Decision of the Licensing Sub-Committee
30 October 2014
West 9 Food and Wine, 175 Ladbroke Grove, W10 6HJ (“the Premises”)
The Committee has considered an application for the review of a premises licence under
the Licensing Act 2003 (“the Act”).
The Committee has considered the committee papers and the submissions made by all of
the parties, both orally and in writing.
In reaching its decision the Committee has had regard to the relevant legislation, the
Secretary of State’s Guidance (“Guidance”) and the Authority’s Statement of Licensing
Policy (“SLP”).
In summary, the Committee has decided, after taking into account all of the individual
circumstances of this case that it is necessary for the promotion of the four licensing
objectives to revoke the premises licence.
Procedural Matters
1. The application to review the Premises Licence (“the licence”) was submitted by PC Ian
Davis for the Metropolitan Police on 9 September 2014. He was present at the hearing
and was represented by Counsel Mr Ranatunga. Supporting the review was Mr Douglas
Dickson, Senior Trading Standards Officer.
2. The Premises Licence Holders (“PLHs”) are Mr Nallanathan Anandankumariah and Mr
Sivarasa Thamilvanan. The Designated Premises Supervisor (“DPS”) is Mr Nallanathan
Anandankumariah. At the hearing Mr Anandankumariah was represented by Mr Dadds
of Dadds LLP and Mr Aylott also of Dadds LLP represented Mr Thamilvanan.
3. As well as the application to review the licence there were two additional applications for
determination by the Committee: (1) application to transfer a Premises Licence to Mr
Pusparasalengam Chenthooran and (2) to vary the Designated Premises Supervisor to
Mr Pusparasalengam Chenthooran. These applications were submitted on 23 September
2014. Mr Chenthooran was present at the hearing and confirmed at the start that he
was withdrawing both the applications and thereafter left.
4. The evidence before the Committee comprised of the Notice of Hearing (dispatched 15
October 2014), Supplementary Papers submitted on behalf of the PLHs (which is not for
publication due to containing personal data), bundle of Additional Papers (circulated on
27 October 2014), Witness Statement of Alan Aylott dated 29 October 2014, list of 27
proposed conditions submitted by Mr Aylott at the hearing (attached to this decision as
Appendix 1), and CRIS reports for the: 5 August 2014, 28 March 2014, 1 March 2014,
25
November
2013
and
7
October
2014.
Preliminary Issue
5. Mr Dadds asked for members of the public to be excluded from the hearing as permitted
under Regulation 14 of the Licensing Act (Hearings) Regulations 2005 because he was
mindful that the issues raised in this review may be subject to proceedings in another
forum or are
sub judice. He submitted that should there be other proceedings he did
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not want to prejudice them and
on this basis suggested that only the parties to the
review should remain, together with their legal advisors. PC Davis and Mr Dickson
confirmed that as far as they are aware their respective Authorities were not presently
taking any further action by way of prosecution proceedings. However, Mr Dickson
advised that he could not rule out Her Majesty’s Revenue and Customs (“HMRC”) taking
any legal action in view of the matters which emerged from the inspections (which will
be referred to further below). The Committee took note that the Notice of Hearing and
the Additional Papers had been published and placed in the public domain prior to the
hearing and before Mr Dadds made the request to exclude members of the public from
the hearing.
Decision on Preliminary Issue
The Committee, having due regard to the facts of the case, determined that the hearing
should exclude the public so that if there are other proceedings they would not be
prejudiced by the matters arising from the hearing. Insofar as this reasoned decision is
concerned, it will be published 21 days after it has been served on all the parties unless
the PLHs make submissions before the expiry of 21 days as to why they consider it
should not be placed in the public domain. Should submissions be made, a considered
decision will be taken by the Council on the availability of this document to the public.
