Agendas, reports and minutes

Minute of the meeting of the Highland Licensing Committee held in the Council Chamber, Council Headquarters, Glenurquhart Road, Inverness on Tuesday 12 August 2014 at 10.30am.

Present:

Dr I Cockburn, Mr A Duffy, Mr C Fraser, Mr A Henderson, Mrs L Macdonald, Mr W Mackay, Mr J Rosie, Ms M Smith, Mr J Stone and Mr H Wood.

In Attendance:

Mr A Mackenzie, Legal Manager (Clerk)
Ms S Blease, Principal Solicitor (Regulatory Services)
Mr M Elsey, Senior Licensing Officer
Ms A Macrae, Committee Administrator

Also Attending:

Inspector M Macinnes, Police Scotland
Sergeant S Campbell, Police Scotland

Also in Attendance:

Item 9.1:  Mr J Martin, Applicant
Item 10.1:Mr R Bremner, Applicant
Item 12.1:Mr R Macdonald, Applicant and Mr M Campbell, Solicitor for Applicant
Item 12.2:Mr R Macdonald, Applicant and Mr M Campbell, Solicitor for Applicant
Item 12.4:Ms D Godsman, Applicant

Ms M Smith in the Chair

The Chair confirmed that the meeting would be webcast and gave a short briefing on
the Council’s webcasting procedure and protocol.

Business

1.  Apologies for Absence 
Leisgeulan

An apology for absence was intimated on behalf of Mr R Greene.

2.  Declarations of Interest
Foillseachaidhean Com-pàirt

Item 7: Ms M Smith (financial)
Item 9.1: Mr A Duffy and Mr H Wood (non-financial)

3.  Confirmation of Minutes 
Dearbhadh a’ Gheàrr-chunntais

There had been submitted for confirmation as a correct record the minute of meeting of the Committee held on 17 June 2014, which was APPROVED.

4.  Licences Granted Under Delegated Powers
Ceadachdan a Bhuilicheadh fo Ùghdarras air a Thiomnadh

There had been circulated Report No HLC/045/14 by the Legal Manager  detailing those licences granted under delegated powers under the Civic Government (Scotland) Act 1982 and the Marriage (Approval of Places) (Scotland) Regulations 2002 in the period from 4 June 2014 to 29 July 2014.

The Committee NOTED the report.

5.  Pending Applications - 3 Monthly Considerations 
Iarrtasan ri Thighinn – Beachdachaidhean 3 Mìosach

There had been circulated Report No HLC/046/14 by the Legal Manager relating to applications which were currently pending for the grant or renewal of licences under the Civic Government (Scotland) Act 1982. The Report recommended that the Committee agree to defer the determination of the applications, either: (i) to allow them to be approved under delegated powers in the event that all responses and no objections were received, and all outstanding documentation has been received from the applicants, or (ii) to a future meeting of the Committee when the applications would be determined in terms of the Hearings Procedure.

The Committee AGREED the recommendation.

6.  Air Weapons and Licensing (Scotland) Bill 
Bile nan Gunnaichean-adhair 's a' Cheadachaidh (Alba)

There had been circulated Report No HLC/047/14 by the Legal Manager advising the Committee of the provisions of the Air Weapons and Licensing (Scotland) Bill and asking the Committee if it wished to respond to the call for evidence from the Scottish Government. The purpose of the Bill was to protect public safety by creating new licensing regime for air weapons to be administered by Police Scotland and to improve aspects of alcohol and civic government licensing in order to preserve public order and safety, reduce crime, and to advance public health. The Report set out the proposed response to the call for evidence as set out at Appendix 1.

The Legal Manager advised that the Report focused on the Civic Government licensing provisions. The views of the Committee in relation to the licensing of Sexual Entertainment venues would be made known to the Highland Licensing Board as this would impact on those Premises Licences which included adult entertainment in their Operating Plan.

The Principal Solicitor outlined in detail the process the Council would require to follow in the event it decided to introduce licensing of sexual entertainment venues under Section III of the Civic Government (Scotland) Act 1982. This included the passing of a resolution to that effect. The Committee would also be required to determine and publish the appropriate number of venues in its locality, noting that the Council could determine that the appropriate number was nil. She advised that once the appropriate number of venues had been defined this could be used as a grounds for refusal. She also outlined the likely impact of the Bill on existing venues licensed under the Licensing (Scotland) Act 2005 which specified that adult entertainment would take place as part of their operating plan. In regard to the proposed exceptions to the licensing regime she indicated that these would include a sex shop, such other premises as specified by Scottish Ministers, and premises offering sexual entertainment three or less times in a twelve month period. 

