Agenda item - Wingstop Restaurants, Basement To Second Floor, 138-140 Shaftesbury Avenue, W1

Wingstop Restaurants, Basement To Second Floor, 138-140 Shaftesbury Avenue, W1

Meeting of Licensing Sub-Committee (3), Thursday 1st March, 2018 10.00 am (Item 2.)

App

Ward /

Cumulative Impact Area

Site Name and Address

Application

Licensing Reference Number

St James’s Ward / West End Cumulative Impact Area

Wingstop Restaurants, Basement To Second Floor, 138-140 Shaftesbury Avenue, W1

New Premises Licence

18/00145/LIPN

Minutes:

LICENSING SUB-COMMITTEE No. 3

Thursday 1 March 2018

Membership: Councillor Melvyn Caplan (Chairman), Councillor Karen Scarborough and Councillor Aziz Toki

Legal Adviser: Barry Panto

Policy Adviser: Chris Wroe

Committee Officer: Jonathan Deacon

Presenting Officer: Yolanda Wade

Relevant Representations: Licensing Authority, Amenity Society and 2 local residents.

Present: Ms Lana Tricker (Solicitor, representing the Applicant), Mr Herman Sahota (Director, Applicant Company), Mr Christian Solanot (Operational Director, Applicant Company), Mr David Sycamore and Ms Roxana Haq (Licensing Authority) and Mr David Kaner (Covent Garden Community Association).

