Agenda item

Application for review of a premises licence.

RECEIVED the application made by the Licensing Authority for the review of the Premises Licence LN/200500760 held by Mr Mehmet Kolo at the premises known as and situated at Ordnance Supermarket, 115 Ordnance Road, Enfield, EN3 6AF.

 

NOTED

 

1.    The introductory statement of Ellie Green, Principal Licensing Officer, including:

a.    Mr Mehmet Kolo had been the Designated Premises Supervisor (DPS) and Premises Licence Holder (PLH) since January 2016.

b.    The current Premises Licence permitted 24 hours daily opening, and alcohol off sales from 08:00 to 23:00 Monday to Saturday and 10:00 to 22:30 on Sunday. The licence conditions were set out on pages 61/62 of the agenda pack.

c.    On 13/01/17 an application was made by the Licensing Authority for the review of the Premises Licence, in relation to the prevention of crime and disorder licensing objective as the premises had been found to be supplying illicit goods (tobacco) on two occasions within three months. The Licensing Authority considered that it was now appropriate, for the promotion of the licensing objectives, to revoke the licence. The review application was set out on page 65 of the agenda pack.

d.    The review application was supported by the Metropolitan Police Service. The Police representation was set out on page 103 of the agenda pack. Unfortunately PC Kathy Staff was unable to attend this hearing due to illness.

e.    In response to the review application, a statement and supporting evidence was received from Mr Kolo, from page 105 of the agenda pack, via the agent Gulsen & Co Solicitors.

f.     Mr Kolo was in attendance at this hearing, represented by Mr Michael Rogers, Counsel, and with an interpreter.

 

2.    The statement of Charlotte Palmer, Senior Licensing Enforcement Officer, including:

a.    The reason for bringing this review was not because of a breach of conditions of the licence, but because Police had witnessed people coming into the premises and asking for the cheap cigarettes in March 2016.

b.    A warning letter was sent to the premises 24/03/16, as set out in Appendix 2 of the report. Despite this warning, a sale of non-duty paid cigarettes was made in a test purchase by a plain clothes police officer. The cigarettes were taken from the tobacco sales display behind the normal cigarettes.

c.    A minor variation application was submitted following this, to strengthen licence conditions voluntarily. In the minor variation letter of 20/10/16 as set out in Appendix 6a-b, there was a further warning in respect of future conduct. It was advised that should further similar offences be committed at the premises, the Licensing Authority would take immediate action in order to have the premises licence permanently revoked and/or to prosecute.

d.    Despite this, non-duty paid goods, with Polish markings, were found in the pockets of the PLH on 06/12/16 during a search by council officers, HMRC officers and sniffer dogs. The amended licence had not even been issued before the next lot of non-duty paid tobacco was found: the PLH was not expected to be working with a pocket full of non-duty paid goods. On 06/12/16 Mr Kolo agreed to provide the CCTV footage. He denied the allegation that items were thrown over the wall outside the premises. Having CCTV was not a licence condition.

e.    Mr Kolo stated that on only one occasion were non-duty paid cigarettes sold. It should be noted that DCMS guidance was that where reviews arose and the licensing authority determined that the crime prevention objective was being undermined through the premises being used to further crimes, it was expected that revocation of the licence – even in the first instance – should be seriously considered.

f.     A licence had previously been revoked for the same premises, and there must have been awareness of this. Mr Kolo had shown a disregard for the law. The Licensing Authority no longer had confidence in those running the premises and recommended revocation of the licence.

 

3.    Charlotte Palmer responded to questions including:

a.    In response to the Chair’s query regarding the time of the appeal against the decision in September 2015, Charlotte Palmer advised that parties were at the court when the agreement was made between the two parties. She had been in attendance, but the discussions mainly involved Legal representatives. In the background there was discussion in respect of the licence being transferred to someone else.

b.    The Chair referred to the email from Gulsen & Co Solicitors to Martyn Fisher on 07/09/15, and Charlotte Palmer advised that she interpreted the phrase “as such Mr Ibrahim Korkmaz will have no involvement in the business whatsoever” to mean that Mr Korkmaz would not work at the premises, and would have absolutely no connection with the business; any involvement with the business by Mr Korkmaz in any capacity would terminate as of the time of suspension of the licence in 2015.

