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 MAIDSTONE BOROUGH COUNCIL

 

LICENSING COMMITTEE

 

30 OCTOBER 2012

 

REPORT OF THE HEAD OF DEMOCRATIC SERVICES

 

Report prepared by Lorraine Neale 

 

 

1.      LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1982, SCHEDULE 3 – APPLICATION FOR SEX ESTABLISHMENT LICENCE – FOR TANTRIC BLUE, 9 GABRIELS HILL , MAIDSTONE, KENT, ME15 6HL

 

1.1        Issue for Decision

 

1.1.1   To consider and determine the application made on 17 July 2012 by Illuminati Ventures Ltd for a Sex Establishment Licence for a Sexual Entertainment Venue which has been made under the Local Government (Miscellaneous Provisions) Act 1982, Schedule 3 as amended by the Policing and Crime Act 2009

 

1.2        Recommendation of the Head of Democratic Services

 

Prior to consideration of the application

 

 

1. That the Committee consider any representations from persons who made objections out of time and the applicant, on whether they should exercise their discretion to have regard to objections made after 14 August 2012 and determine whether or not to exercise that discretion.

 

2. That the Committee consider and determine the application, (including in respect of the variation of 3 standard conditions), for a sexual entertainment venue licence received from Illuminati Ventures Ltd for Tantric Blue, 9 Gabriels Hill, Maidstone, Kent, ME15 6HL,  in accordance with the statutory test pursuant to Schedule 3 of the LG(MP)A 1982..

 

iii.  If required following a decision to have regard to late objections at i) above;

 

That the Council retains its policy that the locality and appropriate number of sex establishments, if any, be determined in relation to  each application for a sex establishment licence. Such determination will be made on its individual merit, at the time the application is decided.  

 

1.3        Reasons for Recommendation

 

1.3.1  On 2 March 2011 the Council  resolved to adopt the Local        Government           (Miscellaneous Provisions) Act 1982, as amended by section 27 of the        Policing and Crime Act 2009; therefore, subject to limited exceptions           and exemptions, or in the absence of a waiver, premises offering   relevant entertainment require a Sexual Entertainment Venue (SEV)          licence to operate in Maidstone. The date the full requirements for any        new licences granted to applicants, come into force in Maidstone.

          was 1 May 2012.

 

1.3.2  Where a licence is granted any standard conditions adopted by the   Council will automatically be imposed unless expressly excluded or   varied. The Council has adopted standard conditions to be applied to a          licence and a policy to facilitate consideration of applications and    guidance is provided to the committee later in this report.

 

1.3.3 An application was received on 17 July 2012 from Illuminati Ventures Ltd for a Sexual Entertainment Venue licence  in respect of Tantric Blue, 9 Gabriels Hill, Maidstone, Kent, ME15 6HL and a copy is attached at Appendix A. The application is accompanied by a location plan and a layout plan of the premises (these documents are large and are available to view at the Council offices during normal office hours Monday to Friday, you may contact the licensing office on 01622 602028 to arrange a viewing, they will also be made available on the day of the hearing), also the Operation and Background supporting documentation including an advertising example is attached as Appendix B.

 

 

1.3.4 The applicant is required to serve a copy of their application on the    Chief Officer of Police and to give notice to other interested parties by    way of a notice on site for 21 days and in the local paper once within        7 days of application. These requirements have been satisfied for this application. A copy of the site notice and newspaper advert as it appeared in the Kent Messenger on 20 July 2012 is attached as Appendix C. Any objections were required by 14 August 2012.

 

1.3.5 There have been no observations from the police on this application.

 

1.3.6 Three letters of objection were received up to 14 August 2012, which include 1 from Maidstone Town Centre Management Ltd and 1 from Players, a sexual entertainment venue at 57 High Street, in summary their objections are:-

-The area is inappropriate, having regard to the character of the relevant locality and the use to which premises in the vicinity will be put. The uses referred to include; shops, cafes and businesses that are family orientated.

- The potential effect on crime and anti social behaviour in the area.

- That families/children walking by would be affected by the presence of a SEV.

