Jersey Unreported Judgments

Licensing - reference by the Attorney General of a 7th category licence.

[2013]JRC069

Royal Court

(Samedi)

9 April 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham, Fisher, Kerley, Nicolle, Liston and Blampied.

IN THE MATTER OF REFERENCE BY THE ATTORNEY GENERAL PURSUANT TO ARTICLE 9 OF THE LICENSING (JERSEY) LAW 1974 OF THE 7^TH CATEGORY LICENCE OF CLUB (DRAGON) LIMITED

H. Sharp QC, Solicitor General, for the Attorney General.

Advocate R. S. Tremoceiro for Club (Dragon) Limited.

judgment

the deputy bailiff:

1.        This is a reference by the Attorney General of the 7^th category licence held by Club (Dragon) Limited ("the Licensee"), which holds the licence in respect of the premises the Live Lounge, Rue du Funchal, St Helier ("the Premises"), pursuant to Article 9 of the Licensing (Jersey) Law 1974 ("the Law").  Mr Flavio Olim ("Mr Olim") is the registered manager of the licence, as well as the beneficial owner of the Licensee. 

2.        The Solicitor General contended that there were a series of incidents during 2012 involving drinks promotions, drunken customers and violence on and about the premises which together represented an underlying culture or theme that the licence in respect of the premises was not managed in a responsible way.  He contended that drinking to excess was tolerated if not encouraged.  He advanced a number of illustrations of the different categories of complaint; in some cases the basic facts were admitted whereas in others they were not.  As a result, the Assembly heard evidence directly from a number of police officers of the States of Jersey Police, from Mr Olim, his doorman, a Mr Gomes, and from a customer of his who was the subject of one of the criticisms of management made by the Solicitor General. 

3.        As a matter of process, we record that there was agreement that the provisions of the Civil Evidence (Jersey) Law 2003 do not apply to the Licensing Assembly, and indeed that the Licensing Assembly is not a tribunal to which the strict rules of evidence apply.  It was contended that the Assembly is concerned with administrative processes relating to liquor licences, and indeed the approach that the Assembly was not governed by the strict rules of evidence was consistent with the power to receive information, which is a distinct and broader concept than evidence.  Similarly the fact that under Article 6(7) the Connétable is to be "heard" in respect of particular applications does not suggest that the strict rules of evidence apply. 

4.        Although we heard evidence on oath from a number of witnesses, we accept the broad thrust of these submissions of the Solicitor General which, as we say, were agreed by Advocate Tremoceiro. 

Drinks Promotions

5.        The Attorney General published in November 2010 a statement on drinks promotions.  It opened by referring to a decision of the Licensing Assembly in 1987 when giving judgment following a reference by the Attorney General in relation to a particular marketing or advertising practice which it was said constituted an inducement to consume alcohol to excess.  The Assembly had then indicated that licensees who used blatant schemes of this kind were not fit and proper persons to hold a licence, and marketing practices which constituted an inducement to consume alcohol to excess are contrary to the public interest.  The Attorney General's guidelines indicate that any promotion, pricing policy or other act that results in one or more alcoholic drinks being offered for sale at a price below the relevant stated price on the tariff displayed at the licensed premises as required by law is likely to result in a referral to the Licensing Assembly.  Examples given were an advertisement that a particular drink is sold at less than its stated tariff price, whether during certain hours of the day or on a particular day or days of the week; an advertisement where drinks are set at a particular price all night; a suggestion of "buy one get one free"; and free or reduced price alcoholic drinks on entry to the premises.  The Assembly has reviewed the Attorney General's guidelines and endorses them.  It is understood that a copy of those guidelines has been circulated through the Licensing Unit to licensees, and that a copy of the guidelines is or will be made available on the Law Officers' website.  At all events, it was not contended before us that the Licensee was unaware of the recommendations of the Attorney General in that statement. 

6.        The evidence given to us was that Mr Olim's attention had been drawn to these guidelines in November 2010 when he was given words of advice by two police officers, and again in February 2011.  He told the police officers he had received the most recent guidelines and read them.  Nonetheless, a series of promotions appeared during 2011 and 2012 - on 25^th November an advertisement for "TFI Fridays - the Happy Hours".  On 15^th February, 2012, and 28^th March, 2012, the advertisement was "Wednesday Night Project", mention being made of "Student Price Drinks!!!" an event "Out N Bad" on Friday 30^th March, 2012, was advertised and one response stated "£2.50 all drinks ... all night!  Oh yes...get on it!!!". 