Reasons
6. In making its decision the Committee has taken into account all relevant sections of its
SLP and the Guidance. The Committee considers the following paragraphs of the
Guidance and its SLP are particularly important but it should be emphasised this is not
an exhaustive list as the Committee has considered all relevant provisions of both
documents. Relevant paragraphs are: - 1.9, 1.11, 1.12, 1.16, 1.17, 1.19, 2.1 – 2.34,
9.12, 9.14 – 9.16, 9.22 – 9.26, 9.33 – 9.36, 10.10 – 10.13, 11.5 – 11.11, 11.24 –
11.28, 12.10, 13.10, 13.12 and 13.13 of the Guidance and paragraphs 2.1, 2.4, 2.7,
3.8, 6.1 – 6.3, 8.1, 8.2, 8.4, 12.4 – 12.8 of the SLP.
7. The Committee recognises that the proceedings set out in the Act for reviewing
premises licences represent a key protection for the community when problems
associated with crime and disorder, public safety, public nuisance or the protection of
children from harm are occurring. Representations must relate to the particular
premises in question and must be relevant to the promotion of the licensing objectives.
The Act provides the Licensing Authority with a range of powers on determining a
review that it may exercise where it considers them necessary for the promotion of the
licensing objectives. In deciding which of these powers to invoke, the Licensing
Authority should so far as possible seek to establish the cause or causes of the concerns
which the representations identify.
The remedial action taken should generally be
directed at these causes and should always be no more than a necessary,
appropriate and proportionate response.
8. The application for review is made on the grounds of the prevention of crime and
disorder, public safety and the prevention of public nuisance licensing objectives. The
Committee took note of the two pertinent matters directly linked to the premises: the
fact that they have persistently sold alcohol to street drinkers and obtained and stocked
for onward sale non-duty paid alcohol. The respective matters are addressed separately
below.
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9. The Police provided a significant amount of evidence which supported the contention
that the premises have been responsible for selling alcohol to the street drinkers which
congregate in the local area. The Committee, while being familiar with the locality, took
note of the Witness Statement of Police Community Support Officer (“PCSO”) Irene
Scott, located at pages 41 – 43 of the Notice of Hearing. Her statement provides very
useful background information in relation to the street drinkers which tend to frequent
Malton Mews, Portobello Green and Tavistock Piazza areas. The pertinent points which
emerge from PCSO Scott’s statement are that:
Over the last few years approximately 10 – 15 individuals loiter in and around the
area throughout the day.
This is an area which is frequented by commuters, shoppers and local residents.
The street drinkers tend to aggressively beg them for money and follow members
of the public down the road while doing so. They also sit by main doors and
ATMs of Sainsbury’s to beg. If members of the public ignore them or do not give
them money, they are verbally abused and often intimidated.
They are known to urinate, defecate and vomit in the area, which creates a
horrendous smell which in itself is of grave concern. Drug paraphernalia is often
left lying around and the street drinkers have been witnessed to have sex in the
public areas. Requests for them to move by shop owners have lead to
altercations.
These individuals have little respect for shop staff or the Police, swearing or
intimidating local community officers.
10.It was PC Davis’s considered opinion that the premises have continually sold high
strength beers and ciders to these local street drinkers. To corroborate this he
submitted a number of extracts of complaints from the public, PCSOs and police officers
that came from the Police’s Integrated Intelligence Platform. While the Committee took
note of all of these extracts, it found the following ones particularly relevant in
determining this matter as they link the sale of alcohol from the premises to the street
drinkers:
26.02.14 at 10:45: PCSOs observe three of the street drinkers loitering in the
area, one begging in front of Sainsbury’s. One of the street drinkers enters the
premises, at which point the officers go to West 9 and wait outside for him to
exit. When he does he has a carrier bag containing alcohol, namely one can of
Stella and two cans of Skol. When the staff member in the premises was
questioned as to why he sold the alcohol to one of the known street drinkers his
response was that “you lot need to ban them” and justified the sale by stating
that they did not want any trouble in the shop.
02.04.14: two PCSO officers dealt with a complaint from the “shop keeper” of
West 9 which involved two men that attended the premises the previous day, one
was intoxicated and purchased two bottles of White Ace Cider and wine and the
other took a bottle of wine without paying for it. The Committee took note of
the fact that the male was served alcohol while intoxicated, which the staff
member admitted, and this concerned the Committee gravely as it is aware that
this goes against the ethos of the Act. Interestingly the staff member also
admitted to selling alcohol to some of the street drinkers. The Committee was
also mindful that the officers warned both the “shop keeper and staff” about
selling alcohol to people who are intoxicated and to street drinkers and
questioned whether the shopkeeper is in fact one of the PLHs.