- That a use of this nature would not be appropriate in a town which encourages families and the creation of housing in the town.

- the premises are not suitable.

Members should note that licences cannot be refused on solely moral grounds i.e. sex establishments are immoral and none should be allowed. They need to confine their considerations to matters relevant to the statutory grounds, (12.3 policy).

 

Copies of the objections providing full details of the comments are attached as Appendix D. The names and e-mail addresses of one of the objectors has been redacted as this objector has not provided consent to their details being revealed to the applicant.

 

1.3.8 There have also been, to date, 43 late letters of objection. These were received after the 14 August 2012 deadline date. All the objections except two were received by e-mail, they were received on the following dates 3 on 28.8, 16 on 29.8, 11 on 30.8, 5 on 31.8, 2 on 1.9, 2 on 2.9, 1 on 3.9, 2 on 5.9 and 1 on 8.10, 10 of the objectors gave no reasons as to why their objections were late, 33 of the objectors indicated that the matter had just been brought to their attention. There are no new issues raised within them and the applicant has been supplied with all the objections including the late ones so that they may have the opportunity to consider and comment should the necessity arise. It has been explained to the applicant and the late objectors that the Committee have to have regard to objections lodged in time but also that the Council have a discretion to take into account late objections. It is for the Licensing Committee to decide if they will exercise that discretion. Members will need to consider whether any late objections appear to be intentionally last minute and would cause any prejudice to the applicant or unacceptable disruption to Council business and any reasons given for lateness.

         These will be available on the day of the meeting should Members decide to admit them.

 

1.3.9 The definition of a Sexual Entertainment Venue is any premises at     which relevant entertainment is provided before a live audience for the financial gain of the organiser or the entertainer.

         An application for a licence for such a premises can only be refused on statutory grounds, some of these are mandatory grounds, see 1.3.17 and some discretionary, see 1.3.18. The Committee, therefore, have to consider only objections relevant to the statutory grounds of refusal.

 

1.3.10 In considering this application the Committee should have regard to:

 

            • Schedule 3 Local Government (Miscellaneous Provisions) Act 1982, as               amended by Policing and Crime Act 2009 (Appendix E)

 

In considering this application the Committee may be assisted by having regard to:

 

                        • The Council’s Sex Establishments Policy (Appendix F)

            • Home Office – Sexual Entertainment Licence – Guidance for England                              and Wales, (Appendix G)

           

 

1.3.11 Additionally Section1 and Schedule 1 Parts I & II of The Human Rights         Act 1998 will apply to this application:

 

Article 1 – Every person is entitled to the peaceful enjoyment of his

or her possessions including the possession of a licence and shall not

be deprived of the possession except in the public interest

 

Article 6 – That in the determination of civil rights and obligations

everyone is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by law.

 

Article 10

 

1. Everyone has the right to freedom of expression. This right shall

include freedom to hold opinions and to receive and impart

information and ideas without interference by public authority and

regardless of frontiers. This article shall not prevent States from

requiring the licensing of broadcasting, television or cinema

enterprises.

 

2. The exercise of these freedoms, since it carries with it duties and

responsibilities, may be subject to such formalities, conditions,

restrictions or penalties as are prescribed by law and are

necessary in a democratic society, in the interests of national

security, territorial integrity or public safety, for the prevention of

disorder or crime, for the protection of health or morals, for the

protection of the reputation or rights of others, for preventing the

disclosure of information received in confidence, or for

maintaining the authority and impartiality of the judiciary.

 

              See item 7, page 7 of the Council’s ‘Sex Establishments Policy.

 

1.3.12   The Provision of Services Regulations 2009 imposes three tests on any                     refusal of a licence under the Act, they must be:-

 

·         Non discriminatory

·         Necessary

·         Proportionate                 

 

1.3.13   Section 17 of the Crime and Disorder Act 1998 imposes a duty on                         Licensing Authorities to have due regard to the likely effect of the                        exercise of their functions on and the need to do all they reasonably                           can to prevent Crime and Disorder.