The Principal Solicitor also advised that on examining the Bill she had found a number of procedural points on which she wished to add in further queries at questions 52-54 of the suggested response attached at Appendix 1 to the report, subject to the prior approval of the Chair. These related largely to greater definition being provided on some procedural matters relating to sexual entertainment licensing and the criteria the local authority should apply when defining the appropriate number of venues for its locality.

During discussion Members raised the following points:-

• that the Committee should review its previous decision not to introduce overprovision as grounds for refusing to grant private hire car licences or to require private hire car drivers to sit a knowledge test. This was in light of the feedback received from the trade and customers and additional information generated following the establishment of the Taxi and Private Hire Car Sub-Committee. As part of this review the Committee should also consult with the trade and the public on their views in this regard;
• that the Committee should support the introduction of zoned areas on the basis that this would benefit both drivers and customers in Highland. As part of this the Council’s knowledge test should be reviewed and updated and local test aligned to the zoned areas. It was suggested that the current Highland wide test was unfair on drivers due to the size and geography of the area;
• a query in regard to whether wheelchair accessible vehicles were being promoted as far as possible. The Legal Manager advised that while not mentioned in the Bill, proposals in this regard were being considered by the Council as Licensing Authority and would be brought forward to the Committee in due course; and
• the proposals in regard to sexual entertainment venues were welcomed on the basis that the licensing regime would provide a greater measure control and regulation over sexual entertainment and venues.

In regard to the issues raised around private hire car licences, the Legal Manager clarified that there were no proposals in the Bill to limit numbers of private hire car drivers or to introduce zones.  He advised that this would be for the Committee to decide but cautioned there may be legal implications for the Council associated with any such decision. He acknowledged that the Council’s knowledge test required to be reviewed and updated.  However, currently the test comprised a local section in addition to the Highland wide test. He advised that the Highland section of the test also mainly focused on the Highway Code. 

The Chair suggested that the proposed response to the Scottish Government’s call for evidence be approved and the issues raised in discussion in regard to taxi and private hire car licensing be considered by the Committee at a future date.

The Legal Manager further reported that the Bill also proposed the removal of the 24 hour contract exemption for vehicles and that this would bring larger vehicles, such as stretch limousines, into the licensing regime. He advised that the implications of this were that a new vehicle specification would have to be drawn up and consideration given to where these vehicles would be tested, given that they could not be accommodated in some of the garages used by the Council for testing taxis/private hire cars.

Thereafter, the Committee AGREED to respond to the call for evidence with the responses suggested in the Report and additional procedural points to be included at questions 52-54 (to be approved by the Chair prior to submission).

7.  Licensing of Skin Piercing and Tattooing – Fee for Additional Premises
Ceadachadh an Tollaidh Chraicinn 's an Tatùthaidh - Cìs airson Àite obrach a Bharrachd 

Declaration of Interest:- The Chair declared a financial interest in this item as the holder of a Skin Piercing and Tattooing Licence and left the Chamber for the determination of this item.

There had been circulated Report No HLC/048/14 by the Legal Manager recommending that the Committee consider introducing a reduced fee for multiple premises operated by the same Licence Holder.

During discussion Members raised the following points:-

• that consideration be given to reducing the fee below the proposed level of £109 to further assist businesses; and
• the proposed fee was in line with that charged for second hand vehicle dealers and market operators and should be approved.

The Committee AGREED to the introduction of an application fee of £109 in respect of each additional premise application for licence for skin piercing and tattooing where the applicant has applied for, or already holds a licence, and has paid the full application fee in respect of this.  

8.  Civic Government (Scotland) Act 1982 
Application for Late Hours Catering Licence
Achd Riaghaltais Chatharra (Alba) 1982
Iarrtas airson Ceadachd Sholarachd Uairean Anmoch

8.1 Application for a Late Hours Catering Licence – Subway, 19 Inglis Street, Inverness

There had been circulated Report No. HLC/049/14 by the Legal Manager relating to an application which had been received from Mr Liam Dalgarno for the renewal of a late hours catering licence in respect of premises at Subway, 19 Inglis Street, Inverness.

The Senior Licensing Officer confirmed that a following the display of the relevant site notice a certificate of compliance had been submitted by the Applicant, and no objections had been received.

The Committee AGREED:-

i.  to grant the application subject to the standard conditions; and

ii.  to warn the applicant that he must comply with the statutory requirements to display a site notice timeously.