 

4.    The statement of Mr Michael Rogers, Counsel, on behalf of Mr Mehmet Kolo, PLH / DPS, including:

a.    The basis of the application was not focussed on any allegation of breach of licensing conditions, and so his statement would not address any mention of conditions.

b.    The 2015 revocation decision occurred when the premises was owned and operated by a different individual: Mr Baris Salman. Mr Kolo became involved later, when it was suggested he became DPS when the letter in Appendix 1 was written. Mr Ibrahim Korkmaz had been a personal licence holder and had worked at the premises, but was not the DPS at the time the review was submitted in October 2014. Ellie Green clarified that from July 2005 Mr Salman was DPS and that Mr Korkmaz and Mr Salman were joint Premises Licence holders.

c.    Mr Kolo purchased the business from Mr Salman. Mr Kolo understood that Mr Korkmaz was an employee and would continue to be employed by the business, as described in the witness statement of Mr Kolo (Annex 05). The purchase was made in January 2016 but was formally completed in March 2016.

d.    For clarification requested by the Chair, it was confirmed that up to the point of appeal in September 2015, Mr Korkmaz and Mr Salman were the PLH’s named on the licence. Mr Korkmaz worked in the premises and was named on the licence.

e.    After Mr Kolo took over the business in 2016, Mr Korkmaz was no longer named on the licence, but he continued to be employed there. The witness statement described that Mr Korkmaz was known to Mr Kolo as he was his sister’s partner and the three lived at the same address. Mr Kolo did not have any specific concerns regarding Mr Korkmaz at that time or since.

f.     For clarification requested by the Chair, it was advised that at the time of the original transfer application in September 2015 the Police had concerns in respect of Mr Kolo and his relationship to Mr Korkmaz, and the email from the solicitor was sent on 07/09/15. However, that transfer application was withdrawn. A second transfer application was granted on 26/01/16. The solicitors’ email was in respect of a transfer that did not subsequently proceed, and that undertaking expired. If the intention of the Licensing Authority was that Mr Korkmaz should have no involvement with the business, a condition to that effect would have been expected on the licence.

g.    Mr Kolo, having had the opportunity to consider all the correspondence, accepted that it was unwise to continue to employ Mr Korkmaz, but has had no difficulties with him in the shop.

h.    On 21/09/16 a test purchase took place. Mr Kolo dealt with that in para 9 of his witness statement. He established that the member of staff present on that day was Mr Duran Haligur, who sold the illicit tobacco. Mr Kolo took immediate disciplinary action, giving a final oral warning so that Mr Haligur was in no doubt that if he sold any other illicit material he would be dismissed. There had not been any repeat of that behaviour and so Mr Haligur continued to be employed.

i.      There had been a number of visits to the premises, on 23/09/16, 14/10/16 and 02/12/16 and on each of those occasions there was no sale of illicit tobacco identified. That was because Mr Kolo took appropriate measures with his employees and with his obligations.

j.      The occasion of 06/12/16 was dealt with in para 12 of Mr Kolo’s witness statement. Mr Kolo had been out of the premises when the inspection started, and arrived at the premises half way through the search and spoke to officers. He had been to the cash and carry that day. He accepted that he had tobacco on him and packets of cigarettes that he had purchased earlier in the day for the consumption of himself and his sister. There was no suggestion of any sale to an under cover officer. The allegations made by the dog handler were difficult to analyse as there was no further detail. Mr Kolo had advised that it was common for staff to dispose of boxes by taking them out of the shop and taking them elsewhere for appropriate disposal. That is what he believed his staff were doing that day: disposing of boxes, and there was nothing untoward about that. Officers asked Mr Kolo for the keys to the van, which he provided. The van was searched and nothing was found of interest. The Licensing Authority representation additional information also mentioned a car belonging to Mr Okkes Karakil, which seemed to refer to a different vehicle. Mr Kolo had confirmed that Mr Karakil had been employed at the shop previously and lived above the premises and had advised that Police should contact him directly if they wanted to search the vehicle. References to staff denying having a key to that car were not surprising if it was Mr Karakil’s car. A box in the storage area identified by the sniffer dog contained empty tobacco wrappers and there was nothing prohibited or untoward in that. An officer had requested CCTV footage. Even though he was under no obligation, Mr Kolo had 13 cameras and retained recordings for 30 days, and on 13/12/16 he provided footage as requested. He heard nothing more until January 2017 and at that stage any further CCTV footage from 06/12/16 had been destroyed, which was not unreasonable. Mr Kolo had advised that he did not receive an email to request further footage.