Wingstop Restaurants, Basement To Second Floor, 138-140 Shaftesbury Avenue, W1 18/00145/LIPN
1.	Late Night Refreshment (Indoors and Outdoors)
	Monday to Sunday: 23:00 to 00:00
	Amendments to application advised at hearing:
	Ms Tricker, representing the Applicant, advised that the Applicant had withdrawn late night refreshment (outdoors) / takeaway as it was no longer being sought after 23:00.
	Decision (including reasons if different from those set out in report):
	The Sub-Committee heard from Ms Tricker, representing the Applicant. She advised Members that there were two amendments to the application. Firstly, the terminal hour for off-sales on Sunday was reduced from 23:00 to 22:30 and secondly, late night refreshment (outdoors) / takeaway was no longer being sought after 23:00. Ms Tricker explained that the Applicant was unable to accept the Council’s model restaurant condition, MC66, in full. She described the operation of the premises with customers placing their orders at the counter. They would sit down awaiting the food to be prepared/cooked at the premises. Once it was ready, they would collect it from the counter and consume any food or drink whilst seated. There would be no waiter or waitress service at the premises although there was several staff there. There was no bar at the premises and alcohol would not be displayed there. It would be served from behind a counter. Ms Tricker estimated that alcohol sales would be approximately 2% to 3% of turnover. Ms Tricker referred to the proposed conditions, emphasising that the premises would not be drink led. On sales would be ancillary to the meal. Off sales would be in sealed containers, ancillary to a takeaway meal and not consumed on the premises or in the immediate vicinity of the premises. Ms Tricker commented that the off sales condition was an important element for the Police and Mr Kaner for Covent Garden Community Association. The Police had requested that off sales were not consumed in the immediate vicinity of the premises prior to the withdrawal of their representation. The Police had also requested that there was no drinking outside the premises which had been agreed by the Applicant. She added that the conditions also required a Challenge 25 policy to be established. No super-strength beers would be sold at the venue and there would be no self-service of alcohol. There would be three types of beer sold which would be ancillary to a meal. Ms Tricker stated that the main seating area was on the first floor. There were no licensable activities in the basement or on the second floor. She was content for the fact that there were no licensable activities on the two floors to be the subject of a condition on the premises licence in the event the Sub-Committee was minded to grant the application. Ms Tricker also spoke about the representations received. Environmental Health had withdrawn their representation in addition to the Police following conditions having been agreed with the Applicant. Two residents had expressed concerns in their written representations regarding crime and disorder in the area. Ms Tricker believed however that it was significant that the Police had not maintained their representation on these grounds. Ms Tricker made the point that there was a 25 year lease agreement in place and there was no intention to sell the premises. She had no objections if a condition was attached to the licence that the licensable activities authorised by the licence would only be carried on at the premises by the Applicant. It would mean that the licence would have to be varied before it could be operated by another licence holder. The Sub-Committee asked the Applicant a number of questions. These included why the Applicant was seeking beyond Core Hours for on and off sales of alcohol if the sales constituted a small proportion of turnover. Mr Solanot responded that Wingstop Restaurants was not a fast food outlet. Food was cooked fresh, according to the order. Gourmet sauces were used. Beer was ancillary to a meal and it was not anticipated that customers would seek multiple alcohol sales. The Applicant wished to have similar hours on the premises licence for sales of alcohol as the neighbouring premises, Shake Shack. Mr Solanot also explained that the Applicant was keen to follow the United States concept with beer and chicken wings going hand in hand. The Sub-Committee also asked the Applicant to explain how the application would not add to cumulative impact. Mr Solanot replied that there were already people who wished to dine in the area. They would not bring more people into the West End Cumulative Impact Area. Ms Tricker and Mr Solanot added that the Applicant was catering for people going to the theatre. It was not similar to McDonalds, which often involved a short stay. There would be a 30-45 minute dwell time. In response to a question from the Sub-Committee asking how the Applicant intended to prevent food being taken away from the premises, Mr Solanot replied that food would be provided on a tray. The Sub-Committee heard from Mr Sycamore, on behalf of the Licensing Authority. He advised that the Licensing Authority maintained its representation primarily due to cumulative impact concerns. Mr Sycamore referred to paragraph 2.4.4 of the Council’s Statement of Licensing Policy that ‘each incremental increase in capacity contributes in part to increasing the attraction of the area as a “honey pot” destination for night-life and to the cumulative problems created by such a high concentration of activity in the area’. The premises had previously been a bank and was now adding up to 120 people at any one time. Mr Sycamore believed that further information should be provided by the Applicant as to why the application should be granted beyond Core Hours on Mondays to Thursdays and Sundays. He did consider that there was some value in the alcohol not being displayed or advertised and limited to three beers. The Sub-Committee was addressed by Mr Kaner, on behalf of the Covent Garden Community Association. He stated that he did appreciate some of the amendments to the application, including the withdrawal of late night refreshment (outdoors) / takeaway. He shared the Licensing Authority’s concern that Wingstop Restaurants was located in a “honey pot” area, which already contained Shake Shack and McDonalds. The premises had previously been a bank and would add to cumulative impact (Shake Shack had taken over from a restaurant premises). Mr Kaner was keen that the premises had an on sales operation emphasis and he took the view that there would then be value in a condition being attached to the licence that the licensable activities authorised by the licence would only be carried on at the premises by the Applicant. He did prefer on sales to be granted to Core Hours and ancillary to a substantial table meal. Mr Kaner was not just concerned about off sales after Core Hours but the period leading up to it. At 22:00 there would be an adverse impact from off sales in the West End Cumulative Impact Area. He requested that off sales cease at 21:00. Overall Mr Kaner was of the view that the area was already very busy. It would maintain people in the Cumulative Impact Area for longer but he did not believe the impact of Core Hours would be too adverse if the premises had an on sales operation emphasis. It was his understanding in relation to the two representations from residents who were not in attendance at the hearing that their particular concern was takeaway. Mr Panto asked the Applicant for a response in terms of the Council’s policy on fast food premises. Whilst the Applicant had withdrawn takeaway, there was no waiter or waitress service at Wingstop Restaurants and the policy also applied to premises where customers ordered and consumed hot food within the premises on a self-seating basis. The concern from a policy point of view is that customers who have consumed alcohol earlier in the evening in the Cumulative Impact Area would be retained in the area if they have access to fast food, whether that is provide for consumption on or off the premises. Ms Tricker replied that the environment for dining was constantly changing. Whilst there was no waiter or waitress service, there would be plenty of staff present and customers would be seated. The Chairman made the point that there were policy concerns regarding significant number of customers remaining in the Cumulative Impact Area, having consumed alcohol. He asked the Applicant whether it would be acceptable to have waiter or waitress service after 23:00 hours. Mr Solanot replied that the concept would not work if this was introduced. It was not commercially viable to introduce waiter/waitress service for a short period of the day. It would be possible to have waiter and waitresses clearing the table. The Sub-Committee asked the Applicant how many seats there were in the premises. Mr Solanot stated that there were 99 covers. The Sub-Committee put it to the Applicant that since it was not possible to serve people in the queue, the capacity should be 99 rather than 120. The Applicant agreed the capacity of 99. Mr Wroe requested further information on whether cutlery or crockery would be provided. Ms Tricker replied that cutlery was not used when eating chicken wings. Tables would not be laid out with knives and forks. Mr Panto also asked for the Applicant’s view on whether customers could be shown to their tables. Mr Solanot said that this was not a model that was used in the United States and it would change the operation too much. There were no menus handed out. They were written on a board. The Sub-Committee considered that it was appropriate to grant the application in part. The sale of alcohol (both on and off sales) was permitted until 23:00 Monday to Saturday and 22:30 on Sunday. These hours were in keeping with the fact that the Applicant could have late night refreshment until 23:00 without it being licensed and alcohol was ancillary to food. The Sub-Committee noted that late night refreshment (outdoors) / takeaway had been withdrawn. The aspect of the application relating to late night refreshment (indoors) after 23:00 was refused by the Sub-Committee. The Sub-Committee considered that Wingstop Restaurants’ operation was in keeping with a fast food premises. It is the Licensing Authority’s policy (FFP2) to refuse applications for premises supplying fast food inside the Cumulative Impact Areas, other than applications to vary hours within the Core Hours under Policy HRS1. The premises did not comply in a number of ways with the Council’s definition of a restaurant. These included that there was no waiter/waitress service of alcohol, there would be take away service of drink and customers would not be shown to their tables. These measures would have helped to offset concerns regarding people remaining in the cumulative impact area having consumed alcohol. Paragraph 2.4.20 of the Council’s Statement of Licensing Policy refers to concerns in the Cumulative Impact Areas where there are high concentrations of fast food premises in addition to other licensed premises. ‘On this basis and because the attraction and retention of people by the premises mitigates against their rapid dispersal from the cumulative impact areas, the Licensing Authority considers that the grant of variations or new licences for fast food premises in the Cumulative Impact Areas should be limited to exceptional circumstances’. The Sub-Committee wished to be reasonably flexible towards the Applicant within the Council’s policy constraints and permitted the premises to remain open until 23:30 Monday to Saturday and 22:30 on Sunday.
2.	Sale by retail of alcohol (On)
	Monday to Sunday: 11:00 to 00:00
	Amendments to application advised at hearing:
	None.
	Decision (including reasons if different from those set out in report):
	The sale of alcohol for consumption on the premises was permitted until 23:00 Monday to Saturday and 22:30 on Sunday.
3.	Sale by retail of alcohol (Off)
	Monday to Sunday: 11:00 to 23:00
	Amendments to application advised at hearing:
	Ms Tricker, representing the Applicant, advised that the terminal hour for off-sales on Sunday was reduced from 23:00 to 22:30.
	Decision (including reasons if different from those set out in report):
	The sale of alcohol for consumption off the premises was permitted until 23:00 Monday to Saturday and 22:30 on Sunday.
4.	Hours premises are open to the public
	Monday to Sunday: 10:00 to 00:00
	Amendments to application advised at hearing:
	None.
	Decision (including reasons if different from those set out in report):
	The Sub-Committee granted a terminal hour of 23:30 Monday to Saturday and 22:30 on Sunday.
5.	Seasonal variations / Non-standard timings
	Late Night Refreshment (Indoors and Outdoors), Sale by retail of alcohol (On and Off) and Hours premises are open to the public 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.
	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.