 

 

1.3.14   The Equality Act 2010, Section 149 requires public authorities in the exercise of their functions to have due regard to the need to eliminate discrimination, harassment and victimisation, to advance equality of opportunity between the sexes and foster good relations between them.  Consideration of this may inform Conditions.  This duty also covers religious belief and disability.

 

1.3.15   The premises situated at 9 Gabriels Hill, Maidstone, Kent, ME15 6HL, formerly known as Ethos already holds a premises licence under the Licensing Act 2003 which was issued on 2 September 2005. The premises when operating as Ethos ran with no issues or complaints being reported to the Licensing Department. The premises have been closed and vacant for at least two years. However, the application under consideration is separate to the regime imposed by the 2003 Act. A copy of the current premise licence is attached as Appendix H.  

 

1.3.16   Extent and Nature of the Relevant Entertainment.

 

             The application is for the provision of sexual entertainment, specifically lap dancing, pole dancing, stage striptease and erotic dance. Sunday to Wednesday between the hours of 20:00 – 05:00 on the following day and Thursday to Saturday 20:00 – 06:00 on the following day.

 

 

         The premises have altered significantly since it operated as Ethos, the Gabriels Hill side of the premises is now a betting shop occupied by Paddy Power. Tantric Blue is proposed to operate on the first floor of the premises and could only be accessed from King Street, set back from the main road and it would not be possible for the passing population to see into the premises. The windows of the premises would either have blinds or will be blacked out. Minimal signage would be on the street and would be subject to any planning requirements and approval of the licensing department.

 

1.3.17   Mandatory Grounds of Refusal.

 

             Paragraph 12(1) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 and

             Section 12.1 of the Sex Establishments Policy detail the mandatory              grounds for refusal of an SEV licence which are:-

             (a) to a person under the age of 18 years; or

             (b) to a person who is for the time being disqualified due to having had a previous licence revoked in the area of the appropriate authority within the last 12 months ;or

(c) to a person, other than a body corporate, who is not resident in an EEA state or was not so resident throughout the period of six months immediately preceding the date when the application was made; or

(d) to a body corporate which is not incorporated in an EEA state; or

(e) to a person who has, within a period of 12 months immediately preceding the date when the application was made, been refused that grant or renewal of a licence for the premises, vehicle, vessel or stall in respect of which the application is made, unless the refusal has been reversed on appeal.

         There is no evidence that any of these grounds are applicable to this application and none are raised by Police observations or representations by the objectors to this application.

 

1.3.18 Discretionary Grounds of refusal.

 

                   Paragraph 12(3) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 and Section 12.2 of the Sex Establishments Policy detail discretionary grounds for refusal of an SEV licence.         

 

(a) the applicant is unsuitable to hold the licence by reason of having been convicted of an offence or for any other reason

(b) if the licence were to be granted, renewed or transferred, the business to which it relates would be managed by or carried on for the benefit of a person, other than the applicant, who would be refused the grant, renewal or transfer of such a licence if he made the application himself

(c) the number of sex establishments or sex establishments of a particular kind in the relevant locality at the time the application is determined is equal to or exceeds the number which the authority consider is appropriate for the locality

(d) the grant or renewal of the licence would be inappropriate, having regard:

(i)   to the character of the relevant locality; or

(ii)  to the use to which any premises in the vicinity are put; or

(iii) to the lay out, character or condition of the premises, vehicle,    vessel or stall in respect of which the application is made.

 

1.3.19 Suitability of Applicant/ Business to be Managed or Carried on for the Benefit  of a Person who Would be Refused- (paragraph 12.4 a) and b) policy).

               

    The applicant of the premises is Illuminati Ventures Ltd.

 

 

The following are named in the application as the persons responsible for the management of the establishment.

 

 

·      Ricardo Monty (Director) ) is also is involved with the Tantric Blue at Heathrow Annex A, Appendix A, in Part II, provides information on suitability.

 

·      Spencer Tregidgo (Director) Annex A, Appendix B, in Part II, provides information on suitability.

 

• Anne Marie Harris (Manager) is also is involved with the Tantric Blue at Heathrow Annex A, Appendix C, in Part II, provides information on suitability.

