Agendas, reports and minutes

Minute of the meeting of the Highland Licensing Board held in the Council Chamber, Council Headquarters, Glenurquhart Road, Inverness, on Tuesday 6 October 2015 at 1.00pm. 

Present:

Dr I Cockburn, Mr C Fraser, Mr R Greene, Mrs L Macdonald, Mrs G Sinclair, Ms M Smith and Mr J Stone.

In Attendance:

Mr A Mackenzie, Clerk
Ms S Blease, Depute Clerk
Mr I Cox, Licensing Standards Officer
Mrs L Treasurer, Licensing Standards Officer
Ms A Macrae, Committee Administrator 

Also In Attendance:

Sergeant B Gray, Police Scotland 

Item 10.1, 11.2: Mrs L Murray, Solicitor for the applicant
Item 11.1: Mr G Watson, Solicitor for the applicant
Item 11.3: Ms A Macdonald, applicant’s representative
Item 12.2: Mr A Mitchell, applicant and Mr R Graham, applicant’s employer
Item 12.3: Mr A R Thayatheyil, applicant

Dr I Cockburn in the Chair 

The Convener advised the Board that the meeting would be filmed and broadcast over the internet on the Highland Council website and would be archived and available for viewing for 12 months. 

1. Apologies for Absence
Leisgeulan

Apologies for absence were intimated on behalf Mr A Duffy, Mr A Henderson and Mr W Mackay.  

2. Declarations of Interest 
Foillseachaidhean Com-pàirt.

There were no declarations of interest. 

3. Confirmation of Minutes 
Dearbhadh a’ Ghearr-chunntais 

There had been circulated for confirmation the minute of the meeting of the Board held on 11 August 2015.  

The Minute was held as read and APPROVED. 

4.  Licensing (Scotland) Act 2005
Licences granted under Delegated Powers
Achd Ceadachd (Alba) 2005
Ceadachdan a bhuilicheadh fo Ùghdarras air a Thiomnadh

There had been circulated Report No HLB/099/15 detailing licences which had been granted under delegated powers by the Clerk to the Board during the period 29 July 2015 to 22 September 2015.

The Board NOTED the report.

5.  Licensing (Scotland) Act 2005
Occasional Licences and Extended Hours
granted under Delegated Powers
Achd Ceadachd (Alba) 2005
Ceadachdan Corra-uair agus Uairean Sìnte a bhuilicheadh fo Ùghdarras air a Thiomnadh

There had been circulated Report No HLB/100/15 detailing occasional licences and extended hours applications which had been granted under delegated powers by the Clerk to the Board during the period 29 July 2015 to 22 September 2015.

The Board NOTED the report.

6.  Festive Period Dates
Cinn-latha Ràithe na Nollaige

The Board was invited to note that the following dates over the festive period 2015/16 had been agreed by the Convener as the dates between which the Board will consider applications to extend on-sales hours to up to 0400 hours for late opening premises and up to 0200 hours for other on-sales premises in accordance with the Board’s Licensing Policy Statement: 

From Friday 11 December 2015 (allowing extensions from Friday 11 December into Saturday 12 December)  
To Sunday 3 January 2016 (allowing extensions from Saturday 2 January into Sunday 3 January only).

The Board NOTED the festive period dates.

7.  Chief Constable’s Report 1 April 2014 to 31 March 2015 
Aithisg an Àrd-Chonstabail 1 Giblean 2014 gu 31 Màrt 2015

There had been circulated as a separate booklet, the Chief Constable’s Report for the period from 1 April 2014 to 31 March 2015.

Sergeant B Gray, Police Scotland, gave a presentation on the Chief Constable’s Report during which he provided an overview of Police Scotland’s licensing structures and operations at a national and local level. He noted that over the period 1 April 2014 to 31 March 2015 the Service’s Highland Division had processed a total of 3,543 enquires within the Board’s area. He also provided a summary of activity under the main headings contained in the Chief Constable’s Report in regard to protecting children from harm by preventing the sale or supply of alcohol to children or young people, ongoing test purchasing operations, tackling serious and organised crime, and proposed activity for the coming year.

