Agenda item

To consider an application for the review of the Premises Licence for Tilson Stores, 40 Tilson Road London N17 9UY.

Preliminary Matter

It was raised by Mr Robert Sutherland, lawyer representing the License Holder, that the License Holder would have his son interpret for him and requested all parties take this into consideration when speaking. All parties agreed to pause to allow the License Holder’s son time to interpret for his father.

Licensing Officer

The Licensing Officer introduced the application for the review of the Premises Licence for Tilson Stores, 40 Tilson Road London N17 9UY - held by Zeynel Gunduz, which was received by the Licensing Authority on 25th June 2019. The applicant of the review was The Trading Standards RA, who cited the reason for the review was due to the operation of the premises failing to uphold the licensing conditions and licensing objective of (1) The prevention of crime and disorder and (2) The prevention of children from harm. The applicant spoke to ongoing concerns regarding operational failures to comply with ensuring duty paid products are stocked and the fact that illicit tobacco was found on the premises following previous action taken to work with the licence holder

The Trading Standards RA

The Officer representing the Trading Standards RA highlighted their detailed findings of the issues and concerns at the premises at pages 69 to 80. The Trading Standards had found the premises to be dealing in smuggled alcohol and tobacco which had no documentation or invoices to show their origins. The Trading Standards noted that such illicit goods were often smuggled into the country by criminal gangs.

The Committee were invited to revoke the License as the Trading Standards had no confidence the existing License Holder would change their behaviour.

Following a question from the License Holder’s legal representative, Trading Standards confirmed there was no suggestion that the illegal items sold at the premises were counterfeit.

Public Health RA

Concerns were raised by Public Health regarding the licensing objectives on crime and disorder, and the protection of children from harm. It was highlighted that:

• the premises had been supplying alcohol at a cheap price, which did not help to prevent antisocial behaviour and street drinking in the area.
• the failure of the premises to maintain a refusal log meant Public Health had a serious concern about the safeguarding of children as it was unknown whether the premises had refused to serve underage children.
• there was a children centre and academy in close proximity to the premises. This meant children could witness anti-social behaviour, which failed the Borough Plan to ensure that every child had the best start in life.

Public Health had no confidence the license holder would uphold the licensing objectives and invited the Committee to revoke the license. If the Committee were not minded to do so, Public Health invited it to impose their suggested conditions at page 101.

Premises

Mr Robert Sutherland, the lawyer representing the premises, started by noting the family who ran the premises wished to apologise to the Committee for this review as a consequence of the premises past failings.

In discussing how the business was to resolve and move forward, Mr Sutherland informed that Mr Zeynel Gunduz would not be involved with the running of the business. It was the intention to remove Mr Gunduz as the licence holder and for this to be transferred to his wife, Mrs Hatice Gunduz. It was also intended that the DPS be transferred to Mr Metin Arda, from Mr Gunduz. Mr Sutherland invited the Committee, if it considered it appropriate, to impose a condition requiring Mr Gunduz not be involved in any licensable activities at the business. With those mitigating actions in place, it was submitted that the Committee could be assured that the licensing objectives would be promoted and that it could have confidence that the licensing terms and conditions would be followed.

Regarding record keeping for training of staff, Mr Sutherland informed the Committee refresher training would be provided and recorded on a 6 monthly basis.

Regarding compliance, Mr Sutherland informed that Mrs Gunduz would ensure that Mr Gunduz did not return to the business.  The intention was for Mrs Gunduz to be present at the store daily for 2 to 3 hours. When Mrs Gunduz was not at the business, Mr Arda would be present and ensure Mr Gunduz did not return. Mr Arda was under instructions to notify Mrs Gunduz if Mr Gunduz returned to the premises, and she would instruct Mr Gunduz to leave. Mr Gunduz’s son would also be at the business when not undertaking his studies. Mrs Gunduz confirmed to the Committee that Mr Gunduz would not be involved with the business.  Mrs Gunduz gave assurances that she would comply with the premises licence and that she, along with Mr Arda, would take responsibility for the business.

Mr Sutherland submitted that, whilst no refusal log was kept, there was no evidence before the Committee to suggest that a child underage had purchased alcohol at the premises.