 

 

This is a new venture for the applicant at Maidstone. However Ricardo Monty and Anne Marie Harris are involved with the Tantric Blue venue at Heathrow. On making enquiries with the Licensing Officer at Slough Council we were informed there had been no issues or problems reported in relation to the premises.

There is no evidence that these grounds are applicable to this application and none were raised by Police observations or representations by objectors to this application.

 

1.3.20Appropriateness of the layout, character or condition the Premises     Paragraph 12(3) (d) (iii) of Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982 and

 

             (paragraph 12.12 Policy).

            

                       The applicant has included layout plans which clearly show the proposed size and general appearance of the club. The applicant has applied for lap dancing, pole dancing, stage striptease and erotic dance                 on Sunday to Wednesday between the hours of 20:00 – 05:00 on the following day and Thursday to Saturday 20:00 – 06:00 on the following day. Included as part of the application are Statements from Ricardo Monty, Spencer Tedgidgo and Anne Marie Harris, a report from Graham Murdoch, Code of Conduct for Dancers and Customers, Operational Guidelines, Dancers Welfare Policy, Policies on ejection, drugs and searches, photographs, menus and a brochure. These documents combined are provided to illustrate the suitability of the managements systems with regard to these premises.

 

             The layout plan shows a stage situated toward the rear of the sexual entertainment premises that is surrounded by seating. It shows eight private booths used for private dances and six of these have individual CCTV cameras installed in them which are also monitored. The matter of the two private booths that do not have CCTV installed has been brought to the applicant’s attention and will be resolved before the meeting. The dancer’s facilities are shown on the second floor of the building, this is also where the public toilets are and there does not appear to be any facilities to monitor the access to the dancer’s changing room, this has been brought to the applicant’s attention and will be resolved before the meeting. 

            

1.3.21What is the Relevant Locality?

This is relevant to Paragraphs 12(3) (c) and (d) (i) of Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982 and Paragraphs 12.5 to 12.10 policy refer.

         

The building is located in Gabriels Hill, an area with mixed uses, see paragraphs 1.3.22 and 1.3.23 for further detail. Members may wish to consider the locality at the time of this decision and consider the locality at the time when it is proposed the premises will be operating as an SEV. Parties at the hearing will be able to make submissions on this issue.

Locality may be a large area, probably larger than vicinity, but the locality is a matter for members and will depend on the circumstances of the case. It has been held that locality cannot be the entire administrative area and further that locality is likely to be a homogenous area. Case law has held that a whole town may be too large. There does not have to be a clearly predefined area or precise boundaries.

 

1.3.22What is the Character of the Relevant Locality?

Paragraph 12(3)(d)(i) of Schedule 3 to the Local Government (Miscellaneous provisions) Act 1982 and paragraph 12.10 policy.

 

The area is in the Maidstone Town Centre conservation area, there are numerous listed building in the vicinity including 9 Gabriels Hill for further details see the plan attached at Appendix I

 

There are no residences located immediately adjacent to the  premises, but there are residential premises in the area. In general there are 40 residential properties in Gabriels Hill. There are 20 residences at Granada House, which is situated at the Lower Stone Street end of Gabriels Hill, 13 of these are occupied. The other 20 are residences above properties 12 of which are occupied with the nearest residence being Flat 2, 15A Gabriels Hill.

There are other licensed premises, (Licensing Act 2003), in Gabriels Hill and nearby that also form part of the night time economy, they are:-

 

