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Agenda Item No:
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Licence Reference |
20/01813/LAPRE
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Report To:
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Licensing SUB – Committee (UNDER THE LICENSING ACT 2003) |
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Date:
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21st September 2020 |
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Report Title:
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GERMAN DONNER KEBAB, 79-85 WEEK STREET, MAIDSTONE, KENT, ME14 1QX
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Report Author:
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Lorraine Neale
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Summary:
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1. The Applicant – KDG Maidstone Ltd 2. Type of authorisation applied for: A premises licence under the Licensing Act 2003. 3. Proposed Licensable Activities and hours:
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Affected Wards:
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HIGH STREET |
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Recommendations:
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The Committee is asked to determine the application and decide whether to grant the premises licence.
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Policy Overview: |
The decision should be made with regard to the Secretary of State's Guidance and the Council's Statement of Licensing Policy under the Licensing Act 2003. Where the decision departs from Policy or Guidance the departure must be directed solely at the attainment of the licensing objectives, and that such departure be supported by proper reasons.
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Financial Implications:
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Costs associated with processing the
application are taken from licensing fee income. |
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Other Material Implications:
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HUMAN RIGHTS: In considering this application it is appropriate to consider the rights of both the applicant and other parties, such as “responsible authorities” and\or “other persons” (objectors). The procedure for determining licences has a prescribed format to ensure fair representation of the relevant facts by all parties.
LEGAL: Under the Licensing Act 2003 the Licensing
Authority has a duty to exercise licensing control of relevant premises. |
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Background Papers:
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Licensing Act 2003 DCMS Guidance Documents issued under section 182 of the Licensing Act 2003 as amended Maidstone Borough Council Statement of Licensing Policy
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Contacts:
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Mrs Lorraine Neale at: lorraineneale@maidstone.gov.uk – tel: 01622 602528 |
Agenda Item No. 1
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Report Title:
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GERMAN DONNER KEBAB, 79-85 WEEK STREET, MAIDSTONE, KENT, ME14 1QX
Application: For a premises licence under the Licensing Act 2003. (Appendix 1).
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Purpose of the Report
This section should be brief and should summarise the reason for the report and the issue it is addressing .
The report advises Members of an application for a Premises Licence to be granted under the Licensing Act 2003 (Appendix 1), made by KDG Maidstone Ltd, in respect of the premises German Donner Kebab, 79-85 Week Street, Maidstone, Kent, ME14 1QX (Appendix 2 ) in respect of which 1 objection has been received from other parties (Appendix 5).
Issue to be Decided
The purpose of this section is to enable all Members to recognise immediately what they are being asked to consider.
Members are asked to determine whether to :
1) grant as applied for
2) grant with conditions
3) exclude any licensable activity
4) reject the DPS
5) or reject the application.
2 The relevant sections are Part 3 S16 -24 of The Licensing Act 2003 and section 4 of The Licensing Act 2003 in particular the Licensing Objectives:
· The prevention of crime and disorder;
· Public Safety
· The prevention of public nuisance; and
· The protection of children from harm
3. The application has been correctly advertised in the local press and notices displayed at the premises for the required period.
4. There was one representation received from a responsible authority which was the Police, who requested that the applicant amend the operating schedule to include certain conditions, the applicant agreed and the objection was withdrawn, (Appendix 3 & 4)
5. There is 1 representation from other parties (Appendix 5).
6. The table below illustrates the relevant representations which have been received
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Responsible Authority /Other Party |
Licensing Objective |
Associated Documents |
Appendix |
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Miss Lisa Postiglione |
Crime & Disorder Public Safety Public Nuisance Children from Harm
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5 |
There appear to be concerns that the late night/early morning operating hours of the premises will encourage members of the public who are already intoxicated to gather in an area which already experiences levels of antisocial behaviour and which in turn will exacerbate the already existing problems of crime and disorder, public safety, public nuisance and children from harm.
7. Members are advised that applications cannot be refused in whole or in part, or conditions attached to the licence unless it is appropriate to do so to promote the licensing objectives.;
8.