9.  Civic Government (Scotland) Act 1982 
Application for Public Entertainment Licence
Achd Riaghaltais Chatharra (Alba) 1982
Iarrtas airson Ceadachd Sholarachd Uairean Anmoch

Declarations of Interest:- Mr A Duffy and Mr H Wood declared a non- financial interest in this item as Directors of Inverness Leisure Limited and left the Chamber for the determination of this item

9.1 Application for Public Entertainment Licence – Inverness Leisure

There had been circulated Report No HLC/050/14 by the Legal Manager relating to an application which had been received from Caledonia Community Leisure Ltd. t/a Inverness Leisure for the renewal of a public entertainment licence. The Report detailed an additional condition to be attached to the grant of the licence in respect large events to the effect that a management plan and layout plan must be submitted and approved prior to the event.

The Senior Licensing Officer advised of a change of circumstances in relation to the Applicant noting that the application had been submitted in the name of ‘Caledonia Community Leisure Ltd’ t/a Inverness Leisure’ but that he had been advised that the name had been changed to Inverness Leisure Ltd.

Mr J Martin, Applicant, explained that the name of the Company had been changed to Inverness Leisure Limited to remove any confusion for the public. He advised that the change had been approved both by Companies House and the Office of the Scottish Charity regulator (OSCAR).  In response to a question he confirmed that this had been a name change only and that a new company had not been set up, and that the Company’s Board, Constitution and Memorandum of Articles all remained the same.

The Committee NOTED the change of name to Inverness Leisure Limited and AGREED to grant the application subject to the standard conditions and the recommended additional condition as detailed in the report.

10.  Civic Government (Scotland) Act 1982 
Taxi Driver’s Licence
Achd Riaghaltais Chatharra (Alba) 1982
Ceadachdan Dhràibhearan Tagsaidh

10.1 Application for Taxi Driver’s Licence – Ronald C Bremner

There had been circulated Report No HLC/51/14 by the Legal Manager relating to an application which had been received from Ronald C Bremner for the grant of a taxi driver’s licence. The Report advised that no objections or representations had been received in response to the application. Mr Bremner had passed the local section of the knowledge test but had not passed the Highland-wide general knowledge section, having undertaken the three permitted attempts and having achieved pass marks of 75%, 58% and 69%, which were all below the pass mark of 85%.

Mr R Bremner, Applicant, spoke in support of his application during which he advised that he had considerable experience as a driver of cars, buses and heavy goods vehicles across the UK, having passed the relevant driving test for each on the first occasion. He had now retired and was seeking to secure employment as a taxi driver to supplement his pension. He also referred to a letter which had been submitted by his prospective employer, Ormlie Taxis, in support of his application.  In regard to the Knowledge Test he referred to personal circumstances which had impacted on his ability to pass the knowledge test and as such requested that the Committee allow him one more opportunity to sit the test.

During discussion Members raised the following points:-

• that the Applicant should be afforded one further opportunity to sit the Knowledge Test;
• that there was a need for the Knowledge Test to be updated and reviewed on the basis that it had been a number of years since the test had been drawn up and some aspects were not out of date; and
• that allowing the Applicant to sit a fourth test may create a precedent for future applications.

In response to a question the Legal Manager advised that if the application were refused, the Applicant could only re-apply for a taxi driver’s licence within the twelve month period following refusal if he could demonstrate that there had been a change in his circumstances.  

Thereafter, Mr A Duffy seconded by Mr W Mackay moved that the Applicant be afforded one further opportunity to sit the Knowledge Test, and that it be delegated to the Legal Manager to approve or refuse the application depending on whether or not the Applicant passed the test.  

Mr J Stone seconded by the Chair moved as an amendment that the application be refused on the grounds that the applicant was not a fit and proper person to be the holder of the licence as he had not passed the required Knowledge Test.  

On a vote being taken, votes were cast as follows:-  

For the motion (4):

Mr A Duffy; Mr C Fraser, Mr W Mackay and Mr J Rosie.  

For the amendment (6):

Dr I Cockburn; Mr A Henderson; Mrs L Macdonald; Ms M Smith; Mr J Stone and Mr H Wood. 

Decision

The Committee AGREED to refuse the application on the grounds that the applicant was not a fit and proper person to be the holder of the licence as he had not passed the required Knowledge Test.

11.  The Committee resolved that, under Section 50A(4) of the Local Government (Scotland) Act 1973, the public be excluded from the meeting during discussion of items 12.1, 12.2, 12.3, 12.4 and 13.1 on the grounds that they involved the likely disclosure of exempt information as defined in Paragraph 3 of Part 1 of Schedule 7A of the Act.