03.04.14: a joint visit of a number of premises in the area was carried out by
the Police (PC Davis was present) and the Council’s Licensing Enforcement
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Officers. West 9 were called on and the staff were given advice about the sale of
alcohol to street drinkers, how to be more robust in refusing sales to them, the
popular drinks favoured by street drinkers were identified and they were advised
to withdraw them from the stock.
19.06.14 at 14:16: PCSOs approached three known street drinkers who were
drinking alcohol from cans: Super Skol and K Cider. The drinkers advised that
they purchased the drinks from “the newsagent near Red Planet Pizza shop on
Ladbroke Grove”. The officers were mindful that there are two newsagents next
to the pizza shop and deduced that it was West 9 which actually sold the cans as
it sells these particular alcoholic brands, whereas the other newsagent does not.
According to the drinkers, they have a tab running at the premises and they are
able to pay for their goods at a later time.
30.06.14 at 13:16: the Committee took note of the fact that the drinkers have
approached members of the public to purchase alcohol on their behalf. It was PC
Davis’s contention that the onus is on the licensed premises to be vigilant and
through this vigilance to ensure that there are good management practices to
prevent alcohol being purchased for children or street drinkers.
23.07.14 at approximately 15:00: an officer witnessed two street drinkers in
the delivery bay of Sainsbury’s. One of the drinkers had a can of alcohol in his
hand and there were several other cans of Super Skol next to them. One of the
individuals told the officer that West 9 should be told “not to sell [the street
drinkers] the drinks”. This struck the Committee that the individuals were almost
pleading to get West 9 to stop selling the alcohol and yet it is noteworthy that on
the visits of 26.02.14, 02.04.14 and 03.04.14 the staff members were spoken to
about this issue.
During the hearing the PLHs confirmed that they only employ
two other staff members so the Committee has deduced that the staff have been
advised on a number of occasions not to sell alcohol to the street drinkers.
11.On the 13 August 2014 PC Davis spoke with Mr Thamilvanan about the alcohol sales at
the premises to street drinkers and explored intervention strategies to promote the
licensing objectives. This was followed up by an email on the same day by PC Davis
which Mr Thamilvanan responded1 to the following day stating: “we do not sell alcoholic
products to them and in some cases ban them from using our store.” The Police
submitted that his response was indicative of the poor management of the premises,
instead of presenting proactive measures to address this issue or ask for advice there is
a blanket denial of their involvement. The Committee was also surprised by Mr
Thamilvanan’s response, particularly as PCSOs had witnessed on a number of occasions
street drinkers purchasing alcohol from the premises (as detailed in paragraph 10).
12.Interestingly, after the review application was submitted and after Mr Thamilvanan’s
email, a multi agency inspection took place on 19 September which involved the Police,
HMRC and Trading Standards officers. It was noted that the premises continued to
stock large quantities of single cans of beers and ciders with high ABV levels of 7.5 to
9.0%. This particular visit is also very important for the second issue of this review
relating to the sale of non-duty paid alcohol and therefore further reference to it will be
made later in this decision. However, the Committee was mindful of the fact that
despite the advice previously given by various officers the premises had still not taken
proactive measures to remove single cans of beer and cider from their stock,
particularly those with a high ABV percentage and those favoured by street drinkers.
This was another indication to the Committee that there were shortcomings in the
1 Both emails are included at page 44 of the Notice of Hearing.
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management of the premises and their apparent preference for commercial gain over
the promotion of the licensing objectives.
13. The Committee was mindful of the email from Debra Silvester of the Licensing Services
Agency which was sent on 25 September and included in the Notice of Hearing at pages
76 – 77. Ms Silvester had originally been instructed by the PLHs in respect of this
review. Within this communication various submissions and assurances are provided,
but most notably:
“With regard to condition 22 Mr Chenthooran is willing to stop selling all the beers and
ciders favoured by street drinkers, i.e. Tennants Super, Kestrel Super, Skol Super and
Special Brew. He will also stop selling White Ace and K ciders. Mr Anandankumariah
and Mr Thamilvanan have also agreed to stop selling all of these drinks by 1st October,
so any of these not already sold out by then will be removed from the premises on that
date at Mr Chenthooran’s request.”