Following questions to the Applicant, it was noted:

• Regarding the experience of the proposed DPS, Mr Sutherland confirmed Mr Ardah had held a personal license for the previous 6 months and had been involved in the running of the store. Prior to working at the premises, Mr Ardah had worked at a similar establishment for 10 years. Mr Sutherland confirmed that Mr Ardah was present at the premises on 1st April, when Trading Standards visited the premises and found it to be dealing in smuggled goods.
• Regarding Mrs Gunduz experience, Mr Sutherland confirmed that she had worked at another establishment on a part time basis. Mr Sutherland stated she had the required knowledge to take over and would ensure that the conditions on the premises license would be complied with. Mr Gunduz confirmed this for the record. 
• Trading Standards confirmed that it would inform a business if it were unsuccessful in tests which checked to see if it was compliant with not selling alcohol to underage persons.
• Mr Sutherland noted that the purpose of including the letter dated 6th March in the supplementary pack was to highlight that the purchase of the stock from 75 Thackeray Avenue, predated 1st April. However, Mr Sutherland confirmed that his client had not completed the purchase of the shop. The stock had been sold to Mr Gunduz in a separate deal to the purchase of the shop, but Mr Sutherland accepted there did not exist a full stock take or complete documentation to support this.
• Mr Sutherland noted there was a condition on the Premises License which required Mr Gunduz to invoice all acquisition of alcohol. However, he claimed Mr Gunduz had not applied his mind to this and misunderstood the condition. As a result, this condition had not been fully complied with.
• Regarding not checking the stock to ensure it was legal, Mr Sutherland noted that Mr Gunduz’s defence to the court had been that someone else had checked the stock.
• Trading Standards was unable to confirm whether there was an ongoing  court case or whether there would be a new court case against Mr Gunduz.

Closing submissions were provided by:

Trading Standards - It was highlgihted by Trading Standards that there had been a number of issues at the premises since 2015, which included selling illegal alcohol and tobacco. Whilst the premises had signed up to the scheme to be a responsible retailer, it had continually failed to comply with those conditions. The continued issues demonstrated a continual failure by the premises to rectify its behaviour.

Premises - Mr Sutherland, representing the premises, stated it was correct that Mr Gunduz had been afforded opportunities in the past but had not availed himself of those opportunities. The proposal was to remove Mr Gunduz from the business completely. It was proposed that the licence be transferred to his wife, Mrs Hatice Gunduz, and she would ensure that the business would be compliant with the conditions on the premise licence. Mr Gunduz would also be replaced as the DPS by Mr Arda. Mr Sutherland reiterated that, despite Mr Arda working at the premises on 1^st April, there had been no suggestion he was involved in any acquisition of illegal items. Mr Arda would be responsible, alongside Mrs Gunduz, in acquiring new items, such as alcohol, from appropriate sources and records would be maintained and kept. If the Committee were not minded to revoke the licence, Mr Sutherland invited the imposition of the conditions suggested, as well as the condition set out by Public Health RA (page 113), if the Committee deemed those appropriate. If the Committee were minded to suspend the license, Mr Sutherland requested this be for as short term as possible.

The Chair thanked all parties for their participation and informed that a decision would be circulated within 5 working days.

DECISION

The Committee carefully considered the application for a review of the premises licence, the representations of Trading Standards, Public Health  and the licence holder, the Council’s Statement of Licensing Policy and the Licensing Act 2003 s182 guidance.

Having had regard to all of the representations,  the Committee decided it necessary for the promotion of the licensing objectives to revoke the premises Licence.

Reasons 

The Committee considered that having been convicted of offences relating to non duty paid alcohol and tobacco in 2016,  and having agreed to a minor variation to his licence conditions to add specific conditions about the  purchasing of alcohol from legitimate sources, obtaining receipts and  making those receipts available to the local authority, the licence holder Mr Zeynel Gunduz (ZG) would  have been in no doubt in April  2019 that the sale of illicit alcohol was an offence and  that such an offence would have put his licence at risk.

The Committee noted that the premises   had also been  unable to produce invoices  for Polish beer found  at the premises in September 2018 but  no action was taken.

The Committee was unconvinced by the explanation given about the source of the alcohol seized on 1^st April 2019 and no documentary evidence was provided that the seized alcohol had been purchased from Dem’s shop/Cansu . It also took a dim view of the fact that when first asked ZG  was not honest  regarding the availability and whereabouts of the  receipts for the alcohol,  albeit that he was dealing with a personal issue at the time.