During discussion, Members raised the following points:-

• the opportunities to roll out Inverness BID’s Best Bar None scheme to other areas in the Highlands; Sergeant Gray advised that he would investigate this matter further in conjunction with the Council’s Inverness City Manager;
• that given that there were a total of 1,230 licensed premises in the Board’s area the number of offences in relation to licensing in the Highland area was low and this was welcomed; and
• the importance of the Board, Licensing Standards Officers, Police Scotland and licensees continuing to work in partnership to address any problems arising.

The Board NOTED the Report. 

8.  Highland Licensing Board Equality Strategy 2013-17
Ro-innleachd Cho-ionannachd Bòrd Ceadachd na Gàidhealtachd 2013-17

There had been circulated Report No HLB/101/15 by the Clerk to the Board providing an update on the Board’s Equality Strategy 2013-17.

The Clerk advised that the Strategy contained a number of equality outcomes and that in 2014 he had been invited to take part in an ‘Improving Equalities Outcome Project’’ organised by the Equality and Human Rights Commission (EHRC) on the basis that the organisation considered the Board’s Strategy would benefit from some improvement. As a result it had become apparent that a number of Boards did not have their own Strategy and instead were part of their Council’s Strategy. Therefore, working closely with the Council’s Equality Officer, the Board’s Outcomes had been conjoined with those of the Council as shown in Appendix 1, and these had been submitted to and approved by the EHRC. It was suggested that in due course the Board’s Strategy also be incorporated into the Council’s although it was important to note that the Board would retain its own Outcomes. 

The Clerk also provided an update on the progress to date with the Outcomes as detailed in the Report, and in particular the requirement for all Board Members to complete their equalities training. He advised that he was aware this was being progressed through the Council’s Outcomes and asked that Members advise him once they had completed their training so that he could update the Board’s Outcomes. 

The Chair advised that it was anticipated that all Board Members would have completed their equalities training by the end of the year. 

Thereafter, the Board AGREED:-

i. the revised Outcomes and their amalgamation with the Council’s;
ii. that in future the Board’s Strategy will be amalgamated with the Council’s; and
iii. to note the progress made with the Outcomes.

9.  Licensing (Scotland) Act 2005
Applications for New Premises Licences
Achd na Ceadachd (Alba) 2005
Larrtas airson Cheadachdan Thogalaichean Ura

9.1 Ref: HC/INBS/580
Applicant: Harrapool Ltd, Clava House, Cradlehall Business Park, Inverness, IV2 5GH
Premises: The Top Shop, Post Office Building, Broadford, Isle of Skye, IV49 9AB
Type: Off Sales

There had been circulated Report No HLB/102/15 by the Clerk inviting the Board to determine the application.

The Board AGREED to grant the application subject to the mandatory conditions.

10.  Licensing (Scotland) Act 2005
Applications for Provisional Premises Licences
Achd Ceadachd (Alba) 2005
Iarrtas airson Ceadachdan Thogalaichean le Cumha

10.1 Ref: HC/INBS/583
Applicant: Black Isle Brewing Ltd, per David Gladwin, Taeblair, Munlochy, Ross shire IV8 8NZ.
Premises: Black Isle Bar, 68 and 68A Church Street, Inverness IV1 1EN
Type: On and Off Sales

There had been circulated Report No HLB/103/15 by the Clerk inviting the Board to determine the application.

On hearing from Mrs L Murray for the applicant, the Board AGREED to grant the application subject to the mandatory conditions and the local and special conditions detailed at paragraph 7 of the Report.

11.  Licensing (Scotland) Act 2005
Applications for variation (major) to Premises Licences
Achd Ceadachd (Alba) 2005
Iarrtasan airson Caochladh (Mòr) a thaobh Ceadachdan Thogalaichean

11.1 Ref: HC/INBS/527
Applicant: Simpsons Highview Limited, Highview House, Inshes, Inverness IV2 5BA per Macleod and MacCallum, 28 Queensgate, Inverness IV1 1YN.
Premises: Simpsons Garden Centre, Inshes, Inverness IV2 5BA
Type: On and Off Sales.

There had been circulated Report No HLB/104/15 by the Clerk inviting the Board to determine the application.

On hearing from Mr G Watson for the applicant, the Board AGREED to grant the application subject to the mandatory conditions.