However, on 7 October at 15:50 PCSO Irene Scott and PC Fatmi were on foot patrol and
while opposite West 9 they saw one of the known street drinkers walk into the
premises. Shortly after they crossed over to the other side of the road upon which the
individual exited with a black carrier bag that contained two cans (Strongbow Cider and
Skol). The street drinker confirmed that he had purchased them from the premises.
When the officers entered the shop the staff member behind the till flatly denied selling
the alcohol. Another male in the shop (Thisan Siva) also denied selling alcohol to the
street drinkers and maintained that it was the officers’ job to stop them from coming
into the premises. During the hearing it was submitted for the PLHs that Strongbow was
not on the list of drinks to be removed. What the Committee found particularly
noteworthy about this incident is that despite the advice given to staff about this issue
from previous visits, despite the initiation of the review proceedings and despite the
assurance given on 25 September, single cans of beers and ciders and those cans which
are favoured by street drinkers were still being sold at the premises and the fact
remained that street drinkers were still being sold alcoholic drinks.
14.In determining this matter the Committee was mindful of its duty to ensure that there is
a causal link between the matters pertaining to this review, particularly the sale of
alcohol to street drinkers, and the premises3. Furthermore, the licensing authority has
a duty to take steps with a view to the promotion of the licensing objectives in the
interests of the wider community and not those of the individual licence holder4. The
Committee was satisfied, based on the evidence noted within this decision, that the
premises had sold alcohol to street drinkers. The ramifications of this are well
documented in PCSO Scott’s statement and the Committee considered that the sale of
alcohol to the street drinkers exacerbates the problems in the area. The Police
submitted that the persistent sale of alcohol by West 9 to street drinkers fails to
promote the licensing objectives as these individuals are particularly vulnerable and the
access to high strength cheap alcohol is compounding this issue. The street drinkers
congregate in public spaces throughout the day and this has had an impact on the local
community.
2 Pages 2 - 4 of the Notice of Hearing list the Police’s proposed conditions. Condition 2 states: “No super strength beer or
cider more than 6.0% ABV will be stocked.”
3 Paragraph 11.7 of the Guidance
4 Paragraph 11.26 of the Guidance
5
15. The second issue that prompted the review relates to the premises’ alleged failure to
pay duty to HMRC by stocking and selling a large quantity of non-duty paid spirits and
wine. Two inspections were carried out at the premises by Trading Standards and HMRC
officers which are of particular relevance and the pertinent details are as follows:
20 May 2014: Officers seized 666 litres of wine and 566 litres of spirits. Further
stock was identified but was left by the HMRC officers due to logistical reasons.
The spirits were all described as “diverted” stock, which means that the products
had probably been manufactured in the UK for export but subsequently diverted
either in the UK or beyond. The back labels tend to be replaced to give it the
appearance that it is UK duty paid stock. HMRC have estimated that the loss of
duty on the goods seized amounts to £11,830.24.
18 September 2014: more non-duty paid alcohol was discovered at the site and
the total seized amounted to 85.76 litres. Mr Dickson also highlighted to the
Committee that during this inspection more evidence was discovered indicating
that the business is more heavily involved in duty evasion as counterfeit back
labels were found for Bells, Famous Grouse Whiskey and Glens Vodka. The
Committee took note of the photographs included within the Notice of Hearing of
these labels (located at pages 57 and 58). Mr Dickson is satisfied that these
labels are counterfeit as they do not have the required cut marks on them
designed to prevent their removal in one piece. Samples of bottles spirits were
also found in the basement with counterfeit labelling or bottles awaiting
preparation (as their back labels were missing / removed).
