, 37-38 Great Marlborough Street, W1

Meeting of Licensing Sub-Committee (2), Thursday 7th September, 2017 10.00 am (Item 3.)

App

Ward /

Cumulative

Impact Area

Site Name and Address

Application

Licensing Reference Number

West End Ward / West End Cumulative Impact Area

O’Neill’s, 37-38 Great Marlborough Street, W1

Variation of a Premises Licence

17/07390/LIPV

Minutes:

LICENSING SUB-COMMITTEE No. 2

Thursday 7th September 2017

Membership: Councillor Tim Mitchell (Chairman), Councillor Heather Acton and Councillor Rita Begum

Legal Adviser: Horatio Chance

Committee Officer: Jonathan Deacon

Presenting Officer: Daisy Gadd. Heidi Lawrance also in attendance.

Relevant Representations: Licensing Authority.

Present: Ms Bo-Eun Jung (Counsel, Representing the Applicant), Ms Karen Fahy (Manager, Applicant Company), Ms Kerry Rossall (Designated Premises Supervisor), Mr Joseph Concannon (Designated Premises Supervisor, Green Man Public House, 57 Berwick Street), and Mr David Sycamore (Licensing Authority).

O’Neill’s, 37-38 Great Marlborough Street, W1 (“The Premises”) 17/07390/LIPV
1.	To vary the sale of alcohol on Sunday (to include Sunday immediately prior to a bank holiday) to commence at 10:00 hours. The commencement hour on the existing premises licence on Sundays is midday.
	Amendments to application advised at hearing:
	None.
	Decision (including reasons if different from those set out in report):
	The Applicant (Mitchells And Butlers Leisure Retail Ltd) submitted an application for a variation of the premises licence at 57 Berwick Street and also an application for a variation of the premises licence at 37-38 Marlborough Street. These two applications were scheduled for the same Licensing Sub-Committee meeting on 7 September 2017. The two applications were heard together by the Sub-Committee with the agreement of the parties to the hearing as the Applicant in both cases was seeking to bring the commencement hour forward for the sale of alcohol on Sunday from midday to 10:00 hours. The Sub-Committee would however, produce separate Decisions for each of the Premises. It was noted that both premises are located within the Council’s West End Cumulative Impact Area. The Sub-Committee heard from Ms Jung. She stated that O’Neills which opened at 09:00 provided a substantial breakfast menu (included in the report), catering for tourists and weekend shoppers in particular. Ms Jung explained that the Applicant wished to enable customers to be given the option of having an alcoholic drink such as a glass of prosecco or a bloody mary with their breakfast. She added that there was no intention to have drinks promotions or advertise the fact that there would be sales of alcohol on Sunday mornings. Ms Jung stated that the Applicant was well aware that the Premises is located in the West End Cumulative Impact Area and that the proposed hours were outside of the Council’s Core Hours policy (Core Hours commences at midday on Sundays). She made the case for the application being an exception to the Council’s policy and that the application would not add to cumulative impact. Ms Jung referred in particular to paragraph 2.4.1 of the City Council’s Statement of Licensing Policy that specific locations in the City had ‘been identified as cumulative impact areas because the cumulative effect of the concentration of late night and drink led premises and/or night cafés has led to serious problems of disorder and/or public nuisance affecting residents, visitors and other businesses’. She had also identified other instances where the SLP had indicated that it was particularly the retention of people late at night in the cumulative impact areas which caused these issues. Ms Jung expressed the view that the hours between 10:00 and 12:00 were sufficiently late in the day and that they would not be exploited by customers who stayed out all night drinking. They would appeal to customers who wanted to have a drink with their breakfast. She confirmed that a condition had been agreed with Environmental Health and the Police that alcohol sold between 10:00 and 12:00 on Sundays would be ancillary to substantial food and on that basis they had subsequently withdrawn their representations. The alcohol would be for consumption on the Premises only. Ms Jung also advised the Sub-Committee that the menus and also staff would inform customers that no alcohol would be sold on Sunday mornings without them consuming a substantial meal. Ms Jung stated that Mr Concannon, the Designated Premises Supervisor, had some twenty five years’ experience in the industry. He had been the General Manager of the Spirit Pub Company. She commented that his experience and effectiveness of the manager was reflected in the fact that there had been no crime and disorder or public nuisance issues at the Premises during the last year. Ms Jung advised the Sub-Committee that the Applicant had a number of other premises in the City where alcohol was sold on Sunday mornings and there had been no reported problems raised at those premises and the Premises in question. She referred also to there being no objections to the application from local residents. The Sub-Committee was addressed by Mr Sycamore on behalf of the Licensing Authority. He stated that the Licensing Authority welcomed that there