11.2 Ref: HC/INBS/156
Applicant: B and L Properties (Scotland) Ltd, MacFarlane Grey House, Castlecraig Business Park, Springbank Road, Stirling FK7 7WT per Inn Business Scotland Ltd, Forsyth House, Lomond Court, Castle Business Park, Stirling, FK9 4UU.
Premises: The Kitchen Restaurant, 15 Huntly Street, Inverness IV3 5PR.
Type: On Sales

There had been circulated Report No HLB/105/15 by the Clerk inviting the Board to determine the application.

Mrs L Murray, for the applicant, advised that in regard to the outdoor drinking area she understood that the issues with the pavement permit had been resolved with the Council’s Community Services, and that the application would be amended accordingly to reduce the outdoor drinking area to the area covered by her client’s pavement permit.

The Board AGREED to grant the application as amended by the applicant (to reduce the outdoor drinking area to the area covered by the applicant’s pavement permit) subject to the mandatory conditions.

11.3 Ref: HC/INBS/142
Applicant: The Partnership of Andrea Raynsford and Mark Robertson, The Star Hotel, 3 Church Street, Nairn, IV12 4AP per Andrea Raynsford.
Premises: The Star Hotel, 3 Church Street, Nairn IV12 4AP
Type: On and Off Sales.

There had been circulated Report No HLB/106/15 by the Clerk inviting the Board to determine the application.

The Depute Clerk reported that a timeous written representation and objection had been received from Ms W Taylor, and Ms S Johnson and Mr A Buchanan respectively and that although they were not present at the meeting, the Board was required to take the terms of their representation/objection into account in their determination of the application.

The Licensing Standards Officer clarified that the applicant had submitted a noise management plan and, on being reviewed by the Council’s Environmental Health Officers, it was considered to provide robust mitigation in regard to any potential noise issues. Those parties which had submitted an objection/representation to the application had also confirmed to him that they were content with the recommended conditions designed to mitigate any noise impacts as set out in the Clerk’s report.

Thereafter, Ms A Macdonald, for the applicant, advised that a number of additional noise measures had been deployed at the premises which included the purchase of a noise measurement device to ensure levels did not exceed the relevant limits, doors and windows being kept closed at all times, and the display of posters within the premises. She advised that the door stewards would also remind patrons to be considerate in terms of noise when exiting the premises and that customers would also be offered lollipops upon leaving the premises which was a measure widely used in the trade to reduce the level of noise generated by guests dispersing at the end of an evening.

During discussion, Members raised the following points:-

• concern in regard to any potential noise nuisance arising from smokers congregating outside the premises; the Licensing Standards Officer explained that in discussion with the applicant it had been agreed that the smoking area would be located in a quadrangle at the centre of the premises; 
• that it was important that the premises maintained a dialogue and good relations with neighboring residents; and 
• it was suggested that the measures to be put in place would provide sufficient mitigation in regard to any noise issues and that the application be granted.

The Board AGREED to grant the application subject to the mandatory conditions, the local and special conditions detailed in paragraph 8 of the Report and the removal of existing local condition I.

12.  Licensing (Scotland) Act 2005 Section 74
Hearing to consider and determine applications for personal licence
Achd Ceadachd (Alba) 2005 Earrann 74
Èisteachd gus beachdachadh air iarrtasan airson ceadachd phearsanta

12.1 Applicant: Liam Chalmers

There had been circulated Report No HLB/107/15 by the Clerk concerning an application for a personal licence received from Liam Chalmers. Under Section 73 of the Act, Police Scotland had timeously intimated that they objected to the application. A copy of the letter received from Police Scotland dated 14 August 2015 was attached as Appendix 1.

The Depute Clerk advised that notification had been received from Mr Chalmers that he had been delayed on his way to the meeting and in the circumstances she suggested the hearing be postponed to the next meeting. 

The Board AGREED to postpone the hearing to the Board meeting on 3 November 2015. 

12.2 Applicant: Alister Stuart Mitchell

There had been circulated Report No HLB/108/15 by the Clerk concerning an application for a personal licence received from Alister D Mitchell which advised that, under Section 73 of the Act, Police Scotland had timeously intimated that the applicant had convictions for relevant offences which were not declared on the application. A copy of the letter received from Police Scotland dated 8 September 2005 setting out Mr Mitchell’s unspent convictions and objecting to the application was attached at Appendix 1.