In addition, the Wray and Nephew rum was found to be non-duty paid as it had
been imported directly from Jamaica with the manufacturer’s details on it. One of
the boxes in the basement of this rum had a label on it stating that it had been
air freighted via Gatwick airport. Mr Dickson confirmed that all legitimate
products intended for sale in the UK market should have a UK name and address
on it. Furthermore, some of the bottles were not of a size permitted in the
European Union as they were 37.5cl as opposed to 35cl (which is a contravention
under the Weights and Measures Act 1985).
During this visit Mr Dickson took note of the fact that no prices were on display
for any of the goods in the premises, particularly the alcoholic beverages. One of
the staff members, Mrs M Navarajasingham, advised that the prices had been
removed for Notting Hill Carnival and had not been replaced yet. It was
submitted that during Carnival the normal stock is removed from the shop floor
to make way for additional alcohol. It was apparent to Mr Dickson that the goods
had been returned haphazardly with little thought as rat poison and oven cleaner
were stocked next to and above baby food, which in his professional opinion
constitute breaches of the Price Marking Order 2004 and the Poisons Act 1974
16. It is noteworthy that on 20 May Mr Thamilvanan was present throughout the inspection
which is confirmed in the statement of Lawrence Stapleton (dated 20 October 2014).
During the inspection of 18 September the HMRC officer Mr Ken Nwabuzor spoke with
“Mr Tham” (possibly Mr Sivarasa Thamilvanan) on the telephone and this is
corroborated in his statement of 20 October. The Committee was mindful that the
possession of non-duty paid alcohol constitutes a breach of Section 144 of the Act and
the revelations from these two inspections were once again indicative of behaviour by
the premises which goes against the ethos of the Act. The Committee, in determining
this matter, has not made any findings on the criminality of the issues raised in this
review; rather it has assessed the impact these matters have had on the promotion of
the licensing objectives. A considerable amount of evidence was submitted by Mr
Dickson and PC Davis in this regard, which the PLHs did not discredit. In fact, Mr
6
Thamilvanan took responsibility for the matter and both PLHs accepted the seriousness
of the issue.
17.It was submitted that the PLHs commenced their business partnership over seven years
ago. Mr Anandankumariah has not purportedly taken an active role in the day-to-day
running of the premises and less so after he had a heart attack in 2008. The
Committee took note of the email of Debra Silvester sent on 25 September which states
that due to Mr Anandankumariah’s poor health he has “been unable to work in the
shop” and the correspondence from his Consultant Cardiologist which sets out his
medical condition. It was submitted that due to Mr Anandankumariah’s ill health Mr
Thamilvanan took over the running of the shop until he too fell ill in November 2013
with a hernia problem culminating with an operation in March 2014.
18.The Committee took note of the email communication from Ms Silvester referred to
previously which states that when Mr Thamilvanan fell ill, Mr Senkeethanan took over
the running of the shop which is when the problems started occurring. The email also
states that when the PLHs received the review papers and “found out what had been
going on in the shop in their absence Mr Senkeethanan was dismissed and no longer
works in the shop. It was while he was running the shop that the non duty paid alcohol
was purchased by him without the knowledge of the licence holders. . . all of the alcohol
found by [HMRC] was purchased by him”. Yet in the statement of Lawrence Stapleton
and during the hearing Mr Thamilvanan fully accepted that he had acquired the non-
duty paid alcohol from a “man in a van”, a matter he reaffirmed several times during
the course of the proceedings. Mr Thamilvanan explained to the Committee that:
He has been doing the general purchasing of stock for the shop and is responsible
for the banking.
He has two staff members who he has trained about selling alcohol to children
and street drinkers and advised them not to sell to either. He is fully aware of the
problem with street drinkers in the area and maintains that staff at West 9 do not
sell alcohol to them.
Mr Thamilvanan is a personal licence holder.
The “man in the van” comes round on an ad hoc basis. He does not leave any
contact details nor does Mr Thamilvanan know his name. When he attends Mr
Thamilvanan pays him in cash from money out of the till. Mr Thamilvanan tells
Mr Anandankumariah about the purchases and he has purchased alcohol from the
“man in the van” about 4 or 5 times. Mr Thamilvanan sought to justify the
purchases on the basis that he needs to be able to compete with other shops.
