Jersey Unreported Judgments

Licensing - Representation brought by the Attorney General

[2020]JRC242

Licensing Assembly

 

17 November 2020

Before     :

T. J. Le Cocq, Esq., Bailiff, and Jurats Blampied and Dulake

 

IN THE MATTER OF AN APPLICATION UNDER ARTICLE 9 OF THE LICENSING (JERSEY) LAW 1974

AND IN THE MATTER OF THE LICENCE HELD BY SALT & PEPPER POTS LIMITED IN RESPECT OF THE MARINA METRO HOTEL

M. Jowitt Q.C., Solicitor General on behalf of the Attorney General.

Mr G. Mayger (Manager of the Licence) for Salt & Pepper Pots Limited.

judgment

the bailiff:

1.        Salt & Pepper Pots Limited (the Licensee) holds a Licence of the Fourth Category (Comprehensive).  The matter of the Licence has been referred to this Extraordinary sitting of the Licensing Assembly for review pursuant to Article 9 of the Licensing (Jersey) Law 1974 (The Law).

2.        The Company was the Licensee of the Licence in respect of the Marina Metro Hotel and the registered manager of the Licence is Mr Geoffrey Mayger (Mr Mayger) who was also before us and who represented the Licensee.  The Licence is subject to a number of conditions including, of course, the general provisions of the Law which, at Article 12 sets out general conditions for on licences.  Of relevance to part of this application is Article 12(1)(d) which provides:-

"(1)     For the purposes of this Law an on-licence shall be deemed to be granted subject to the following conditions, namely that -

.....

(d)       Save by permission of the Bailiff, no dancing or cabaret shall be permitted or provided on the licensed premises except by or for persons residing therein and their bona fide guests or members of a club in respect of which a licence of the fifth category is held or guests of such members:

Provided that no such permission shall be necessary where the Bailiff has stated in writing that, in the Bailiff's opinion, permission is not required for the purposes for which it is intended that the premises should be used; ......"

3.        The Licensee has neither the permission of the Bailiff nor the statement provided for in Article 12(1)(d) and accordingly dancing on the premises is limited to those persons residing therein. 

4.        The Attorney General's representation brings to the Assembly's attention that the licence is being operated with disregard to the public health guidance related to COVID-19 and the conduct on the licensed premises includes:-

(i)        customers drinking other than whilst seated at a table;

(ii)       customers being served at the bar and waiting at the bar for tables to be ready;

(iii)      a lack of physical distancing;

(iv)      more than 40 people gathering together;

(v)       dancing;

(vi)      loud music.

5.        We are not considering for our purposes whether the activities brought to our attention amounts to offences under the COVID-19 Regulations or Orders, or indeed the Health and Safety at Work (Jersey) Law 1989 or constitute a nuisance under the Statutory Nuisances (Jersey) Law 1999.  We are concerned, however, whether the conduct of the licence holder in these circumstances is contrary to the interests of the public in general.  Article 6(9)(a) of the law provides:-

"(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)      ..."

6.        We do not, we think, need to detail a great deal of the evidence that was deployed before us.  We were shown a number of examples of video footage taken from the body worn cameras of police officers conducting visits to the premises in question.  Specifically, we were shown evidence taken on 6^th, 19^th, 23^rd, and 25^th September, 2020, on behalf of the Attorney General.  These examples were supported by statements made by the relevant officers visiting the licensed premises.  It is quite clear that at times to which the video footage relate, examples of all of the activities complained of and set out above could be seen.  There was clearly loud music, numerous people dancing on some occasions, a lack of social distancing and an apparent disregard for any of the guidance prepared to protect people during the COVID-19 pandemic.