12.     Civic Government (Scotland) Act 1982
Taxi Drivers / Operators Licences

Private Hire Car Drivers/Operators Licences
Achd Riaghaltais Chatharra (Alba) 1982
Ceadachdan Dhràibhearan / Oibrichean Tagsaidh
Ceadachdan Dhràibhearan / Oibrichean Chàraichean airson Fastadh Prìobh

12.1 Application for Grant of Taxi Driver’s Licence – Raymond McDonald

There had been circulated to Members only Report No HLC-51-14 by the Legal Manager relating to an application which had been received from Raymond McDonald for the grant of a taxi driver’s licence.

The Committee heard from Mr M Campbell for the Applicant. During the course of his submission Mr Campbell referred to the ruling in respect of the case Anderson v The Security Industry Authority and submitted that the Committee should not take into account any intelligence entries provided by the Police as they failed to give fair notice of the case against the Applicant.  This breached Article 6(1) of the Human Rights Act 1998.

Inspector M Macinnes then addressed the Committee, advising that she had nothing to add to the letter of objection from Police Scotland to the grant of the licence.  She considered that the Committee were entitled to, and should, take into account the intelligence entries referred to in the Police Scotland letter.

In response the Legal Manager advised that given the Sheriff’s judgment in the above case, the Committee should disregard any intelligence entries contained within objections/representation received from Police Scotland if they failed to fully specify the allegations to which they related and therefore failed to give fair notice to the Applicant of the case he required to answer at the hearing before

the Committee.  To do otherwise, in respect of this or any future applications, would place the Committee in breach of its legal obligation, under Article 6(1) of the Human Rights Act 1998, to afford the applicant a fair hearing.

Following discussion, the Committee AGREED to:-

i.  to grant the application subject to the standard conditions and subject to the Applicant’s passing the Knowledge Test, and

ii.  to give the Legal Manager delegated powers to issue the Licence in the event that the Applicant passed the Knowledge Test or to refuse the application in the event that the Applicant did not.

12.2 Application for a Private Hire Car Operator’s and Driver’s Licence – Raymond McDonald

There had been circulated to members only Report No HLC/053/14 by the Legal Manager relating to an application which has been received from Raymond McDonald for the renewal of a private hire operator’s and driver’s licence.

The submissions of Mr M Campbell for the Applicant, and Inspector M Macinnes for Police Scotland make in respect of Item 12.1 applied equally to this Item, as did the legal advice provided by the Legal Manager.

The Committee AGREED to grant the applications subject to the standard conditions.

The Committee adjourned for lunch at 12.50pm and re-convened at 1.25pm.

12.3 Application for Grant of Taxi Driver’s Licence – Christopher Stewart

There had been circulated to Members only Report No HLC/054/14 by the Legal Manager relating to an application which had been received from Christopher Stewart for the grant of a taxi driver’s licence.

The Legal Manager circulated a letter which had been received from the Applicant which explained why he was not able to attend the meeting and in support of his application.

The Committee AGREED to grant the application subject to the standard conditions and to warn the Applicant that committing any future offences may lead to his fitness to hold a Licence being reviewed by the Committee.

12.4 Application for Grant of Taxi Driver’s Licence – Donna Godsman

There had been circulated to Members only Report No HLC/055/14 by the Legal Manager relating to an application which has been received from Donna Godsman for the grant of a taxi driver’s licence.

The Legal Manager advised that a late letter of objection to the application had been received from Police Scotland.

On hearing from Inspector Macinnes and Ms Godsman, Applicant, the  Committee AGREED not to accept the late letter of objection received from Police Scotland.

Thereafter, the Committee AGREED to grant the application subject to the standard conditions.

13. Civic Government (Scotland) Act 1982
Application for Street Trader’s Licence
Achd Riaghaltais Chatharra (Alba) 1982
Iarrtas airson Ceadachd Neach-malairt Sràide

13.1 Application for a Street Trader’s Licence – Ciaran Wilson

There had been circulated to Members only Report No HLC/056/14 by the Legal Manager relating to an application which had been received from Mr Ciaran Wilson for the grant of a street trader’s licence.

The Legal Manager advised that notification had been received from a relative of the Applicant, who would also be his employer, requesting that the application be withdrawn. He advised that as the request had not come directly from the Applicant and given that the applicant was not present at the meeting, the Committee could not consider the request.

The Legal Manager advised the Committee of a late letter of objection to the application by Police Scotland and Inspector Macinnes was then invited to address the Committee as to the reasons for the lateness of the objection.

The Committee AGREED to accept the late letter of objection received from Police Scotland.

The Committee then heard from Inspector M Macinnes in relation to the objection.

Following discussion the Committee AGREED to refuse the application on the grounds that the Applicant was not a fit and proper person to be the holder of a street trader’s licence.

The meeting closed at 12.40pm.