would be no drinks promotions and that alcohol sold on Sunday mornings would be ancillary to food. The Licensing Authority however maintained their representation as the Premises are located in the West End Cumulative Impact Area and that the proposed hours were outside of the Council’s Core Hours policy. The Licensing Authority did have some concerns as the SLP acknowledges that residents are entitled to an extra respite from the impact of licensed premises on a Sunday. Mr Sycamore made the point that the Council’s policy document also sets out that operators are expected to run premises well and that this did not in itself constitute an exception to policy. The Sub-Committee asked Ms Jung whether the Applicant was willing to have a condition on the premises licence that there would be no drinks promotions or advertising of alcohol sold between 10:00 and midday in the event the Sub-Committee was minded to grant the application. Ms Jung confirmed that this was acceptable to the Applicant. The Sub-Committee asked Mr Sycamore whether such a condition being attached to the premises licence would provide him with greater reassurance. He replied that it would. The primary concern of the Licensing Authority was if the alcohol was attracting more people into the West End Cumulative Impact Area. It was stated that preventative conditions could go some way to supporting the policy in this respect. The Sub-Committee noted that the Applicant already offered breakfast from 09:00 to 12:00 and asked whether it was expected that the sale of alcohol would add to footfall at this location. Ms Jung replied that it was not expected to increase footfall, particularly as there would be no drinks promotions and no advertising of this offer. The opinion stated was that breakfast trade would remain popular as it was already. Ms Jung also provided the information to the Sub-Committee that the number of covers for Green Man Public House is 30. The Sub-Committee noted it is the Council’s policy to refuse applications in the Cumulative Impact Areas for pubs and bars other than applications to vary hours within the Core Hours under Policy HRS1. It was also noted that Core Hours on Sunday commence at midday. The Sub-Committee therefore gave careful consideration when reaching a decision in respect of this application. The Sub-Committee shared the view of the Licensing Authority that the primary concern in policy terms would be if the sale of alcohol at the Premises attracted more people into the West End Cumulative Impact Area and were to undermine the licensing objectives. However, the Applicant was offering conditions that on sales of alcohol would be ancillary to substantial food for the additional two hours applied for on Sunday morning and that no drinks promotions or such other advertising (including on the Applicant’s websites) would take place indicating that the sale of alcohol is permitted on Sunday between the hours of 10:00 and 12.00. The Sub-Committee considered that this went some way to reassure that the application would not attract customers earlier into the cumulative impact area in search of a drink led premises, which clearly was not the intention of the Applicant by seeking this proposed offer to sale alcohol earlier. The Sub-Committee would have had greater concerns that the Premises management was seeking to attract customers in search of alcohol had the commencement hour for on-sales been earlier than 10:00 hours. The Sub-Committee decided to grant the application as applied for. Whilst the Sub-Committee appreciated that running the Premises well and the designated premises supervisor having significant experience is not a reason in itself to grant an application as an exception to the Council’s policy, the Applicant did provide some additional reassurance in the decision to grant the application that would promote the licensing objectives. The Sub-Committee noted that the Police and Environmental Health had withdrawn their representations and that there had been no objections from local residents which were a key consideration in the Sub-Committee’s determination of the matter. It was therefore the Sub-Committee’s considered view that the imposition of these conditions is entirely appropriate, proportionate in order to achieve this promotion.
2.	To amend condition 11C & D under Annex 3 to reflect the hours on Sundays to be from 10:00 hours.
	Amendments to application advised at hearing:
	None.
	Decision (including reasons if different from those set out in report):
	The Sub-Committee granted the application as applied for (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. The terminal hour for late night refreshment on New Year's Eve is extended to 05:00 on New Year's Day.

10. The Venue will 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 venue is open for licensable activities for a 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. The permitted hours for sale and supply of alcohol is:

(a) Monday to Thursday 10:00 to 23:30

(b) Friday to Saturday 10:00 to 00:00

(d) Sunday Prior to Bank Holiday: 10:00 to 00:00

(e) On New Year's Eve from the end of permitted hours on New Year's Eve to the start of permitted hours on the following day (or, if there are no permitted hours on the following day, midnight on 31st December).