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 sale of alcohol for consumption on the premises shall only be to persons purchasing a substantial table meal there and as an ancillary to that meal, which is to be eaten seated at a table or counter in the premises.

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

11. No super-strength beer, lagers, ciders or spirit mixtures of 5.5% ABV (alcohol by volume) or above shall be sold at the premises

12. There shall be no self service of alcohol.

13. A 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

14. 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.

15. 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.

16. 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.

17. No rubbish, including bottles, shall be moved, removed or placed in outside areas between 2300 hours and 0600 hours or as in compliance with Westminster City Council’s own waste contractor collection hours.

18. No deliveries of alcohol to the premises shall take place between 23:00 hours and 06:00 hours on the following day

19. Notices shall be prominently displayed at all exits requesting patrons to respect the needs of local residents and businesses and leave the area quietly.

20. Persons temporarily leaving the premises onto the public highway for the purposes of smoking shall not take any drinks with them.

21. 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.

22. The premises licence holder shall ensure that any patrons smoking outside the premises do so in an orderly manner and are supervised by staff so as to ensure that there is no public nuisance or obstruction of the public highway.

23. 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.

24. During the hours of operation of the premises, the licence holder shall ensure sufficient measures are in place to remove and prevent litter or waste arising or accumulating from customers in the area immediately outside the premises, and that this area shall be swept and or washed, and litter and sweepings collected and stored in accordance with the approved refuse storage arrangements by close of business.

25. The approved arrangements at the premises, including means of escape provisions, emergency warning equipment, the electrical installation and mechanical equipment, shall at all material times be maintained in good condition and full working order.

26. The means of escape provided for the premises shall be maintained unobstructed, free of trip hazards, be immediately available and clearly identified in accordance with the plans provided.

27. All emergency doors shall be available at all material times without the use of a key, code, card or similar means.

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

29. The edges of the treads of steps and stairways shall be maintained so as to be conspicuous.

30. Curtains and hangings shall be arranged so as not to obstruct emergency safety signs or emergency equipment.

31. All fabrics, curtains, drapes and similar features including materials used in finishing and furnishing shall be either non-combustible or be durably or inherently flame-retarded fabric. Any fabrics used in escape routes (other than foyers), entertainment areas or function rooms, shall be non-combustible.

32. 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.

33. 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

(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.

34. 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.

35. No licensable activities shall take place at the premises until the premises has been assessed as satisfactory by the Environmental Health Consultation Team at which time this condition shall be removed from the Licence by the licensing authority.

36. All sales of alcohol for consumption off the premises shall be in sealed containers and ancillary to a takeaway meal only, and shall not be consumed on the premises or in the immediate vicinity of the premises.

37. The sale of alcohol shall be limited to a selection of 3 beers.

38. No fumes, steam or odours shall be emitted from the licensed premises so as to cause a nuisance to any persons living or carrying on business in the area where the premises are situated.

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

40. No licensable activities shall take at the premises until the capacity of the premises has been assessed by the Environmental Health Consultation Team and a condition detailing the capacity so determined has replaced this condition on the Licence. The capacity to be determined shall not exceed 99 persons.

41. There shall be no licensable activity in the basement or on the second floor of the premises.

Supporting documents:

Wingstop LSC Amended, item 2. PDF 804 KB