7.        On Mr Olim's Facebook account, under the heading "Basic Information" it stated "Wednesday = Ladies Night All Drinks £2". 

8.        With many of the internet advertisements, comments made by others announced details which the advertisements themselves may not contain, such as the reference to all drinks costing £2.50 all night.  At one level, it can be said that the Licensee has not made the advertisements, and therefore has not breached the Attorney General's guidelines.  However, at another level it is clear that what is posted on the Facebook account demonstrates what in reality was actually happening - drinks were being offered all night at £2.50 each. 

9.        The Solicitor General wrote to Mr Olim on 14^th May, 2012, drawing his attention to the breach of these guidelines, and no such advertisements appear to have been posted since. 

10.      There were three features to Mr Olim's evidence in relation to these promotions.  The first was that he contended that he was not at fault in respect of postings made by others.  The second was that terms such as "student prices" and "happy hours" were used by other licence holders.  The third was that he had not deliberately breached the Law or the guidelines. 

11.      Having regard to the warnings Mr Olim was given, the Assembly was of the view that between February 2011 and May 2012 there was a knowing breach of the Attorney General's guidelines in relation to advertising drinks promotions. 

Drunkenness on the Premises

12.      The context of the specific occasions of which complaint was made is that with all licensed premises, the Licensing Unit expect some crime and disorder, but the Live Lounge featured disproportionately in these incidents.  There were in 2012 thirteen investigations by the States of Jersey Police into offences of being drunk on licensed premises.  Of these, four were for persons found in the Live Lounge.  In other words, nearly a third of all those investigated for breach of Article 82 of the Law in 2012 were patrons of the premises.  Similarly, during 2012 there were seventy six calls to Police Headquarters for attendance in Rue du Funchal - of these fifty three were alcohol related anti-social behaviour, assaults or public order. 

13.      Evidence was tendered by the Solicitor General in respect of a number of different incidents.  To the extent there was a suggestion that Mr Olim himself was under the influence of drink or drugs on a particular occasion when officers of the Licensing Unit attended on the premises, the Court was not satisfied that this was established.  In the absence of any other evidence, the Court accepts the evidence of Mr Olim that he neither drinks alcohol at work nor takes drugs. 

14.      The Court heard from one of Mr Olim's customers, who had fallen asleep in the Live Lounge on an evening when officers of the Licensing Unit attended.  We are clear that the customer in question had been drinking, although he may well not have been drunk.  We have not taken this incident into account in our deliberations other than to recognise there is no evidence that Live Lounge staff paid any attention to a customer sleeping on the premises. 

15.      On the other hand, on balance we are satisfied that in relation to the remaining five incidents put before us, the customer in question was drunk.  In particular we saw a CCTV recording of a young woman who was behaving in a sexualised manner.  We are in no doubt at all that she was drunk at the relevant time. 

16.      We also accept that on 4^th March, patrons who were exiting from the licensed premises were singing and shouting in the street as a result of the level of their drunkenness.  We accept that on 12^th May, there were three males who tried to gain access to the licensed premises, and were only refused entry after the police indicated that that course should be followed. 

17.      We accept the evidence that on 3^rd June, 2012, a particular customer was observed to exit the Live Lounge.  He was unable to stand unaided, fell and hit his head on the ground.  We accept that the customer who was observed on 19^th August to be heavily intoxicated such that he could not steady himself without leaning against a wall was served alcohol in breach of the requirements of the Law. 

Violence

18.      The Solicitor General put before us six occasions of violence at the Live Lounge between 19^th April and 14^th October, 2012.  The majority of the facts in connection with these assaults was accepted.  We cannot be sure of course that the violence was directly connected with the consumption of alcohol, but the fact that this took place on licensed premises does not suggest premises which were properly and responsibly managed. 