The
Operating Schedule submitted by the Applicant has addressed the licensing
objectives in the following manner:
a) General – all four licensing objectives:
The store is a franchise of the worldwide German Donner Kebab (GDK) chain. GDK has been in business for more than 40 years and during that time, has developed a system of business which involves dine in and home delivery services. We are governed by the rigorous standards set out in the GDK Franchise Agreement and these relate to all aspects of operating the business, from the preparation of ingredients right through to the manner in which the product is handed to our customers. We are mindful of our obligations to our staff, our customers, and others (e.g. local residents) who may be affected by the operation of our business. Our store is adequately staffed so as to allow the proper management of the premises and supervision of those who visit them. The GDK system does not allow the sale of alcohol.
b) The prevention of crime and disorder:
We will actively co-operate with the local police to ensure that we are made aware of particular problems which affect the area and which may potentially affect our store.
We will not countenance the use or supply of illegal drugs and our staff will inform the police immediately of any such suspected activity on or in the vicinity of the store.
Our employment policies are designed to ensure we recruit professional and reputable staff.
We do not use or supply glassware.
c) Public Safety:
The premises comply with all requisite health and safety legislation.
We carry out regular health and safety risk assessments and are required to do so under the terms of our Franchise Agreement.
In the most unlikely event that a greater number of people congregate in the premises than is conducive to public safety, we will not hesitate to ask people to leave the store and we will always encourage them to take advantage of our home delivery service.
d) The prevention of public nuisance:
Our doors and windows will be kept closed at night to prevent transmission of noise. Our stores have few customers who visit to buy our product to take away, but those who do visit will be asked to leave the
premises quietly and with due consideration for our neighbours. Music will not be played in the premises. Our delivery drivers are instructed to enter and leave their vehicles quietly and considerately, not to leave
engines running, to park considerately, and at all times to have in mind our neighbours. We would have no hesitation in banning people who visit the store and regularly leave the premises in a noisy fashion. Our equipment is properly sound insulated and operated strictly in accordance with manufacturers' requirements, guide lines and tolerances. All our air extraction system complies with Building Regulations requirements and is designed to ensure that there is no escape of cooking smells to neighbouring premises. We neither use nor supply glassware.
e) The Protection of children from harm:
Our store is not licensed for the sale of alcohol.
Because of the nature of the licence for which we are applying and the nature of our business generally, it is most unlikely that a child unaccompanied by an adult would visit our store during the hours for which we are licensed.
9. Relevant sections of The Guidance issued under section 182 of The Licensing Act 2003;
Chapters 8 & 9 Premises Licences & Determining Applications
Chapter 10 Conditions NB: There is Home Office Supporting Guidance on Pools of Conditions
but this is not statutory guidance.
Relevant policy statements contained in the Licensing Authority’s Statement of Licensing Policy:
17.9 – 17-15 Crime & Disorder
17.16 – 17.18 Public Safety
17.19 - 17.22 Public Nuisance
17.23 – 17.26 Protection of Children from Harm.
17.9 CONDITIONS TO PROMOTE THE PREVENTION OF CRIME AND DISORDER.
Under the Act the Licensing Authority has a duty to promote the licensing objectives, and, a further duty under the Crime and Disorder Act 1998 to do all it reasonably can to prevent crime and disorder in the borough.
17.10 The applicant will be expected to detail in their operating schedule how they will prevent crime and disorder on and close to the premises. Such detail should reflect the licensable activities on offer, location and character of the area, the nature of the premises use and the range of customers likely to use the premises.
These may include, but are not limited to, the following:
• Prevention of disorderly conduct and anti-social behaviour
• Prevention of underage drinking
• Prevention of sales of alcohol to intoxicated customers
• Prevention of drunkenness both on and in the vicinity of the premises
• Prevention of drug use and drug dealing
• Restriction to responsible drinks promotions
• Use of safety glass
• Inclusion of a wind-down time following alcohol sales period
• Adequate seating to discourage “vertical drinking”
• The offer of food and snacks or other entertainment or occupation to discourage persistent drinking
17.11 In busier premises the Licensing Authority would usually expect to see a short (e.g.30 mins) ‘wind down’ or ‘drinking up’ period allowed for after the cessation time of entertainment and alcohol sales as this is effective in assisting in a reduction in noise and exuberance of customers before leaving the premises.