k.    Mr Kolo had taken swift disciplinary action against an employee found to be selling illicit tobacco, and he had explained what had taken place on 06/12/16. On that visit there was no evidence of any individuals selling any illicit tobacco in the shop. There was no breach of any licensing requirements.

l.      Mr Kolo accepted the importance of the DCMS guidance and supported the licensing objectives.

m.   In respect of the Licensing Sub Committee, the steps taken should be an appropriate and proportionate response. He would suggest that revocation of the licence would not be a proportionate response in these circumstances. In the alternative the sub-committee could consider suspension of the licence for a period of time not exceeding three months. If the sub-committee were minded to suspend the licence he would suggest suspension on the basis that the DPS was changed; that conditions in respect of CCTV as set out on page 71 of the agenda pack were added to the licence; and if there were still concerns regarding Mr Korkmaz, that a condition be added that he was not to be employed at the premises.

 

5.    Mr Rogers and Mr Kolo (with interpretation assistance) responded to questions as follows:

a.    In response to Councillor Charalambous’ queries regarding the test purchase on 21/09/16 and discrepancies between Mr Kolo’s witness statement and officers’ description, Mr Rogers advised that he had checked with Mr Kolo that he had full understanding. Mr Kolo had investigated what happened, and the reference to “from Mr Haligur’s personal use” related to where the cigarettes came from. Mr Haligur brought them into the shop. Mr Kolo did not dispute that the officer found the employee selling the cigarettes and these were on the display behind the normal cigarettes. The reference to personal use meant that the employee brought them into the shop himself, but Mr Kolo was not there at the time and there was no further evidence.

b.    In response to Councillor Charalambous’ query regarding the officer visit on 06/12/16, it was advised that Mr Kolo accepted that he had non-duty paid cigarettes purchased that day, but he had no intention of selling them in the shop: they were for his and his sister’s personal use. The Chair asked if Mr Kolo had a receipt from where these cigarettes were purchased from. It was advised that Mr Kolo had paid in cash for those cigarettes and was not given a receipt.

c.    Councillor Charalambous asked if the business had a contract for its waste disposal, and how it usually disposed of waste. It was advised that the shop did have a contract with a waste disposal company but it involved them picking up waste every fortnight. Mr Kolo believed that on 06/12/16 employees were taking boxes to be recycled nearby.

d.    Councillor Vince noted that Mr Kolo’s English language use was limited and asked about his understanding of documents and the witness statement. Mr Rogers presumed that the documentation was translated back to him by an interpreter: this would be the normal arrangement. In response to further queries, it was advised that Mr Kolo was undertaking English tuition 3 hours per week. He arrived in the UK in August 2015 and was seeking to improve his English. When communicating with Police or Licensing Authority officers he was assisted by others employed in the shop whose English was better.

e.    With reference to the refusals book and who made the entries, it was advised that most of the time Mr Kolo completed the entries in the book and understood them. Sometimes another employee filled in the book, but Mr Kolo checked it. Mr Kolo could not be on the premises at all times, and there may be use of the refusals register when he was not in the shop. Charlotte Palmer confirmed that the wording of the condition would normally require the DPS to look at the refusals book regularly to ensure it was being completed, and sign it off and review to look for any patterns and highlight them with staff. It was noticed that some signatures in the register did look different. The last column should show the name of the person who made the refusal.

f.     The Chair asked Mr Kolo how long Mr Korkmaz had been the partner of Mr Kolo’s sister: this was confirmed as 8 years.

g.    The Chair asked how long Mr Kolo, his sister, and Mr Korkmaz had lived at their shared address: this was confirmed as since Mr Kolo arrived in the country.

h.    In response to a further query regarding Mr Kolo’s knowledge of Mr Korkmaz’s lengthy term as licence holder at the premises, Mr Rogers advised that Mr Kolo would have been aware when he arrived in the country but he was unable to confirm if he had knowledge at an earlier stage.