19.      In reaching our conclusions on these various matters, we noted that Mr Olim accepted there had been failings and that he was personally responsible.  He told us that he might not have appreciated in the early days how demanding the job was to manage licensed premises.  He had had two jobs until July last year, and he accepted that he might have been too tired to run the licensed premises entirely appropriately.  He said that he had learned the lesson that he must be more vigilant.  He pointed to training which he had put in place with different members of staff and documentation which showed that the staff had confirmed that they had relevant experience of the Law.  He emphasised that in his opinion he was not conducting his business very differently from the way in which other establishments were run. 

Discussion

20.      Our attention was drawn to the decision of the Assembly in relation to the reference of the Attorney General under Article 9 in respect of the AG-v-Mont Felard Hotel Limited [2005] JRC 104.  In that case the Attorney General's reference arose out of one single incident, and the Parish Centenier had described the premises as "an impeccably run family pub", a description confirmed by the then Head of the Licensing Unit who said that those were very well managed premises. 

21.      The relevant licences in that case were suspended for a period of one week which the Assembly thought was sufficient to mark the failures of the licensee and its staff on that occasion. 

22.      In the case of AG-v-Le Hocq Inn Limited [2006] JRC 078, the licensee had been guilty of gross breaches of its obligations, having an inadequate and inexperienced barman exercising sole responsibility for a public bar on a busy night, and no adequate system for the training of its employees.  The barman served alcohol to an individual who was drunk and who was later responsible for serious injury to a third party.  Since that occasion, the identity of the management had changed, and the premises were at the date of the hearing properly conducted.  The Assembly in that case suspended the licence for just under four weeks. 

23.      It is important that this Assembly should strive for consistency in handling matters of this kind in the same way as would a criminal court when dealing with criminal offences.  We think that the instant offences are worse than those described in the cases above. 

24.      In considering its powers under Article 9 of the Licensing (Jersey) Law 1974, it appears to us that the Assembly is bound to have regard inter alia to the considerations which are relevant to the grant of a licence in the first place.  In that connection, the Law requires that all applications should first be considered by a Parish Assembly so that the (Licensing) Assembly can be apprised of any matter which those living in the locality of the premises to be licensed consider relevant.  This consideration is given further meaning by the procedure which requires the Assembly to hear any person who spoke before the Parish Assembly in relation to the application. 

25.      There are two provisions of Article 6 which are relevant:-

"(9)     The Licensing Assembly, in deciding whether or not any application should be granted, shall have regard -

(a)       to the interests of the public in general;

(b)       to the nature of the business conducted or to be conducted on the premises sought to be licensed and the suitability of those premises for the conduct of that business,

and may grant a licence of a category different from that for which application is made

...

(12)     The Licensing Assembly may attach to any licence such conditions as, having regard to all the circumstances of the case may seem desirable, including, in particular, the designation of any bar as a public bar."

26.      Article 12 provides some general conditions of on-licences including:-

"(f)      No debauchery or drunkenness shall be permitted on the licensed premises;

(g)       Intoxicating liquor shall not be supplied to any of the following persons, namely -

(i)        persons under the influence of alcohol,

(ii)       police officers in uniform."

27.      The Law contains offences in relation to persons who procure or attempt to procure intoxicating liquor for consumption by a drunken person (Article 17) non-compliance by the holder of a licence with any condition or restriction on or subject to which the licence was granted (Article 79) and for any person found drunk or disorderly on any licensed premises (Article 82). 

28.      The provisions of Article 6(9) have historically been treated by the Assembly as requiring consideration to be given to the suitability of the prospective licence holder, the suitability of the premises, and any other interests of the public which are thought to be relevant to the grant of a licence in respect of the application premises.  Many years ago, the Assembly was not minded to grant licences unless satisfied there was a public need - accordingly, it was not unusual for off-licences to be refused if there were in fact other premises with off-licences in the environs of the application premises.  More latterly, that approach has been departed from, with the Assembly considering that it is not its function to act as a regulator of competition in the market place.  Nonetheless, the mandatory conditions imposed by Article 12 and the offences which the Law contains do point up the general interest of the public in preventing drunkenness where possible.  The Assembly considers that there is a real problem concerning the level of consumption of alcohol in this Island.  In the first place, there is the health aspect emphasised so clearly in announcements made by the Medical Officer of Health.  Secondly, there is the contribution which the excessive consumption of alcohol makes to violence and disorder.  Time after time, the Royal Court is faced with violence committed by a person who is very drunk and yet who has apparently been served with alcohol in a public house or nightclub despite his drunkenness.  Similarly there is a problem with alcohol being served to young people who acquire the habit of drinking.  We make these points because they are the background against which the present reference by the Attorney General is considered. 