17.12 Applicants will be expected to seek advice from the Police and the Licensing Authority will give appropriate weight to requests by the Police for premises to be protected by SIA registered door staff subject to the provision of relevant evidence. Where the Licensing Authority determines after consultation with the police that a premises is one that warrants additional security and monitoring it would expect applicants to include the provision of SIA approved door staff at the premises at appropriate times. Relevant premises are usually those used mainly for drinking alcohol, have later opening hours and are situated within the Town Centre night time economy area.
17.13 Where appropriate, applicants for licences in the Town Centre areas providing mainly alcohol, music and dancing would be expected to consider inclusion of a provision of safety glasses to prevent a risk of injury on the rare occasion that a glass may be used as a weapon.
17.14 The use of CCTV should be considered where appropriate or on the advice and recommendations of the Police and to a quality and standard approved by the Police for evidential purposes. Licensees will be expected to fully comply with the requirements of the Information Commissioners Office and the Data Protection Act 1998 in respect of any surveillance equipment installed at a premises.
17.15 In any application resulting in hearing the sub-committee will consider each application on its individual merits and determine the imposition of conditions that are appropriate to promotion of the licensing objectives.
17.16 CONDITIONS TO PROMOTE PUBLIC SAFETY.
The applicant will be expected to show how the physical safety of persons attending the premises will be protected and to offer any appropriate steps in the operating schedule to promote this.
17.17 Such steps will not replace the statutory obligation on the applicant to comply with all relevant legislation under the Health and Safety at Work etc. Act 1973 or under the Regulatory Reform (Fire Safety) Order 2004.
17.18 Applicants will be expected to have carried out the necessary risk assessments to ensure safe occupancy levels for the premises. Where a representation from the Fire Authority suggests that for the promotion of the Public Safety objective a maximum occupancy should be applied, the Licensing Authority will consider adding such a limit as a licence condition.
Where appropriate an operating schedule should specify occupancy limits for the following types of licensed premises:
(i) High Volume Vertical Drinking e.g. premises that provide mainly stand up drinking facilities with limited seating/table space and the primary activity is the sale of alcohol
(ii) Nightclubs
(iii) Cinemas
(iv) Theatres
(v) Other premises where regulated entertainment is likely to attract a large number of people.
(vi) Where conditions of occupancy have arisen due to representations received.
17.19 CONDITIONS TO PROMOTE THE PREVENTION OF PUBLIC NUISANCE.
The applicant will be expected to detail any appropriate and proportionate steps to prevent nuisance and disturbance arising from the licensable activities at the premises and from the customers using the premises.
17.20 The applicant will be expected to demonstrate that they have considered the following and included steps to prevent public nuisance:
(i) Proximity of local residents to the premises
(ii) Licensable activities proposed and customer base
(iii) Hours and nature of operation
(iv) Risk and Prevention of noise leakage from the premises from equipment, customers and machinery
(v) Prevention of noise from customers leaving the premises and customer pick up points outside premises and from the Car Park.
(vi) Availability of public transport to and from the premises
(vii) Delivery and collection times and locations.
(viii) Impact of external security or general lighting on residents.
(ix) History of management of and complaints about the premises.
(x) Applicant’s previous success in preventing Public Nuisance.
(xi) Outcomes of discussions with the relevant Responsible Authorities.
(xii) Impact of location, noise and contamination from outside smoking areas on neighbours and other customers
(xiii) Collection of litter arising from the premises
17.21 Steps to prevent public nuisance may include a range of options including noise limiting devices, sound insulation, wind down periods, acoustic lobbies, management of smoking areas etc.