The Depute Clerk explained that currently there was as yet no provision for a fit and proper person test within the Licensing (Scotland) Act 2005 and that the Board was required to determine the application having regard to whether, on the basis of the evidence, the Board was satisfied that it was necessary to refuse to grant the application for the purposes of any of the licensing objectives, particularly those of crime prevention and securing public safety. She advised that Members may have regard to all of the convictions listed in the Police objection on the basis that under the provisions of the Rehabilitation of Offenders Act 1974 these convictions were unspent and would remain live until February 2016. The Board should take into account the nature, age and gravity of the offence and the length of time between the last offence and the application.

The Depute Clerk further advised that the Board was entitled to have regard also to the incidents listed in the Police objection where the applicant had come to their attention but which had not resulted in court proceedings, but should consider what weight should be attached to this evidence.

Mr Mitchell then spoke in support of his application, during which he explained that he had suffered from an alcohol problem over the period he had incurred the convictions detailed in the Police objection. He had subsequently addressed this problem, having learned his lesson from the past. He had been employed at the County Tavern, Dingwall for a number of years with no issues arising and his employer, Mr R Graham, was present to speak in support of his application.

Mr R Graham advised that Mr Mitchell been employed at the County Tavern, Dingwall for the past fourteen years and was an honest and reliable employee. Mr Mitchell had never consumed alcohol while working at the premises and ran the business in a reliable manner on those occasions when Mr Graham was absent. He trusted Mr Mitchell implicitly and therefore had no hesitation in supporting his application for a personal licence.

Sergeant B Gray then spoke in regard to Police Scotland’s letter of objection to the application during which he read out the full terms of the letter and the list of offences and incidents contained therein. He cautioned that while he appreciated that it was nine years since the last offence/incident occurred, Police Scotland remained concerned at the level of violence and continual course of conduct displayed by the applicant at that time. The Chief Constable therefore recommended that the application be refused having regard to the licensing objectives of crime prevention and securing public safety. 

During discussion, Members raised the following issues:-

• that while accepting that it was nine years since the applicant had come to the attention of the Police, it was concerning that he had demonstrated violent behaviour and been involved in vandalism in the past and Members questioned whether it was appropriate to grant a licence which involved the applicant working in a licensed premises; in this regard the Depute Clerk advised that the applicant was already entitled to work in a licensed premises without a personal licence and that the Board must determine the application, having regard to the licensing objectives;
• it was suggested that on balance the application should be granted taking into account the endorsement by the applicant’s employer together with the length of time since the last offence in 2006 and the fact the applicant appeared to have addressed his alcohol problem in a positive manner; and
• it was also suggested that the grant of a licence would give the Board more control in terms of the powers it could exercise if there were any issues arising in regard to the applicant’s future conduct and it was important that the applicant understood that if there were any issues arising in connection with his personal licence these would be brought back to the Board.

Thereafter, the Board AGREED to grant the licence.

12.3 Applicant: Abdul Rahib Thayatheyil

There had been circulated Report No HLB/109/15 by the Clerk concerning an application for a personal licence received from Abdul Rahib Thayatheyil and which advised that, under Section 73 of the Licensing (Scotland) Act 2005, Police Scotland had timeously intimated that they objected to the application. A copy of the letter received from Police Scotland dated 8 September 2005 was attached at Appendix 1.

The Depute Clerk explained that currently there was no provision for a fit and proper person test within the Licensing (Scotland) Act 2005 and that the Board was required to determine the application having regard to whether, on the basis of the evidence, the Board was satisfied that it was necessary to refuse to grant the application for the purposes of any of the licensing objectives, particularly those of crime prevention and securing public safety. She advised that in this case there were no unspent convictions contained in Police Scotland’s letter. She indicated that there were two incidents where the applicant had come to attention of the Police but which had not resulted in court proceedings. The Board was entitled to consider those incidents but should decide what weight should be attached to this evidence. For clarity she confirmed that these incidents were listed in the Police letter as having occurred on 15/05/2012 (NE/6251/12) and 17/06/2013 (NE/7999/13).