12. Customers shall be off the premises by no later than 23:30 Monday to Thursday, 00:00 Friday to Saturday and Sunday prior Bank holiday and 22:50 Sunday.

13. Credit card sales shall be allowed, subject to the proviso that customers are to be presented with an itemised bill.

14. All persons under the age 0f 14 shall be accompanied at all times by an adult. No person under 14 shall be allowed to remain in the bar area after 21:00 unless they are taking table meals accompanied by an adult when after 21:30.

15. Noise and vibration will not be allowed to emanate from the premises so as to cause a public nuisance to nearby properties.

16. All windows and doors to be kept closed when regulated entertainment takes place except immediate access and egress of persons. For avoidance of doubt the reference to regulated entertainment does not include background music.

17. A sound limiting device must be fitted to the musical amplification system set at a level determined by and to the satisfaction of an authorised officer of the Environmental Health Service. The keys securing the noise limiter shall be held by the applicant only, and shall not be accessed by any other person. The limiter shall not be altered without prior agreement with the Environmental Health Service.

18. No alteration or modification to any existing sound system(s) should be effected without prior knowledge of an authorised officer of the Environmental Health Service.

19. Any additional generating equipment shall not be used on the premises without being routed through the sound limiter device.

20. There shall be no licensable activities or consumption of alcohol by patrons permitted outside the premises after 23:00 Monday to Saturday and after 22:30 on Sunday except as may be permitted under any street trading licence that may be granted by Westminster City Council.

21. Whilst live music is taking place the number of persons accommodated at any one time (excluding staff) shall not exceed the following:

225 persons ground floor.

22. All emergency doors shall be maintained effectively self closing and not held open other than by approved device.

23. Curtains and hangings shall be arranged so as not to obstruct emergency signs.

24. The certificates below shall be submitted to the Licensing Authority upon written request:

(a) any emergency lighting battery or system

(b) any electrical installation

25. Any special effects or mechanical installations shall be arranged and stored so as to minimise any risk to the safety of those using the premises. The following special effects will only be used 10 days prior notice being given to the Licensing Authority where consent has not previously been given:

- dry ice and cryogenic fog

- smoke machines and fog generators

- pyrotechnics including fire works

- firearms

- lasers

- explosives and highly flammable substances

- real flame

- strobe lighting

26. Flashing or particularly bright lights on or outside the premises shall not cause a nuisance to nearby properties (save insofar as they are necessary for the prevention of crime).

27. All electrical sockets used to supply power for hand held electrical equipment shall be protected by a residual current device of 30 milliamps sensitivity complying with British Standard Specification 4293 : 1993.

28. No person shall give at the premises any exhibition, demonstration or performance of hypnotism, mesmerism or any similar act or process which produces or is intended to produce in any other person any form of induced sleep or trance in which susceptibility of the mind of that person to suggestion or direction is increased or intended to be increased. NOTE: (1) This rule does not apply to exhibitions given under the provision of Section 2(1A) and5 of the Hypnotism Act 1952.

29. No entertainment, performance, service or exhibition involving nudity or sexual stimulation which would come within the definition of a sex establishment in Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 as amended by the Greater London Council (General Powers) Act 1986 (whether or not locally adopted), shall be provided.

30. There shall be no striptease or nudity and all persons shall be decently attired at all times.

31. 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.

32. There shall be no loud speakers located within the acoustic lobby or externally.

33. The performance of live music shall be restricted to a maximum of 4 performers.

34. 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) any complaints received regarding crime and disorder

(d) any faults in the CCTV system

(e) any refusal of the sale of alcohol

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

35. There shall be no live music or sound checks Monday to Friday from 09:00 hours to 18:00 hours except for Bank Holiday Mondays.

36. All performances of live music shall be restricted to the raised area only as shown on the plan MC605-203 dated March 2011.

37. The sale of alcohol on Sunday between the hours of 10.00 and 12.00 and shall be for consumption "on" the premises only, and shall be ancillary to substantial food.

38. No drinks promotions or such other advertising shall take place indicating that the sale of alcohol is permitted on Sunday between the hours of 10:00 and 12.00.

Supporting documents:

O'Neills 37-38 Great Marlborough Street W1, item 3. PDF 2 MB