19.The Committee was rather surprised at the shift between the submissions included in
the email of 25 September and the revelation by Mr Thamilvanan that he had in fact
acquired the non-duty paid alcohol. It left the Committee seriously questioning why two
different submissions were put forward, the inconsistency of the submissions and
ultimately PLHs ability to promote the licensing objectives and adhere to the provisions
of the legislation.
20.During the course of the proceedings Mr Aylott explained that the partnership between
the PLHs will be dissolved imminently. He submitted that if the Committee was minded
not to revoke the premises licence he would suggest that Mr Thamilvanan is excluded
from the premises and his name removed from the premises licence. Mr Aylott
circulated a list of 27 conditions which he considered would address the problems and
7
promote the licensing objectives5. In turn, Mr Dadds also asked the Committee to
adopt these conditions and asked the Committee to have due regard to the fact that his
client was purportedly oblivious to the purchases of non-duty paid alcohol. On behalf of
his client, Mr Dadds made the following submissions to the Committee:
That he doubted the credibility of Mr Thamilvanan, particularly the admissions in
relation to the purchase of non-duty paid alcohol as he considered that more then
4-5 purchases from the man in the van had taken place.
There is a
bona fide business partnership between the two PLHs, it is not clear
when the partnership will be dissolved, but it will be ending.
His client fully accepts that the sale of smuggled alcohol constitutes a particularly
serious offence and that the Guidance recommends in such instances it is
expected that revocation of the licence should be seriously considered (Guidance
paragraphs 11.27 and 11.28).
21.However, Mr Dadds submitted that the Guidance, at paragraph 11.10, recommends that
where the responsible authorities or authorised persons have concerns about problems
identified at the premises, then adequate warning of those concerns needs to be given
to enable the premises to improve where possible. It was his considered opinion that
adequate warnings had not formally been given to the PLHs and that the Police had not
carried out a thorough investigation before instigating this review. He suggested that
letters should have been sent to the DPS and the PLHs explicitly setting out their
concerns. The Committee was mindful of paragraph 11.10; the fact that it provides that
it would be “good practice” to give early warning of concerns together with the steps
they could take to address the concerns and
if they fail to respond to the warnings then
it is expected to lead to a decision to apply for a review. The Committee considered
that the paragraph in question provided advice on good practice and thus not a
necessary precursor to a review. In this instance, it was the Committee’s considered
opinion that the PLHs, particularly Mr Thamilvanan, had sufficient knowledge of the
issues at the heart of this review and that advice had been given on several occasions
by PCSOs and PC Davis not to sell alcohol to street drinkers. This is evidenced by the
extracts noted in paragraph 10 above, the visit by PC Davis to the premises on 3 April
2014 and the email exchange of 13 and 14 August. The Committee considered that the
absence of letters from the Police did not demonstrate that adequate notice had not
been given and that in the circumstances the advice, visits and discussions over several
months sufficed. Mr Thamilvanan had in the hearing accepted that street drinkers were
an issue in the area and that he had trained his staff not to sell them alcohol. However,
the suggestion was made at the hearing by those representing the PLHs that as the
advice had been given to the staff it did not satisfy the graduated approach
recommended in paragraph 11.10 of formally notifying the PLHs. It was the
Committee’s considered opinion that Mr Thamilvanan was aware of the issue. However,
even if one was to assume that only the two staff had been spoken to, to maintain that
the PLHs were themselves unaware or not informed by the relevant authorities would be
another indicator of the poor management practices and the apparent lack of
communication between the staff and the PLHs.