Thereafter, the Depute Clerk advised that there was a considerable number of intelligence entries listed in the Police objection and she asked Sergeant Gray to clarify if any of these entries related to spent convictions, because the Board could not have regard to any entries which related to spent convictions. In addition many of the intelligence entries were not sufficiently specified to allow the applicant a fair opportunity to understand what was being alleged so that he could then respond to the allegations andbe given a fair hearing. Accordingly further details were required from the Police in regard to the time, place and nature of the allegations. In addition there were also intelligence entries listed in the Police letter which did not suggest criminal activity or inappropriate behaviour on the part of the applicant and she advised the Board to disregard these entries.

Mr Thayatheyil then spoke in support of his application during which he advised that due to an oversight his employer had failed to renew his own personal licence and that it had been revoked by the Board. In the circumstances his employer had asked him to apply for a personal licence.

Sergeant B Gray then spoke in relation to Police Scotland’s letter of objection during which he redacted specific information contained in the letter taking into account the advice of the Depute Clerk in regard to information relating to spent convictions. He submitted that the remaining entries demonstrated that the applicant had a propensity towards offences of a sexual nature and that he had issues with alcohol. The Chief Constable therefore recommended that the application be refused having regard to the licensing objectives of crime prevention and securing public safety.

In response, Mr Thayatheyil indicated that he had been unaware of the intelligence entries about him until he had received a copy of Police Scotland’s objection to his application for a personal licence. He advised that the allegations were entirely false and were being made by the same individual for malicious reasons. He submitted that he was a family man with four young children and that he had not had an alcoholic drink for approximately two years. He also stated that he was currently employed at Bengal Cuisine restaurant in Alness and that he had not been employed at any other premises in the town.

The Depute Clerk advised that in regard to the intelligence entries and taking account of Sergeant Gray’s redactions, those remaining entries were lacking in specification to the extent the Applicant could not be given a fair opportunity to address each entry and therefore be given a fair hearing. She suggested that to have regard to any of these entries would be in breach of the Applicant’s human rights and advised that these intelligence entries be disregarded. The Board should therefore only consider the two incidents where the Applicant had come to the attention of the Police but which had not resulted in court proceedings. The Board should decide what weight should be attached to these incidents taking into account the nature, age and gravity of the alleged offence and the length of time between the last alleged offence and the application.

Thereafter, Sergeant B Gray explained that to protect informants he did not receive information on the source of intelligence entries. He also referred to three specific entries which he suggested cast doubt on the applicant’s claim to the Police that he had stopped drinking and would refrain in future. This included an incident on 14/01/2013 when on being stopped by Police, alcohol had been detected on the applicant’s breath, although Sergeant Gray acknowledged that the applicant’s breath test reading had been below the legal limit at that time.

In response to questions from Members, Sergeant Gray advised that in regard to the above incident, the reading from Mr Thayatheyil’s breath test had been 21mgs, against the legal limit at that time of 35mgs. He advised that the current legal drink driving limit was 22mgs.

In response to further questions, a point was raised in regard to whether the applicant was on the list of registered sex offenders. Sergeant Gray advised that in accordance with the advice given by the Depute Clerk, he had redacted any intelligence information which may relate to a previous spent conviction in this regard. The Depute Clerk advised that for clarity her advice to the Board was that they must disregard any circumstances which may have led to a conviction which was now spent. 

During discussion, Members raised the following points:-

• that in accordance with the Depute Clerk’s advice the intelligence entries should not be taken into consideration in the determination of the application due to the lack of detail provided in regard to these allegations; 
• the Board could therefore only have regard to the two incidents in 15/05/2012 and 17/06/2013 as referred to above where the applicant had come to the attention of the Police but which had not led to court proceedings and it was suggested that there were no legal grounds for the Board to refuse the application based on these two incidents in terms of there being any conflict with the licensing objectives;
• it was suggested that given the applicant’s statement that he was a family man with four young children who refrained from drinking alcohol, that he be given the benefit of the doubt and that the application be granted; and
• it was important that the applicant understood that if there were any issues arising in connection with his personal licence this would be brought back to the Board.

The Board AGREED to grant the licence.

13. Surrender of Premises Licence
Gèilleadh Ceadachd Togalaich

13.1 Premises: Acharacle Stores, Acharacle
Licence Holder: Wendy MacGillivray

The Board NOTED that the above premises licence had been surrendered in terms of terms of Section 28(5)(f) of the Licensing (Scotland) Act 2005.

The meeting ended at 2.25pm.