Even if on the explanation of the source of the alcohol that was seized on 1^st April   is  as given by ZG,  he would  have been aware that the alcohol was acquired in breach of his  licensing conditions as he had received no proper invoices or receipts.

It is clear from the evidence from the  HMRC and Trading standards that  the non duty paid alcohol found on the premises on 1^st April 2019  represented   a total disregard by ZG of the need to promote the licensing objectives. Given the potential  risks  posed by non duty paid alcohol because of the harm it can cause to others and link with crime and antisocial behaviour,  the Committee had to consider the interests of the wider community in coming to its decision. 

The failure to keep a refusals register in January 2019 in breach of the licence conditions had undermined the licensing objective of protecting children from harm.

The Committee was satisfied on all of the evidence including ZG’s representations that there had been a breakdown in  due diligence  in respect  of sourcing legitimate products to be sold  by the business and a general lack of adherence to the licence conditions. The Committee was satisfied that this was as a result of both poor management by ZG the licence holder and DPS,  but also poor company practice/policy over a number of years. 

The Committee noted that the premises are currently keeping a refusals register, had  passed a test purchase on 23^rd July 2019 and that staff had undertaken training,  but this was  no more than would be expected of a responsible licence holder.

The proposal that ZG no longer be involved with the  licensable activities at the business and that he be  replaced as the licence holder by his wife, Mrs Hatice Gunduz  (HG) was considered by the Committee. The Committee was also  invited,  if it considered it appropriate, to impose a condition requiring ZG to no longer  be involved in any licensable activities at the business.

The Committee concluded that given that this was a family business that ZG owned,  it was not credible that ZG  would be removed from the business completely and ZG  himself had given no such assurances. The fact that it was suggested that HG and Mr Matin Arda (MA), the proposed new DPS would have to have a process in place to ensure that ZG  was kept away,  suggested that ZG would continue to seek to have some involvement in the running of the business and the licensable activities. The sourcing of goods for sale is not in any event something that would require ZG’s physical presence at the premises. Furthermore, as this is a family run business and  HG is ZG’s wife, she  was not sufficiently distanced from the  poor management of the business to satisfy the Committee that the licensing objectives would be upheld if she was the  licence holder.

The Committee  did not consider that the assurances given were credible or that it  would  be able to monitor  a condition that ZG  not be involved in the running of the business. It  therefore concluded that continuing the licence with HG as licence holder and  a condition that ZG  have no involvement  in the licensable activities,  would not prevent the licensing  objectives from being undermined.

The Committee considered whether to remove ZG  as DPS and the proposal to  replace him with MA. However,  it was noted that MA  was an employee of the business who was present at the premises on 1^st April 2019 when the alcohol was seized and would have probably known that he was selling  non priced,  non duty paid alcohol. He was not therefore untainted by transgressions that had led to the review and as an employee in ZG’s business the committee doubted that MA would be able to exercise his duties as DPS autonomously.

The  mitigating actions proposed by the licence holder did not therefore assure the Committee that the  licensing objectives would be promoted or that  the licensing terms and conditions would be adhered to.

In coming to its decision  the Committee had careful regard to the fact that criminal activity had taken place at the premises of a type which paragraph 11.27 of the statutory guidance advises should be treated particularly  seriously i.e. the sale or storage of smuggled tobacco and alcohol.

The Committee considered suspending the licence as a deterrent to the licence holder and to others  to prevent the future use of the premises for criminal activity,  whilst recognising that a suspension of the licence could have a serious financial impact on the licence holder’s business. However, it concluded that as ZG’s previous conviction had not acted as a deterrent to him and ZG had demonstrated on no less than 3 occasions non compliance with the  law and his obligations as a licence holder,   suspension would not be sufficient to promote the licensing objectives.

The Committee decided that revocation,  whilst not being imposed as a punishment, was the only appropriate and proportionate response to the issues giving rise to the need to review the licence,  that would promote the licensing objectives.

Appeal Rights 

This decision is open to appeal to the Magistrates Court within the period of 21 days beginning on the day upon which the appellant is notified  of the decision. This  decision does not take effect until the end of the appeal period or, in the event that an appeal has been lodged,  until the appeal is dispensed with.