Name of premises	Address	Opening Hours
Attila Kebab House	16 Gabriels Hill	Sun – Thurs 23:00 – 03:00  Fri & Sat 23:00 – 05:00
Strawberry Moons	24-32  Gabriels Hill	Mon – Sun 11:00 – 05:00 Max Capacity n/a
Roadhouse	33 Gabriels Hill	Mon to Sun 11:00 – 06:00 Max Capacity n/a
R Bar	34a-34b  Gabriels Hill	Mon to Sun 00:00 – 00:00 Max Capacity n/a
Britannic Fish Bar	54  Gabriels Hill	Mon to Sun 23:00 – 04:00 Max Capacity n/a
Stone Street Club	2 Lower Stone Street	Mon to Sun 10:00 – 00:30 Max Capacity n/a
Newsplus	7-8 Granada House,  Lower Stone Street	Mon to Sun 07:00 – 23:00
Kent Food Centre	9-10 Granada House,  Lower Stone Street	Mon to Sun 07:00 – 00:00
Gala Bingo	Lower Stone Street	Mon to Sat 10:00 – 00:30 Sunday 12:00 -00:30
Inkbar	15-17 King Street	Sun to Wed 09:00 – 02:30 Thurs to Sat 09:00 – 05:00
AMF Bowling	59 – 71 King Street	Mon – Sat 10:00 – 01:30 Sunday 10:00 – 23:00

 

 

 

          There are shops/businesses that operate during the day immediately

          around the premises. Gabriels Hill is a retail thoroughfare and pedestrian street, see policy paragraph 12.13. However the premises       will not be accessed from Gabriels Hill but from King Street. The access from King Street is adjacent to the entrance of the Mall shopping Centre which closes by 18:30. The premises are proposed at first floor level and standard conditions would restrict advertising.

 

There is a newly established space not far approximately 40 – 50 metres from the proposed premises which is used for civic and community events, which will be held on a number of days in the year during both the day and evening. Some examples of events already held are Olympic Torch Event, Japanese Dancers and the Flag Ceremony. The square contains seating and is used by the public as a meeting and resting place also during the summer months there are children’s funfair rides in position there.

 

There are bus stops located in King Street but as Tantric Blue would lie back in a courtyard and behind shops that are in King Street, it is not possible to see the premises at all from the bus stops, however if the premises were to open any advertising material which may be displayed outside the courtyard gates may be seen. The premises would not operate until 20:00 hours however which would be after schools finish and normal commuting times.

 

Parties at the hearing will be able to make submissions on the character of the locality and their reasons at the hearing.

 

1.3.23What is the vicinity and What are the Uses of Other Premises in the Vicinity?

 

Paragraph 12(3)(d)(ii) of schedule 3 to the Local Government (Miscellaneous Provisions)Act 1982 and paragraph 12.11 policy.

 

Vicinity is likely to be a narrower area than “relevant locality” and parties will be able to make representations on this issue.

Paragraph 1.3.22 describes the character of the locality and here I concentrate on the uses of premises which may be relevant to members consideration if they are considered to be in the vicinity of the premises.

 

The nearest residential properties are at Flat 2, 15A Gabriels Hill, there are other Licensing Act 2003 premises nearby that attract a significant number of customers.. There is already a Premise licence in place at 9 Gabriels Hill which could be utilised without the premises having a Sexual Entertainment Venue licence.

 

The nearest churches are Maidstone Baptist Church at the corner of   Knightrider street and Mill Lane and All Saints Church which is directly     opposite on College Road (0.5 mile). There is also the United Reform in Week Street (0.3 mile) and the Life Church and Methodist Church in Brewer Street (0.3 mile).

 

The nearest schools are Maidstone Boys Grammar School at Barton Road (0.7mile) Invicta Girls Grammar School and Valley Park School are at Huntsman Lane (0.6 mile).

 

The nearest public recreation spaces are the amphitheatre by the riverside and Brenchley Gardens.

 

Bus stops are situated on King Street opposite the shops adjacent to the Chequers shopping centre entrance, the only Licensing Act 2003 premises in King Street are the Inkbar on the corner at Church Street and AMF bowling which is further up King Street opposite the Council Gateway offices.

                                                                               

The premises are within the Maidstone conservation area and the nearest historic buildings are Archbishops Palace, All Saints Church, Carriage Museum and the Town Hall. Also the majority of the buildings in Gabriels Hill are also listed see the plan attached at Appendix I

 

There is one licensed sex establishment at 57 High Street. There has been application received for a Sexual Entertainment Venue at 87 – 88 Bank Street and the hearing to determine that matter is to be held on 22 October 2012. The decision will be known when this matter is heard at Licensing Committee and an oral update provided.