22.Nevertheless, and regardless of the Committee’s finding that the PLHs had been given
adequate warning, it was the Committee’s considered opinion that 11.10 must be read
in context with paragraphs 11.27 and 11.28. In addition, the Committee was mindful
that each matter must be considered on its own merits. The Guidance directs licensing
authorities that certain criminal activity in connection with licensed premises “should be
5 The list of conditions is attached to this Decision as Appendix 1
8
treated particularly seriously” and the sale of smuggled alcohol is included within the
list6. In those circumstances the Guidance recommends that if the licensing authority
determines that the crime prevention objective is being undermined “it is expected that
revocation of the licence – even in the first instance – should be seriously considered.7”
In the circumstances the Committee was aware that the two inspections revealed large
quantities of non-duty paid alcohol and while the inspection in September had revealed
less non-duty paid alcohol then the first, the discovery of counterfeit labels and bottles
awaiting preparation was of grave concern to the Committee. This in itself
demonstrated that the PLHs and the staff were probably more involved and aware of
the non-duty paid alcohol then they admitted. Mr Thamilvanan is a personal licence
holder, one of the PLHs and had been present in the premises during the May
inspection. By virtue of these facts he should have been fully aware of the duty to sell
alcohol responsibly and in accordance with the legislation. To suggest to the Committee
that the PLHs did not have adequate warning or advice in light of the serious facts of
this case would be inappropriate as the gravity of the situation warranted necessary
action by the responsible authorities and in turn by the Committee.
23.It was submitted that Mr Anandankumariah had been completely unaware of the
purchases made by Mr Thamilvanan and suggested that there was no evidence of his
involvement. It was his contention that Mr Anandankumariah recognises the
seriousness of the matter and is desperate to salvage the business. As his health is
better he will solely manage the shop and is proposing that the premises licence is
suspended for a minimum period of 6 weeks to allow him to put in place the following
measures:
Retrain all staff;
Seek a new DPS and manager;
Completely dissolve the partnership with Mr Thamilvanan;
Ensure all the conditions suggested in the Police’s application are implemented.
Mr Anandankumariah also sought to have the 27 conditions suggested by Mr Aylott
imposed on the licence which he considered would promote the licensing objectives.
24. Upon questioning from the Committee, Mr Anandankumariah explained that he had
four other partnerships of West 9 Food and Wine, which are located in West Hampstead,
Ickenham, Harrow Road and Wembley. He advised the Committee that when he
recently applied to extend the permitted hours for the sale by retail of alcohol for the
premises in Wembley the licensing officers happened to witness staff selling alcohol to
someone who was drunk. Nevertheless, the extended licence was granted subject to
additional conditions imposed on the licence relating to the training of staff.
25.The Committee took note of the fact that in Debra Silvester’s email of 25 September
she had stated that “neither of [the PLHs are] able to work at the premises any longer
due to ill health” yet at the hearing it was submitted by Mr Dadds on behalf of Mr
Anandankumariah that his client was now well enough to solely manage the running of
the premises. It concerned the Committee that there was such a disparity on this
fundamental issue of Mr Anandankumariah’s health. The inconsistency left the
Committee questioning the credibility of Mr Anandankumariah.
6 Paragraph 11.27 of the Guidance
7 Paragraph 11.28 of the Guidance
9
26.It concerned the Committee that even after the review proceedings were instigated the
premises had continued to sell alcohol to street drinkers and kept non-duty paid alcohol
on site. At one point during the hearing it was mooted on behalf of the PLHs that on 18
September the HMRC officers had discovered alcohol which had been left by the HMRC
officers during the May inspection. The Committee was not convinced by this argument.
The Committee also considered that a responsible operator would have undertaken a
very thorough stock check after May to ensure that all the stock left on site is
legitimate, but it seems that this was not the case here. As for the sales to the street
drinkers, it appeared to the Committee that even after several warnings and advice to
the staff and Mr Thamilvanan, sales were still taking place.
