Purpose

Application for a Review under the Licensing
Act 2003

Content

Licensing panel
hearing held virtually via Teams on Wednesday 19th June 2024 and
Monday 15th July 2024 in respect of a review of the premises
licence for Persia, 126 Church Road, Hove BN3 2EA
 
The panel has considered this application for
review along with the supporting representations, statements and
documentary evidence produced by the Licence holder. The panel has
listened carefully to all the submissions made at the hearing. The
panel has had regard to the S182 Guidance and the Council’s
Statement of Licensing Policy. The review is applied for by Sussex
Police. The review is brought on the basis
of the prevention of crime and disorder, public safety and
the protection of children from harm licensing objectives. On a
joint licensing inspection visit on the 19th April 2024, police officers witnessed a staff
member altering training records at the alleged direction of the
premises licence holder to ensure compliance with the training
condition on the licence. The police say that the act of falsifying
the records is sufficiently serious to bypass the usual stepped
approach in relation to reviews, has led to a loss of trust in the
licence holder to promote the licensing objectives and that
therefore
revocation is the appropriate step. Full
details of the incident are in the papers before us including
statements from the officers concerned. The police also include an
incident in April 2023 when officers met with resistance to provide
CCTV in relation to a sexual assault. Three representations
supporting the review have been made by the Licensing Authority,
Planning Enforcement and Immigration Enforcement.
 
At the hearing in private session, the police
showed 3 excerpts of body worn video which the police filmed during
the incident of training record alteration. The altered record is
in the papers. It was asserted that the member of staff
tipp-exed out the reference to 2023 on
the paper as she was told it all had to be 2024. Training is hugely
important and the police considered that
training was not being carried out and upon questioning the licence
holder could not say how many staff he employed.
 
The Immigration enforcement officer detailed
the 2 visits (2021 and 2023) to the premises during which they
found what they considered to be illegal working when they
encountered persons (asylum seekers) without the right to work in
the kitchen apparently working with food debris on them. The
explanation given was that they were there to eat not work. No
formal enforcement action was taken as there was not sufficient
evidence of control, obligation and remuneration to apply the civil
penalty, but in the opinion of the officer, employment of illegal
workers was taking place and right to work checks had not been
carried out. The planning enforcement officer described her
involvement with the premises in terms of the unauthorised planning
works that were carried out to the first floor. There had been
complaints from neighbouring properties about the works and Shisha
lounge which had subsequently been set up. The premises licence
holder was unsuccessful in his planning appeal and an enforcement
notice was being prepared breach of which would be a criminal
offence.
 
It was acknowledged that planning and
licensing were separate regimes but the
officer supported the police review as it was considered that the
involvement of planning illustrated the propensity of the licence
holder not to
follow proper procedures or advice and there
was a public nuisance element in the complaints received.
 
The officer on behalf of the licensing
authority detailed her involvement and concerns about the Shisha
bar and incident on the 19th April. She
fully supported the police request for revocation of the
licence.
 
On behalf of the licence holder, his barrister
strongly refuted the allegations made and the application to revoke
the licence. In the papers were statements from the premises
licence holder and staff explaining their version of events and
disputing especially the deliberate falsifying of records and
employment of illegal workers. A supporting email from the vice
chairman of the Brighton & Hove Muslim Forum stated that this
premises was part of a community program to provide meals to
refugees and others in need. It was submitted that the licensing
objectives were not being breached and no harm or detriment could
be shown; this was not a problem premises. The staff were trained
and had made statements confirming this. Staff numbers changed
throughout the year so it was difficult
to say exactly who was working there. Much of what was stated was
speculation and interpretation. Revocation should not be based on
one incident and the normal stepped approach should not have been
bypassed.
 
Legal submissions were made about the
relevance of planning considerations and unsubstantiated
allegations from Immigration Enforcement which it was contended
should not be taken into account or
given little weight in deciding what action to take. The CCTV
incident was over a year ago during which time no further incidents
and was open to different interpretation and explanation.
 
The panel was invited to dismiss the
application to revoke the licence.
 
The panel must take such statutory steps under
the Licensing Act 2003 in response to the review as are appropriate
to promote the licensing objectives. The panel has also considered
the Council’s Statement of Licensing Policy and enforcement
approach and the S182 Statutory Guidance in relation to reviews and
reviews arising in connection with crime. The panel has considered
all the options open to it. The S182 guidance emphasises that
remedial action should always be no more than an appropriate and
proportionate response to address the causes of concern that
instigated the review.
 