7.        On 23^rd September, 2020, a discussion with Mr Mayger was also filmed.  He explained that he was operating a hotel that provided entertainment and on Friday and Saturday, there was live entertainment.  He explained that there was often an influx of people from 11.00 - 11.15 p.m., when the pubs closed and because the nightclubs were unable to open.  As a result, he had introduced door attendants to limit the people coming in.  He confirmed to the police that they do play loud music and they have allowed people to dance because people want to "jig around on the dance floor".  He said that a one-metre distance was impossible in the circumstances to manage.  He had not trained staff because he himself was present on the licensed premises. 

8.        The video footage of 25^th September, 2020, related to a wake following a funeral.  It is clear that there were at least 60 people present and Mr Mayger explained that in his view a wake was the equivalent of a funeral and therefore the numbers that he could entertain in his hotel was 60 (those who could go to a funeral) and not 40 which would be the limit that otherwise applied.  It was notable that there were people at the bar and it was impossible to maintain any form of social distance during that event.  There was no effort being made by the staff to get people to adhere to the guidance.

9.        Mr Mayger also resisted the idea that the Licensee held events.  It is clear to us, however, that there were events held and, indeed, we have seen the Facebook notifications which refer to specific live music events as being, "sold out."  If there are a limited number of individuals who wish to come and see a particular entertainer or listen to a particular type of music, which can be characterised as 'sold out', it is difficult in our view to see how that could not be characterised as an event which is not, of course, permitted to exceed 40 people within the appropriate guidance.

10.      Mr Mayger also played footage to us and often that footage, taken at earlier times of the day, illustrated that the premises were empty.  It should be said, however, that not all of the examples he showed us did illustrate that the Licensee was conforming to current guidance.  For example, on 12^th September, 2020, a number of people could be seen dancing and then after a particular song ended, the dance floor cleared.  Other individuals can be seen at the bar and no social distancing was being observed.

11.      We have not set out in full the evidence before us contained in either a statement or video footage.  It is clear, however, that letters of warning have been sent to the Licensee and the police have called on a number of occasions and warned the Licensee, through Mr Mayger that it was in breach of the guidance.  For example, on 9^th July, 2020, the Solicitor General wrote to Licensees indicating the importance of adhering to guidance.  We have seen a copy of the letter to the Licensee in this case.  On 28^th September, 2020, the Health and Safety Inspectorate wrote to the Licensee referring to a notice that had been served to prevent the risk to health caused by COVID-19 and holding by the Licensee of events and gatherings.

12.      We heard from Mr Mayger as well as seeing his responses on the video footage.  In summary, it appears to us that he viewed the guidance as entirely voluntary and that it was a sufficient enough reason not to conform with social distancing, limits on numbers, nor indeed the restrictions on dancing or otherwise because it was, after 11.15pm at weekends "too difficult".  He appeared to view the visits of the Police to see that the guidance was being upheld as an inconvenience and as making it difficult for him to operate his business and to conform to the guidance.  It was not clear to us why he could take this latter view.

13.      With regard to the provisions of Article 12(1)(d) of the Law, Mr Mayger said that he was not familiar with those provisions (a statement which we view with concern given the requirement of every registered manager to be familiar with the conditions of the Licences which are operated) but, in any event, he had taken "legal advice" to say that the guidance in connection with dancing had superseded the effect of the statutory provisions.  Mr Mayger was not legally represented before us and so we did not think it appropriate to explore this apparent advice with him.  Guidance can only further restrict what is permitted under statute, it cannot enlarge the permissions that the statute affords.

14.      Mr Mayger also seems to hold the view that a wake is indistinguishable from a funeral and therefore the numerical limits that apply to funerals apply to wakes.  It does not require any explanation to see why we hold this view to be unsustainable.

15.      Similarly, Mr Mayger's view as to what could constitute an event also seems to us to be, for the reasons we have mentioned above, untenable.