i.      In response to a further query regarding Mr Kolo’s knowledge of the previous revocation of the licence and its circumstances, given Mr Kolo’s application later withdrawn, it was confirmed that Mr Kolo accepted that he was aware of the revocation, but he was not aware of the full details of the appeal or of non-duty paid goods. Mr Kolo confirmed that he had been aware the licence was revoked but did not know the reasons for it at the time, but he did know now.

j.      The Chair queried the answers, highlighting that Mr Kolo made his application during the appeal period to take over the licence and become DPS, but moved on without response, and expressed that answers were not being given in sufficient time.

k.    The Chair highlighted Mr Korkmaz’s role at the licensing inspection visit and that he would expect the PLH to take responsibility in dealing with such a visit. Mr Rogers advised that the way it was described, Mr Kolo was serving in the shop at the time and relied on Mr Korkmaz to interpret. Mr Kolo would have been speaking, but as officers were using English, he would have been relying on interpretation from a colleague.

l.      The Chair asked where Mr Kolo had bought the cigarettes which were found on his person on 06/12/16. It was advised they were bought in the parking lot in front of the cash and carry. It was not suggested they were from a legitimate seller. They were not purchased from the cash and carry.

m.   The Chair highlighted that by December 2016, Mr Kolo had been PLH for a year, and questioned his wisdom in purchasing cigarettes with Polish markings. Mr Rogers did not think that was a question that Mr Kolo could answer, but confirmed that Mr Kolo understood that cigarettes purchased in this country must be labelled in English and be duty paid.

n.    In response to the Chair’s direct queries, Mr Kolo advised that he personally smoked a pack of 20 cigarettes per day and that his sister smoked about the same amount.

o.    The Chair asked why 17 packets of cigarettes were in his pocket on 06/12/16. Mr Kolo advised that he had intended to take them home to smoke at a later date.

p.    The Chair noted that cigarettes were openly available to Mr Kolo from the shop, and queried why he had made a purchase of cigarettes with Polish labelling with no receipt. It was advised that Mr Kolo accepted he had made a mistake: he had been tempted to purchase an inappropriate product for his own use. He had nothing further to add in respect of the choice not to utilise shop stocks.

q.    The Chair raised the description in Mr Kolo’s witness statement of the 02/12/16 visit by “the Trading Standards Team / HMRC”, but this was in fact a plain-clothed Police officer visit. Mr Rogers considered that Mr Kolo may have been notified subsequently, but having been party to the visit would have likely known the difference.

r.     The Chair queried whether Mr Kolo was at work on 06/12/16 as his statement described him outside the premises on the way home. It was clarified that Mr Kolo had been to the cash and carry and was not at the premises. Mr Kolo had returned to the premises on his way home, but was not the person serving that day.

s.    In response to Charlotte Palmer’s direct queries about the brands of cigarettes he smoked, Mr Kolo advised it was Marlboro; sometimes Red and sometimes Light. His sister smoked hand rolling tobacco Amber Leaf brand. In response to further queries, Mr Kolo said he had three sisters and that he was just buying tobacco for one sister.

t.      Charlotte Palmer asked why Mr Kolo had bought three types of rolling tobacco and two types of cigarettes. Mr Kolo responded that the person who had offered them for sale had them all in his hand and he had purchased them all. Brands smoked could be changed sometimes and did not have to be the same. The price was low and that is why he bought the goods.

u.    Charlotte Palmer asked about incidents on 06/12/16 when the dog handler witnessed staff throwing boxes over the wall and put into a car outside, but the car keys were not available to provide to officers when requested. Mr Kolo advised that staff did not put anything into a car, but that empty boxes were thrown out to the back yard.

v.    Charlotte Palmer raised that the hearing had been told that boxes were taken to be recycled and asked for more details of procedures. Mr Kolo advised that boxes were given to a recycling person who collected them, and the boxes were stored out at the back.

 

6.    The summary statement of Ellie Green, Principal Licensing Officer, including:

a.    Having heard the verbal submissions, it was for the sub-committee to consider such steps as it considered appropriate for the promotion of the licensing objectives. The steps were set out on page 56 of the report.

b.    Relevant guidance was highlighted on page 55 of the report.

c.    It was confirmed that on behalf of Mr Kolo, an additional possibility had been suggested by Mr Rogers of a suspension of the licence, a change to the DPS, and voluntary acceptance of additional conditions.