 

          The premises in the area mainly reflect two types of economy namely the retail outlets during the day and those establishments relevant to the night time economy. Gabriels Hill is a mix of these but King Street is largely day time economy only.

         

1.3.24 Would a Sex Establishment of this Type be Appropriate?

 

         Would an SEV of the nature proposed be appropriate having regard to the premises, the character of the relevant locality and the use of the premises in the vicinity? Members should consider the facts that have been established from the application, representations in writing and all submissions made at the hearing and determine whether a grant in these circumstances would be appropriate.

 

1.3.25What is the Appropriate Number of Sex Establishments in the Relevant        Locality?

 

Paragraph 12(3) (c) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 and paragraph 12.4 c and 12.5 - 9 policy.

The Council has currently resolved not to determine localities and appropriate numbers of establishments in advance of applications being received. It will consider each application on its merits and determine the locality and appropriate number for all, or the relevant type of premises, at the time of deciding on the application.

 

At a licensing Committee meeting on 22, March2012 an application for Players, an SEV, at 57, High Street, Maidstone was considered. These premises were already in operation as a lap and pole dancing venue covered by the Licensing Act 2003 premise licence until 30, April 2011. Members at that meeting considered the relevant locality and how many sex establishments or SEVs would be appropriate, if any. They considered the relevant locality to be the High Street area between Mill Street and the bridge area, (Bishops Way/Fairmeadow). An appropriate number of one was set for sexual entertainment venues for that locality at that time.

At the hearing on 22 October 2012 a relevant locality will be determined for the premises at 87-88 Bank Street and an appropriate number, if any, sexual establishments appropriate for that locality set. That decision will be relevant to consideration of this application.

 

In considering this application the relevant locality has been considered at paragraph 1.3.21and 1.3.22 which may or may not include the locality considered above and should take into account all the circumstances at the time of this decision. The number considered appropriate, if any, at the time of this decision may be for all sex establishments or only SEVs taking into account all the circumstances at this time.

 

1.4    Conclusions and Options.

 

             Members should consider all the matters set out at paragraphs 1.3.10 – 1.3,14 of this report.

                               

1.4.1 In having regard to the Councils Sex Establishments Policy (attached as appendix H) the principle is that each application will be determined on its own merit.

 

                       A licence if granted would last for one year and is subject to renewal           annually.

 

             The Committee may:

 

·                     Grant the application as applied for with Standard Conditions, or

 

·                     Grant the application as applied for with Standard Conditions   and additional conditions, or

 

·                     Grant the application on varied terms, with or without additional        conditions.

 

·                     Refuse the application on one or more of the statutory    grounds.

            

1.4.2 Conditions.

 

              Under Paragraph 8 of Schedule 3 of the Act the Council may grant a                     Sex Establishment Licence on such terms and conditions and subject                     to any restrictions as may be specified and that these specific terms                             and conditions will be tailored for each individual premises.

            

1.4.3               The Council has approved a set of Standard Conditions which are      applicable to the type of licence that may be granted, unless, the    application has requested that one or more of the Standard Conditions        are removed or varied or if this appears to the Members to be necessary and proportionate in this particular case. This is a matter for the Committee to consider in their determination should they be minded to grant a licence. There has been a request from the applicant to make changes to standard condition 15, 19 & 26.

 

Standard Condition 15:
The premises should not advertise by means of cruising vehicles or use of any other form of solicitation to invite people on into the premises”.

Proposed Condition 15:
“The premises shall not advertise by means of cruising vehicles. There shall be no personal solicitation from the entrance or immediately outside of the premises to invite people on the public highway into the premises”.

Condition 15 Reasoning — The premises do not intend to advertise by means of cruising vehicles, nor is there any intention for any person at the premises or immediately outside the premises to solicit people to enter into the premises. However, the variation is sought because in its current form it would, for example, prevent a Director of the premises at a dinner party within his own home inviting guests to Tantric Blue as that would be a form of solicitation. There may also be occasion when the operator would look to distribute flyers and business cards.

 

Standard Condition 19:
‘No fastening of any description shall be fitted upon any booth or cubicle within the premises”.