16.      We have to say that having read Mr Mayger's statement, heard his submissions before us and seen the evidence on video footage, it appears to us that he has taken the most elastic view conceivable to the guidance and operated it in a way that suits the maximisation of his business profits.  It is not evident to us that he has made any serious effort to comply with that guidance.  The employment of door staff really is of little benefit if the door staff are not capable of enforcing numerical limits and the Licensee is incapable of ensuring that the premises operate in a way which conforms to the appropriate guidance.  It did not appear to us from the footage that we have seen that anyone sought to stop people dancing or control social distancing.  Mr Mayger appeared to take the view, as indeed he characterised it to us, that his customers were all adults and he had to rely on them to behave properly.  We observe that it is clear that many licensed premises, operating in a variety of licences, appear to be able to take sufficient steps to conform to the guidance set out by Government to protect all Islanders.  We did not have before us one or two instances of a failure to meet guidance but rather clear evidence of a prolonged disregard for guidance notwithstanding repeated attempts by the Police as well as Health and Safety Officers asking for compliance because, so it appeared to us, it was inconvenient and did not suit the Licensee's business.

17.      There is some evidence that since the matter has been referred to the Assembly by the Attorney General steps have been taken by Mr Mayger to ensure compliance with the guidance.  This is to our mind a significant point and it underpins the orders that we made.

18.      The Solicitor General moved for a period of suspension of the Licence and for a substantial fine in the sum of £20,000.00.

19.      Mr Mayger made no submissions to us nor indeed was any financial information relating to the Licensee placed before us other than the fact that it has proved difficult for the Licensee to secure a renewal of the lease, which has now been renewed for a relatively short period.

20.      In summary, the Assembly was extremely concerned that despite very many visits by the Police and by other representatives of regulatory bodies there had been a clear and persistent breach on a number of occasions of the relevant guidance.  The breach of the guidance has simply meant that the Licence has failed to be operated in the public interest because it has not protected the public in the way that it should.  We were satisfied that events had been taking place without any reasonable understanding of what that term might mean and we did not understand or accept Mr Mayger's submission to us that he was not familiar with the terms of Article 12(1)(d) of the Law.  As we have indicated above, anyone who puts himself or herself, forward to be registered as a manager is routinely asked whether he had read and understood the Licensing Law and he would need to confirm that he had before being registered as a manager.

21.      It is not in our view, for any operator of a Licence to assess the appropriateness of the guidance issued by the Government, designed as it is to protect the people of Jersey nor what parts can be applied and what parts are too difficult to apply and may thus be disregarded.  Every business has a responsibility to conduct itself in accordance with guidance and if that means a material change to the practice of that business then that must happen for as long as the guidance remains in place.

22.      Had there not been some evidence, as we have mentioned above, of real improvement in the way the Licence has been operated we would not have hesitated but to suspend it as submitted by the Solicitor General.  However, we think that there is some indication of improvement and therefore we accept at face value Mr Mayger's assurances that he is doing his best to comply and will continue to operate the Licence in accordance with guidance.

23.      The failure to appreciate the importance of the guidance and indeed the failure to appreciate the ambit of the Law must inevitably raise in our minds the question as to whether or not Mr Mayger is a fit and proper person to operate a licence.  That is a matter that we are prepared to hold over to be further monitored. 

24.      Whilst we do not suspend the Licence at this point we expect any further breaches of the guidance to be referred to us, if the Attorney General determines that they are of significance.  At which point we will consider the suspension of the Licence once again and we will also revisit whether or not Mr Mayger can be characterised as a fit and proper person to conduct the management of the Licence.

25.      We do, however, think that it is appropriate for us to impose a significant penalty for the breaches of the guidance and indeed the disregard of the public interest and accordingly, we impose a fine of £20,000.00 with 30 days to pay.  We allow liberty to apply as to time to pay given that we have not, when we imposed the fine, heard submissions on that aspect.

26.      The Attorney General applied, in the light of a decision not to suspend the Licence, for costs.  We accepted at face value what Mr Mayger then told us to the effect that this will place a significant additional burden on the Licensee and we do not make any order for costs on this occasion.

Authorities

Licensing (Jersey) Law 1974.

Health and Safety at Work (Jersey) Law 1989. 

Statutory Nuisances (Jersey) Law 1999.