 

7.    The summary statement of Charlotte Palmer, Senior Licensing Enforcement Officer, including:

a.    Other than a condition in respect of CCTV, this premises licence already included all conditions which the Licensing Authority would seek.

b.    The issues at the premises did not just concern a rogue member of staff. The PLH/DPS was wearing a coat full of non-duty paid tobacco: this undermined the licensing objectives and any staff training and discipline. The PLH/DPS should lead by example.

c.    It was acknowledged that alternative actions had been offered on behalf of Mr Kolo. As a minimum, the sub committee should consider conditioning a change of DPS; and it was not appropriate for Mr Korkmaz to work at the premises; and officers would like a CCTV condition added to a licence, with a suspension of the licence for a period to ensure the premises was compliant.

d.    However, the Licensing Authority had no confidence in those running the premises and the recommendation remained to revoke the licence.

 

8.    The summary statement of Mr Michael Rogers, Counsel, on behalf of Mr Mehmet Kolo, PLH/DPS, including:

a.    Mr Kolo accepted that he made a mistake when he made the purchase on 06/12/16, and he did not lead by example. However, it was not suggested he was selling any illicit tobacco in the premises.

b.    His submission was whether the concerns were serious enough for revocation of the licence altogether at the premises, or as he suggested it would be more proportionate to take the alternative course of suspension of the licence, change of DPS and additional condition.

c.    In respect of CCTV, Mr Kolo already had 13 cameras in place and was close to complying with the suggested additional condition in any event.

d.    He confirmed that Mr Kolo was offering the alternative course of action: he understood that he made a serious mistake and that there would be concerns. He clarified that Mr Kolo was actively putting forward the alternative action being suggested.

 

RESOLVED that

 

1.         In accordance with the principles of Section 100(a) of the Local Government Act 1972 to exclude the press and public from the meeting for this item of business on the grounds that it involves the likely disclosure of exempt information as defined in Paragraph 7 of Part 1 of Schedule 12A to the Act.

 

The Panel retired, with the legal representative and committee administrator, to consider the application further and then the meeting reconvened in public.

 

2.         The Chairman made the following statement:

 

“Having considered all the oral and written submissions by all parties, and having considered the various answers provided to extensive questioning at the hearing, the Licensing Sub Committee (LSC) concluded that the matter before it was serious so that it was both appropriate and proportionate to uphold the application made by the Licensing Authority for revocation of the licence for Ordnance Supermarket.

 

This was the second occasion in comparatively recent times when an application to review the licence had been made – on both occasions for the same offence connected with the sale of illicit non-duty paid goods.

 

The LSC was satisfied that the Licensing Authority made its case persuasively and in full, with compelling evidence to support the basic fact that on two occasions, on 21 September 2016 and 6 December 2016, sales of non-duty paid tobacco were witnessed by HMRC officials and plain-clothed police officers, at the licensed premises with a proven track record of such criminal offences. The LSC was persuaded by the concluding arguments made in summary that the premises licence holder/ designated premises supervisor (PLH/DPS) inspired no confidence in his ability to operate the licence, and that by his own actions, had failed to lead by example and lacked both the training and capacity to hold or operate effectively this licence. The lack of responsibility was evidenced by the fact that on the 6 December 2016, the PLH/DPS was found to have been wearing a coat containing 17 packets of Polish labelled non-duty paid cigarettes, and other rolling tobacco. During questioning, the PLH/DPS admitted purchasing these illicit items from outside the cash and carry he had visited on the same day.

 

In considering the submissions made on behalf of Mr Kolo by his counsel at the hearing, and taking account of all the questions put to him, assisted by a non-professional interpreter, the LSC believed the case being made demonstrated an inconsistency between some of the written and oral statements. The responses were unconvincing, and at times stretched credulity to the limits, especially when he was unable to answer the most simplest of questions of which it would be expected of him to know. This lack of awareness further undermined the panel’s confidence in the management capabilities of the licence holder, and specifically his capacity to remain in the role of DPS.