Proposed Condition 19:
Within the area set aside for relevant entertainment, no fastening of any description shall be fitted upon any booth or cubicle”

 

 

Condition 19 Reasoning — In respect of this condition, on the face of it, it would also include w.c. facilities and therefore it is proposed to amend condition 19 so that it only relates to the area within which sex entertainment may be provided.

 

Standard Condition 26:
“At all times during the performance, performers shall have direct access to a dressing room without passing through or in close proximity to the audience”.

Proposed Condition 26:
‘After performing on the stage, dancers shall get dressed before leaving the stage area”.

 

 

Condition 26 Reasoning - Condition 26 concerns access to a dressing room. A dressing room is provided for the use of performers and it is located on the first floor. The dressing room is a secure area and is of sufficient size to provide facilities for performers attending the premises. The performances on stage will not be fully nude and at the end of the performance there is a space to the side of the stage where the performer may dress. In relation to private dancers, after the performance the dancer will dress where she is before accompanying a customer back to the main entertainment area.

             There will be an opportunity at the hearing for all parties to make representations about possible conditions and the amended conditions should the licence be granted. This does not indicate that a licence will be granted.

 

              If Members are minded to approve the application I can confirm that I have no objection to the proposed amended conditions and accept the reasoning behind them. I would also wish to recommend the addition of conditions relating to security, set out in the standard conditions pool of possible additional conditions, as detailed below:-

 

            

Security

 

Condition b

 
Door supervisors, registered in accordance with the Security Industry Authority (SIA) shall be on duty at all times when relevant entertainment is taking place.

 

 

Condition c

 

An adequate number of door supervisors shall be on duty on the premises whilst relevant entertainment takes place.

Condition d

 

CCTV to be installed to a standard agreed by Police to cover all public areas, including all access and egress points in accordance with CCTV Code of Practice. Maintained and serviced on a regular basis and records to be kept. The system to have an incorporated recording facility and recordings to be stored for one calendar month. The CCTV system to be fully operational throughout the hours that the premises are open for licensable activity. Access of the recordings to be made available at any reasonable time to Police and Local Authority officers upon request. Staff will be fully trained in the CCTV system and there will be at least one member of staff on duty during trading hours who is able to provide a recording of any incident in a format that can be taken away to be viewed.

 

 

 

1.4.4 Policy- Locality and Numbers.

 

         Many of the late objections received request that the authority consider changing its current policy and decide that the number of SEVs in Maidstone should be nil. Should the Committee exercise its discretion to admit these then the following should be considered. The current policy is set out at 12.9 of the statement of policy and indicates that the Licensing Authority has not determined specific relevant localities and will judge each application on its own individual merits and the character of the locality at the time of the decision. This means that the authority will consider the relevant locality of the application at the time of the decision and decide what is the appropriate number for that area of that type or all sex establishments. That locality is flexible and something on which submissions can be heard. It may be a large area but case law has held that a whole town may be too large. There does not have to be a clearly pre defined area or precise boundaries. The number may be nil.

 

         An authority may publish a policy but that cannot prevent any individual application from being considered on its merits at the time of the decision, when submissions can be made by all parties. Thus a policy predetermining localities and numbers would have to be reviewed on each application, in any event, and the circumstances of any area may change over time. Any major change to policy should be subject to consultation should members wish to give consideration to changing the policy made, following consultation, in 2011. My recommendation is that members retain their current policy, avoid raising expectations for future decisions which may not be possible to follow at that time and keep the flexibility of deciding on locality and appropriate numbers at the time of individual decisions on any application. The policy currently in place would remain applicable to applications already received.

 

1.4.5 Appeals.

         A statutory right of appeal against any decision to refuse in this case, or to impose conditions, is given to the applicant, in respect of mandatory grounds of refusal only on the basis that the ground does not apply to the applicant and in respect of discretionary grounds in paragraph 12 (3) (a) and (b), (suitability of applicant, manager and beneficiary of the operation). This is to the Magistrates’ Court, by way of complaint for an order, within 21days beginning with the date the decision is notified. There is no right for other parties to appeal in this way but they can apply to the Court to be heard at any appeal. In respect refusal for grounds under paragraph 12 (3) (c) and (d) (i) – (iii) these rights do not apply. Any other appeal would be by way of judicial review.