This has been a very difficult case for the
panel to assess and ascertain the relevant facts as there are
differing versions and interpretations of events often forcefully
put forward. The panel takes very seriously the concerns and
evidence presented to us by the police. Training of staff is of
crucial importance and the condition on the licence reinforces this
and thus proper keeping of records is key.
 
It does seem likely to us on a balance of
probabilities that the records were falsified deliberately to make
up for poor record keeping but we accept that there is an element
of uncertainty surrounding precise motive. The panel does not
dismiss as legally irrelevant the representations of planning and
immigration enforcement.
 
These are both Responsible Authorities under
the Licensing Act, they are supporting the review and therefore
their concerns must be
taken seriously. Immigration can impact
directly on licensing as illegal working is clearly relevant to the
prevention of crime and disorder objective. In this case there was
not the evidence to establish that illegal employment was
definitely taking place though this was
what officers suspected.
 
Although planning is a separate regime, the
relevance for us here lies in the apparent disregard of the licence
holder for proper processes. Advice given was not followed. The
licence holder has now stated that the Shisha lounge will no longer
operate and it is to be hoped that
formal planning enforcement action will not be necessary. With both
representations also at issue is the credibility
of the licence holder. The steps the panel
takes must however be rooted in the licensing objectives and be
proportionate.
 
The panel has seriously considered revocation
of the licence. The licensing objectives are clearly undermined by
poor record keeping and thus inability to establish that training
has been carried out. The credibility of and trust in the licence
holder is at issue in relation to this and the alleged employment
of illegal workers. However, the panel is not convinced that
revocation of the licence
is proportionate or the most effective option
in this case.
 
The panel believes that a short period of
suspension is however appropriate to mark the seriousness of the
concerns which have been expressed in this review, to act as a
deterrent and give the licence holder the opportunity to
ensure that measures are in place as detailed
below. The panel thus imposes a 14-day period of suspension which
will take effect at the end of the 21-day period for appeal unless
an appeal is lodged.
 
Furthermore, the panel considers it is
appropriate to ensure the licence holder is
able to demonstrate compliance with the licence conditions
and objectives.
 
In terms of the training and staff issue, the
panel attaches the following additional condition to the licence as
follows:
 
Staff training records (as detailed
in condition 9 on the licence) shall be submitted to the Licensing
Authority every 8 weeks (by email) along with a list of
current staff working at the premises.
 
The panel believes this condition is necessary
in light of what has happened so that
there is clear focus on record keeping and training of all new and
existing staff.
 
 
 
The panel is concerned about the apparent
absence of the Designated Premises Supervisor (DPS) in this
case.
 
Both in the S182 guidance and in our policy at
4.1.2 it is expected that the DPS will be in effective day to day
management of the premises and contactable should problems arise.
The appointment of the separate DPS is relatively new but the panel
expects that going forward that person will take a more active role
especially in relation to record keeping and staff employment.
 
In terms of the Immigration Enforcement
concerns the panel believes action is necessary by the licence
holder to prevent any further intervention or suspicion on the part
of Immigration enforcement (if they should revisit the
premises).
 
A clear policy and protocol should be put in
place and documented to explain how the premises are participating
in the stated community initiative to provide meals to asylum
seekers and other persons in need. This should include provision of
an appropriate space in which to eat other than the kitchen and a
space in which to pray if necessary
which should not be in the kitchen.
 
If such a protocol is in place then a repeat of the circumstances of those
visits should be avoided and the crime prevention objective
promoted. This is not imposed as a formal condition but a strong
advisory.
 
Finally, but of upmost importance, the panel
is mindful that this is a first formal review intervention so is
issuing a clear warning or ‘yellow card’. Should a
further review of this premises licence come before us the
consequences would be extremely serious and would give rise to a
presumption of revocation of the licence.
 
In summary the steps taken are:
1. 14-day suspension of the premises
licence.
2. Modification of conditions to include the
new training record condition as above.
3. Strong advisory about the need for a
protocol for meals for asylum seekers.
 
Please note: This determination does
not take effect until the end of the period given below for
appealing against the decision or, if the decision is appealed
against, the time the appeal is disposed of. The minutes of the
panel will be available on the Council’s website under the
rubric ‘your Council’.
 
Appeal Rights
(Section 181 and schedule 5 of the Licensing
Act 2003)
1. The licence holder may appeal against the
decision to modify conditions and suspend the licence
2. The applicant for review may appeal against
the decision made
All appeals must be made to Magistrate’s
Court, Edward Street, Brighton, within 21 days of deemed delivery
of this letter. Delivery will be deemed to have been effected on the second working day
after posting.