 

By his own admission, three of the five people cited in Mr Kolo’s witness statement as being involved in the business at present, have direct connection to activities which individually and collectively undermine the prevention of crime and disorder, including Mr Duran Haligur, who made the sale on 21 September 2016. One of these people (Mr Ibrahim Korkmaz), we heard, was very well known to Mr Kolo, being a close family member of some eight years standing, who also shares the same address as the PLH/DPS, and who was one of the two licence holders at the time when that licence was revoked in January 2015 for similar offences of counterfeit sales from these premises.

 

We heard that Mr Kolo confirmed that Mr Korkmaz continued to be employed at the premises as a part time employee, even though, his current licensing agent, from the same solicitor firm at the time of the appeal hearing against the previous revocation, advanced then “that Mr Korkmaz would have no involvement in the business whatsoever”.

 

Although it acknowledged that the business characteristics between then and now are different, and that the two cases are separate, the LSC nevertheless felt that the decision by Mr Kolo to employ somebody, who himself had been found to have undermined the prevention of crime and disorder at the same premises, demonstrated a lack of judgement on his part and fostered a further lack of confidence by the LSC in Mr Kolo.

 

The LSC was particularly concerned by events of the 6 December 2016, when Mr Kolo was found to be in possession of 450g Hand Rolling tobacco, and 17 packets of cigarettes, being non-duty paid in nature, and with labelling in Polish. Our concern was enhanced by the evidence provided by Ms Charlotte Palmer that this was so soon after the minor variation submission for changes to the licence that the amended and strengthened conditions, allied to guidance previously provided in relation to counterfeit goods, had not even been applied to the licence. But Mr Kolo would clearly have been aware of issues pertaining to non-duty paid goods, given that he had held this licence since 26 January 2016, and been party to all the episodes of alleged irregular activities, the successive warnings and guidance that followed, and his own responsibilities conferred by holding a premises licence and being the designated premises supervisor.

 

Whether or not the tobacco products found in Mr Kolo’s coat pockets were for personal consumption (as asserted in his witness statement) by Mr Kolo and one of what we established through questions are three of his sisters, the LSC was unconvinced by Mr Kolo’s interpretation of events on that day. Under questioning, he admitted that he had purchased these products from a non-recognised source at a location “in front of the cash and carry”. Under additional questioning, Mr Kolo failed to explain why he chose to purchase cigarettes and tobacco of this nature from this supplier, without any receipt to demonstrate proof of purchase, and not from the reputable cash and carry in the immediate vicinity; or indeed when he had more than ready daily access to cigarettes on the shelves of his own store sufficient to satisfy the 20 cigarettes per day consumption that he told us was what he and his sister would typically smoke in a day.

 

Mr Kolo conceded through his counsel that this was a mistake. However, it was the view of the LSC that simply to purchase products of a kind he should know he is not allowed to sell in his own premises, especially being from a non-commercial source and supplier whom he could not verify, was ill-judged and irresponsible in whatever context.

 

This led to additional doubts on his understanding of licensing matters, and his competence, ability and capacity to assert and handle the responsibilities incumbent upon him as owner of and principal supervisor in premises licensed to sell tobacco and alcohol products, and manager of staff who need to be trained, under his leadership in all the matters bounded and conditioned by that licence.

 

Licensing Guidance is very clear (s 11.27) that there is certain activity that may arise in connection with licensed premises which should be treated particularly seriously. These include the use of the premises for the sale and storage of smuggled tobacco and alcohol.

 

Although the bulk of the hearing concentrated solely on the issues pertaining to the tobacco goods, the LSC did give some weight to the written evidence from the Licensing Authority provided on page 68 of the bundle, and in appendix 3, whereby on 29 March 2016 items of Polish and Turkish lager, none of which were labelled in English as required, were found both under the counter and in the outer store rooms. “Some of that foreign lager was on sale”.

 

Applying the next section of that same guidance (11.28), the LSC in this case has determined that the crime prevention objective was being and has been undermined. And considering that this was the second instance in which this has been found in relation to these premises, we arrived at the conclusion the weight of evidence was sufficient and compelling, and the circumstances were serious that we have accorded with the expectation expressed in the guidance that revocation is both appropriate and proportionate.

 

The LSC arrived at this view applying only the evidence provided in this case, noting purely as circumstantial, but giving no weight at all to, the relationship in every sense between the current PLH/DPS and the joint PLH of the licence from whom it was transferred in January 2016.

 

3.         The Licensing Sub-Committee resolved to revoke the licence.