17.22 Steps will differ depending on the individual premises and activities and it is for the applicant to ensure that reasonable, effective and appropriate steps are included within the operating schedule.
17.23 CONDITIONS TO PROMOTE THE PROTECTION OF CHILDREN FROM HARM.
Applicants will be expected to detail any appropriate and proportionate steps to protect children at the premises from any harm. The Licensing Authority recognises the right of licensees (serving alcohol) to allow accompanied children into their premises. The Licensing Authority would not seek to restrict access by children (above that specified in the Act) unless it is necessary for the prevention of physical, moral or psychological harm.
17.24 Steps to protect children from harm must be carefully considered for inclusion where:
(i) There is entertainment or services of an adult nature provided.
(ii) There have been previous convictions for under age sales of alcohol.
(iii) There has been a known association with drug taking or dealing.
(iv) There is a significant element of gambling on the premises.
(v) There is a presumption that children under 18 should not be permitted entry such as to nightclubs (apart from when specific events are held for under 18’s).
(vi) Outcomes of discussions with relevant Responsible Authorities suggest such steps are applicable.
17.25 Nothing in the Licensing Act prevents licensees from excluding children from a licensed premises and no condition can be added to require the admission of children.
17.26 Where there are no matters that give rise to concern in respect of children at premises the Licensing Authority would expect to see the relevant box on an application form completed to specify NONE.
10.
Options
Legal options open to members -
1. Grant the licence subject to conditions as are consistent with the operating schedule accompanying the application.
2. Grant the licence with modified conditions
3. Exclude a licensable activity
4. Refuse to specify the DPS
5. REJECT the whole or part of the application
Members of the Licensing Act 2003 – Licensing Sub –
Committee are reminded of their duty under section 17 of the Crime and Disorder
Act 1998 to consider the crime and disorder implications of their decisions and
the Licensing Authority’s responsibility to co – operate in the reduction of crime
and disorder in the Borough
Section 17 of the Crime and Disorder Act 1988 states:
"Without prejudice to any other obligation imposed on it, it shall be the
duty of each authority to which this section applies to exercise its various
functions with due regard to the likely effect of the exercise of those
function on, and the need to do all that it reasonably can prevent, crime and
disorder in its area”.
11.
Implications
Assessment
The decision should
be made with regard to the Secretary of State’s Guidance and the Council’s
Statement of Licensing Policy under the Licensing Act 2003. Where the decision
departs from either the Guidance or the policy clear and cogent reasons must be
given. Members should be aware that if such a departure is made the risk of
appeal/challenge is increased.
12.
Human Rights
While all Convention
Rights must be considered, those which are of particular relevance to the
application are:
· Article 8 – Right to respect for private and family life
· Article 1 of the First Protocol – Protection of Property
· Article 6(1) – Right to Fair Hearing
· Article 10 – Freedom of Expression
The full text of each Article is given in the attached Appendices
13.
Conclusion
Members must ensure
that the application is considered on its merits, as well as against the
relevant guidance, policy and statutory framework.
14.
List of Appendices
15.
Appendix 1 Application
Form
Appendix 2 Plan of Premises
Appendix 3 Representations – Police
Appendix 4 Applicants agreement & Police withdrawal of reps
Appendix 5 Other parties representation
Appendix 6 Plan of area
Appendix 7 Human
Rights Articles
Appendix 8 Order of Proceedings
15.
Appeals
The applicant or any other person(objector) may appeal the Licensing Act 2003
Sub Committee’s decision within 21 days beginning with the day on which the
Appellant is notified. All/any appeals must be lodged with the Magistrates’
Court. Parties should be aware that they MAY incur an Adverse Costs Order
should they bring an appeal.
Use sub-paragraph headings to identify these issues and tables to summarise any financial implications where this will aid understanding.
Refer to any implications for current council polices particularly if the report suggests a change in policy or a new approach to an issue.
Report authors will be expected to have taken advice from the appropriate people and to agree the wording of implications with those advisors.
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Contact: Email:
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Senior Licensing Officer |