Agenda item

The licensing officer reported that the licence holder was transferred onto the licence in May 2017.  The licensee attended an officer panel on 25 September 2018 following an underage sale. Following a sale after permitted hours the licence holder attended a further officer panel in November 2018.  A compliance check was then carried out on the 25 October 2019 where there was found to be breaches of the licence conditions.  The Sub-Committee noted that a representation from the local councillor had not been printed in the agenda.  This email outlined support for the review and the proposed actions.

The trading standards officer reported that, following intelligence received, trading standards officers and the police found illicit tobacco hidden on the premises.  A significant amount was found, some being counterfeit and some illegally labelled. This was considered to be a deliberate act and not due to negligence.

In response to questions it was noted that, on the day of the search, there were three adults in the premises and a member of staff declined to provide their name. The licence holder was present at the time.

The licensing authority referred to her representation on pages 128/129 of the agenda and referred to the compliance visit. At the compliance visit on the 25 October it was stated that there were four conditions that had not been complied with, which included no incident book, CCTV had not been checked and high strength Polish alcohol was for sale. There had been an officer panel on the 25 September 2018, following a failed Challenge 25 test purchase, and additional licence conditions were agreed. There had been a further officer panel on the 1 November when alcohol was sold after hours. This premises had a significant history of non-compliance and there had been no response from the licence holder since the review had been submitted and revocation was deemed appropriate in this case.

The licence holder, through an interpreter who as a family member, stated that a family member had stated that the tobacco was for personal use. The person who would not give their name was intending to buy the premises and wanted to look at the shop.  The letters handed in on the 12 August were handed to a male working behind the counter and the licensee was not aware of this.  She stated that she would not allow anything illegal in the premises.

In response to questions about training it was noted that the licence holder held a personal licence and her husband had always worked in shops so had this experience.  The licence holder was on holiday during August and September so had not responded to letters. It was stated that the uncle would have called in and told officers that she was not in the country.

In response to questions, the licence holder said that she remembered the compliance visit. She had been informed that items had still been outstanding but she thought if she did everything she would be fine.  The Sub-Committee noted that there had previously been two officer panels. The licence holder stated that she would try her best after this.

In summary, the trading standards officer stated that it was not usual to find a small amount behind the counter and a larger amount further away if the tobacco was only to be for personal use.  Tobacco should be kept at home if only for personal use.

The licensing authority stated that the licence holder had always spoken English well at the officer panels.

The licence holder stated that she would not do anything illegal again.

RESOLVED

That the licence in respect of Kale Food and Wine, 169 Hornsey Road, N7 6RE be revoked.

REASONS FOR DECISION

The Sub-Committee listened to all the evidence and submissions and read all the material. The Sub-Committee reached the decision having given consideration to the Licensing Act 2003, as amended, and its regulations, the national guidance and the Council’s Licensing Policy

The Sub-Committee noted that on the 17 April 2019, Trading Standards, as part of an illicit tobacco operation found a significant quantity of illicit cigarettes on the premises. The licensee was invited to a PACE interview but failed to respond to this request.  Trading Standards submitted that there was an element of dishonesty in relation to this incident as the licensee couldn’t have accidentally had tobacco hidden behind the counter.

The Sub-Committee noted that there had been other non-compliances at the premises and the licensee had attended two licensing officer panels for failure to challenge a person under 25 years of age when they bought alcohol and for selling alcohol after permitted hours. The Sub-Committee also noted that at the compliance visit on 25 October 2019 there were breaches of the licence conditions.  The Sub-Committee heard evidence from the licensing authority that there had been no response or interaction from the licensee.

The Sub-Committee heard evidence from the licensee that the cigarettes were not hers and were for the personal use of her family member. The licensee recalled the compliance visit on the 25 October 2019 and that she was trying her best. 

The Sub-Committee considered paragraphs 11.27 and 11.28 of the Home Office revised guidance.  The Sub-Committee noted that the sale or storage of smuggled tobacco was a criminal activity to be treated particularly seriously on review. The guidance set out that revocation of the licence should be seriously considered and that review procedures should be used effectively to deter such criminal activity.

The Sub-Committee took into account Licensing Policy 29 in relation to reviews, Licensing Policy 8 in relation to management standards and Licensing policy 28 stated that the local authority expected the licensee to implement appropriate measures including Challenge 25.

The Sub-Committee also took into account Licensing Policy 17 which set out that licensees should have arrangements in place to prevent the sale of illicit goods and where such arrangements were not in place appropriate sanctions for the promotion of the licensing objectives would be imposed. The Sub-Committee noted that the licensee had failed to demonstrate compliance with legal requirements regarding illicit goods and were not confident that the licensee would deliver her responsibilities under the Licensing Act 2003 and run her business lawfully.

The Sub-Committee also noted under Licensing Policy 17 that the sale of illicit goods, such as non-duty paid tobacco will be considered as evidence of poor management. Foreign tobacco should not be kept anywhere on the premises, except for one single pack for the legitimate personal use for members of staff, and quantities in excess of this will be deemed to be tobacco intended for sale to customers.

The Sub-Committee considered whether a suspension, would be appropriate both as a deterrent and to allow the licensee to implement improvements. However, the Sub-Committee concluded that a suspension would not ensure the promotion of the licensing objectives and in view of the history of the management of the premises and the failure of the licensee to engage with the responsible authorities and provide any credible plan of action, revocation was the appropriate and proportionate decision.