29.      There is nothing new in this.  In the Mont Felard Hotel Limited reference (supra), Birt, DB said this:-

"19.    We wish to draw the following matters to the attention of the licensing trade generally. 

(i)        The Royal Court, sitting in criminal matters, frequently hears about assaults committed by persons who are under the influence of alcohol.  In many of these cases it must have been apparent to those serving the offender alcohol not long before the offence that he was well under the influence of alcohol.  Yet prosecutions of licensed premises are comparatively rare and references to this Assembly even rarer.  We urge the Licensing Unit and the Attorney General to take a proactive stance so as to refer matters to the Assembly where appropriate.

...

(iii)      The suspension in this case is a very short one because of the particular circumstances of the case and the fact that a negligible amount of alcohol was consumed on these premises by the offenders.  But it is vital that licence holders should understand that, if they wish to maintain their licences, they must abide by the conditions imposed by the Licensing Law.  In particular, they must not allow alcohol to be served to underage people or serve alcohol to intoxicated persons.  There is far too much binge drinking and drink fuelled violence in the streets of St Helier.  The licensing trade must play its part in seeking to combat this.  If the Assembly were to be faced with a case of a clearly intoxicated person being served with yet more alcohol and then going on to commit a serious offence of violence, the Assembly would certainly be looking to a period of months rather than weeks for a suspension or, in cases of repetition or particular seriousness, a complete revocation of the licence. 

(iv)      Training is an important part of this process.  In the present case we were told that Miss Edwards had undergone a training course in connection with the provisions of the Licensing Law.  However there was no formal record of this; merely an acknowledgement in the standard contract of employment that she had received training.  This is wholly inadequate.  It is the responsibly of licensees to ensure that all those whom they employ (whether full or part-time) are familiar with the responsibilities of a licence holder under the Licensing Law.  Furthermore there must be a suitable audit trail to show that such training has taken place and that the content of such training is adequate.  This requires a form of written record indicating that training has taken place and what form it has taken." 

30.      Not only do we endorse those comments, but we emphasise that in future references to this Assembly, we will be considering more serious penalties than have been imposed in the instant case and the licensing trade is given a warning accordingly.  This Assembly will not condone a culture of encouraging excessive consumption of alcohol.  The licensees, whoever they are, can contemplate lengthy suspensions of the licence or its complete revocation if such conduct were to be established.  The Licensing Unit is requested to keep a careful watch on those licensing outlets which appear to have been the regular drinking places for those who have committed criminal offences through drink immediately thereafter.  It is no excuse to say that the licence holder cannot be responsible for what happens after the patron has left the premises.  The licence holder is responsible if it is his conduct in serving alcohol to those who have already consumed too much which has any impact on the patron's misconduct thereafter. 

31.      The licence in this case is suspended for a period of two months.  In reaching this conclusion, we have taken into account the steps which the Licensee has taken since the beginning of this year, steps which we think do reflect a belated awareness of the need to ensure the terms of the Law are complied with.  

Costs

32.      The Solicitor General invited us to make an order for costs against the Licensee.  Advocate Tremoceiro submitted that we had no jurisdiction to make such an order, as the Assembly was not a court of law and the different pieces of legislation dealing with costs therefore did not apply. 

33.      For the avoidance of doubt, we reject Advocate Tremoceiro's submission.  The Assembly of the Bailiff, Governor and Jurats, which is the Assembly conferred licensing powers under the Law, is an Assembly which is centuries old.  At one stage it clearly had executive and legislative powers.  We are entirely satisfied that this Assembly has an inherent jurisdiction to make an award of costs.  In the present case we decline to do so because we think that the effect of a two month suspension on this particular licensee will have a significant financial impact.  However, we give notice to the licensing trade generally that the presumption in cases in future will be that costs follow the event, albeit the considerations which are relevant in any case in court are also likely to be relevant to cases brought before the Assembly. 

Authorities

Licensing (Jersey) Law 1974.

Civil Evidence (Jersey) Law 2003.

AG-v-Mont Felard Hotel Limited [2005] JRC 104.

AG-v-Le Hocq Inn Limited [2006] JRC 078.