 

1.5        Alternative Action and why not Recommended

 

1.5.1   The only alternative would be to fail to consider an application made and failure to determine this application would be likely to result in legal challenge.

 

1.6        Impact on Corporate Objectives

 

1.6.1   Arriving at a carefully considered decision meets the Councils           objective of corporate and customer excellence

 

1.7        Risk Management

 

1.7.1 The amendments to the legislation were introduced in order to regulate

          premises offering sexual entertainment. The Committee are to

          consider the application and decide whether or not to grant the         licence. The Committee must have regard to all matters set out at paragraphs at paragraphs 1.3.9 – 1.3.14 and must carefully consider the applicant’s rights balanced against the public interest. The only grounds on which a licence can be refused are set out in legislation.

 

1.8        Other Implications

 

 

1.      Financial	x
1.           Staffing
2.           Legal	x
3.           Equality Impact Needs Assessment	x
4.           Environmental/Sustainable Development
5.           Community Safety	x
6.           Human Rights Act	x
7.           Procurement
8.           Asset Management

 

 

1.8.1   Financial – The appropriate application fee has been paid in accordance with the Council’s fees and charges.

 

1.8.2   Legal – The relevant legislation is the Local Government (Miscellaneous Provisions) Act 1982, Schedule 3, as amended. Considerations are as set out in the report.

 

1.8.3    Equality Impact Assessment - The Equality Act 2010, Section 149 requires public authorities in the exercise of their functions to have due regard to the need to eliminate discrimination, harassment and victimisation, to advance equality of opportunity between the sexes and foster good relations between them.  Consideration of this may inform Conditions.  This duty also covers religious belief and disability. An assessment was made at the time at the time of the adoption of the Policy.

 

1.8.4   Community Safety - Section 17 of the Crime and Disorder Act 1998 gives authorities a duty to have regard to the likely effect of the exercise of their functions on the need to do all they reasonably can to prevent, crime and disorder.

 

1.8.5   Human Rights - The Human Rights Act 1998 should be taken into consideration when reaching a decision.  The rights potentially engaged are:-

Art 10 – right to freedom of expression – the right to expression through sexual entertainment or sex articles may be included.  The right is a qualified one and may be subject to conditions and restrictions as are necessary, in the interests of public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights or others etc.

Art 1, First Protocol – peaceful enjoyment of possessions.  Possessions may include a premises, goodwill of a business and the benefits of an existing licence.  There may be removal of possessions if the law provides for it and it is in the public interest.

 

Article 6 – That in the determination of civil rights and obligations

everyone is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by law.

The Licensing Authority taking a decision need to demonstrate that these rights have been taken into account and formed part of the factors balanced in making the decision.

 

 

 

 

 

 

1.9        Relevant Documents

Appendix A  Application form

Appendix B  Operation and background supporting documentation     including advertising example

Appendix C  Applicants site notice and newspaper notice

            Appendix D  representations from objectors.

            Appendix E  Schedule 3 Local Government (Miscellaneous Provisions)                             Act 1982, as amended by Policing and Crime Act 2009                Appendix F   Sex Establishments Policy           

            Appendix G  Home Office – Sexual Entertainment Licence – Guidance for                                               England  and Wales.          

            Appendix H               Copy of Premises Licence

Appendix I   Plan of the Area showing conservation area and listed buildings & normal plan of the area

Appendix J    MBC Standard conditions

           Appendix L  Hearing Procedure

 

 

 

 

 

IS THIS A KEY DECISION REPORT?   Yes                                               No     If yes, when did it first appear in the Forward Plan?   …………………………………………………………………………………………………………………………..     This is a Key Decision because: ………………………………………………………………………..   …………………………………………………………………………………………………………………………….       Wards/Parishes affected: …………………………………………………………………………………..   ……………………………………………………………………………………………………………………………..