27.Having considered all the above facts it was the Committee’s considered opinion that
the premises, in choosing to purchase and sell non-duty paid alcohol, had failed to
promote the licensing objective of prevention of crime and the Committee was mindful
of the seriousness of this as well as the advice within the Guidance that revocation must
seriously be considered in the circumstances. The PLHs, particularly Mr
Anandankumariah, believed that conditions and a temporary suspension of the licence
would be the appropriate remedy. The Police and Trading Standards considered that
revocation of the premises licence is appropriate and necessary. The Committee had
grave concerns about the proposition put forward by the PLHs for a number of reasons,
but primarily because it had serious reservations about the ability of Mr
Anandankumariah to adhere to the conditions and to responsibly manage the premises
with a view to complying with the Act and promoting the licensing objectives. The
evidence before the Committee had confirmed that the there had been a disregard of
regulatory measures, such as: the purchasing, stocking and selling on non-duty paid
alcohol; selling alcohol to someone who is drunk; stocking products in contravention of
the of the Price Marking Order 2004 and the Poisons Act 1974; and stocking the wrong
size bottles in contravention of the Weights and Measures Act 1985. Mr
Anandankumariah had sought to lay the blame on Mr Thamilvanan, maintaining that he
had placed his trust in his business partner to run the premises and that he had no
knowledge of what was going on. However, the Committee was mindful of the fact that
not only is Mr Anandankumariah a PLH, but he is also the DPS and as such has specific
responsibilities under the Act which he has neglected. In fact, the Guidance reinforces
that the DPS is the key person who is responsible for the day-to-day running of the
premises8. The revelation that Mr Anandankumariah is a partner in another four
premises around Greater London and the incident in the Wembley shop highlighted to
the Committee that Mr Anandankumariah was probably aware of the business matters
relating to the various premises and in any event, as a PLH and the DPS he should have
been aware of what was happening in this premises. With this in mind, the Committee
was particularly mindful of the submission made during the hearing that Mr
Anandankumariah was desperate to salvage the business and in light of the various
factors raised in these proceedings questioned the veracity of the assertions he made
that he was not responsible for the purchasing, stocking and selling of the non-duty
paid alcohol and that fact that he was purportedly oblivious to what was going on. The
Committee specifically asked how the goods had been paid for and was told in cash
from the till and the Committee doubted that Mr Anandankumariah did not know or had
not himself questioned this arrangement. Therefore, Mr Anandankumariah’s proposal to
take responsibility for the future running of the business did not instil the Committee
with much confidence. It appeared to the Committee that the premises had been
poorly run and was not satisfied that Mr Anandankumariah would run it responsibly in
the future.
8 Paragraph 2.6 of the Guidance
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28.While the Committee considered that the conditions proposed by the PLHs are abundant
and quite thorough, it questioned whether or not the PLHs and DPS could genuinely
implement and adhere to them all. The facts of this case have revealed that the PLHs
have not given due regard to the terms of the Act or Guidance and that they have failed
to promote the licensing objectives. More importantly, the Committee had not been
presented with specific evidence by the PLHs which proved a genuine intention to
implement the conditions, for example staff training material, example training records,
proposed measures to deter and deal with street drinkers, proposed stock control
systems, etc. none of these were made available. The Committee was not satisfied that
there was a genuine intention by the PLHs to remedy the problems.
29.The Committee considered that there have been persistent and ongoing management
failures and an inability by the PLHs to grapple with the issues at the very heart of this
review. As such, the Committee deemed that in the circumstances the suspension of
the licence and/or the conditions would not be robust enough to address the issues of
concern. There was a further proposal by Mr Anandankumariah that the DPS would be
changed, yet a suitable alternative was not suggested and thus this did not present as a
viable or appropriate option for the Committee to pursue. However, the Committee was
entirely mindful of the fact that even if a name was put forward the Police may have an
objection, as was the case in relation to Mr Chenthooran’s application.
30.Furthermore, the Committee was satisfied from the evidence that the premises have
preferred commercial gain over the promotion of the licensing objectives. The extracts
of purchases made on 26 February, 2 April, 19 June, 23 July and 7 October by street
drinkers cited earlier and the purchasing on non-duty paid alcohol is indicative of this.
Even the fact that the premises remove all their regular goods during Notting Hill
Carnival and predominantly stock alcohol without any price labels reinforces this
contention. The fact remained that both PLHs are jointly and severally responsible for
the premises and if Mr Anandankumariah genuinely was unable to manage the business
he should have taken proactive measures to disassociate himself from the premises
licence at an earlier stage.
31.If any of the parties are unhappy with the decision they are entitled to appeal to the
magistrates’ court within 21 days from the date of notification of this decision. This
determination does not have effect until the end of the period given for appealing
against the decision, or if the decision is appealed against, until the appeal is disposed
of.
Licensing Sub-Committee 30 October 2014
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Annex 1 – Conditions proposed by the PLHs
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