Minutes of the Meeting of the Highland Licensing Committee held in the Council Chamber, Council Headquarters, Glenurquhart Road, Inverness on Tuesday 8 February 2011 at 10.30 am.
Present:
Mr P Corbett
Mr R Greene
Mr A Henderson
Mr W Mackay
Mr D Millar
Mrs M Paterson
Mr R Pedersen
Mrs G Sinclair
In Attendance:
Mr A Mackenzie, Area Solicitor (Clerk)
Inspector B Marquis, Northern Constabulary
Inspector D Greenlees, Northern Constabulary
Inspector G Cameron, Northern Constabulary
Mr J Williamson, Licensing Enquiry Officer, Northern Constabulary
Mrs E Gardner, Trading Standards Officer
Mr S Hiddleston, Assistant Trading Standards Officer
Mr W Leslie, Assistant Trading Standards Officer
Mr S Young, Principal Engineer, TEC Services
Mr M Elsey, Senior Licensing Officer
Ms A Macrae, Committee Administrator
Mr S Taylor, Administration Assistant
Also In Attendance:
Item 4.1 – Mr S Ahmed (Applicant)
Item 6.1 – Mr R McPhee (Licence Holder)
Item 7.1 - Mr S Brown (Applicant)
Item 8.1 - Mr M Macdonald (Solicitor for the Applicant)
Item 9.1 - Mr R Mackenzie (Applicant)
Item 9.2 - Mr P Worsfold (Licence Holder )
Item 9.2 - Mr V Rawlins (Applicant’s Representative)
Item 9.3 - Mr P Dunnett (Applicant)
Item 9.4 - Mr J Chima (Applicant)
Item 9.4 - Mr V Rawlins (Applicant’s Representative)
Item 10 – Mr A Brown (Licence Holder)
Mr P Corbett in the Chair
The Chairman confirmed that the meeting would be webcast, and gave a short briefing on the Council’s webcasting procedure and protocol. Accordingly he advised the Committee that items 8.1, 9.1, 9.3, 9.4 and 10 detailed below, would not be webcast due to the disclosure of personal information relating to the applicants/licence holders.
Business
1. Apologies for Absence
Apologies for absence were intimated on behalf of Mr D Flear, Mrs L Munro and Mr G Rimell.
2. Minutes of the Meeting on 30 November 2010
There had been circulated for confirmation the minutes of the meeting on 30 November 2010. The minute was held as read and APPROVED.
3. Licences Granted Under Delegated Powers
There was circulated Report No HLC-030-11 (31kb pdf) by the Area Solicitor detailing the licences granted under delegated powers under the Civic Government (Scotland) Act 1982 and the Marriage (Approval of Places) (Scotland) Regulations 2002 in the period from 16 November 2010 to 24 January 2011.
The Committee NOTED the Report.
4. Civic Government (Scotland) Act 1982
Applications for Late Hours Catering Licence
4.1 Premises – Bombay Spice, 27 Bridge Street, Wick
In attendance: Mr S Ahmed
There was circulated Report HLC-031-11 (98kb pdf) by the Area Solicitor relating to an application for the grant of a Late Hours Catering Licence received from Sablu Ahmed (Wick Ward) in respect of premises at Bombay Spice, 27 Bridge Street, Wick. The Report advised that letters of objection dated 10 and 27 November 2010 had been received from the Northern Constabulary objecting to the grant of a licence on the grounds that the applicant had contravened the terms of his temporary late hours catering licence. The Committee was invited to determine the application in accordance with the Council’s Hearings Procedure.
Mr S Ahmed, the Applicant, spoke in support of his application advising that he had been on holiday, and therefore absent from the business, over the period when the breaches of the temporary late hours catering licence had occurred on 7 and 27 November 2010. The customers in the premises had been admitted to the premises before the terminal hour. He apologised for the contravention of his temporary licence and gave an assurance that as the responsible licenceholder for the premises there would be no further breaches of his licence.
Inspector G Cameron, Northern Constabulary, spoke to the two letters of objection.
During discussion the Committee expressed concern at the two breaches of the licence which had occured over a short space of time and cautioned the Applicant against any further contraventions.
Thereafter the Committee AGREED to grant the application for a Late Hours Catering Licence, for a period of one year, with delegated powers to the Area Solicitor to grant for a further two years without a further application being required in the event that the applicant was not brought to the attention of the Council. The licence would be subject to standard conditions and further subject to the opening hours being restricted to the policy hours for Caithness, as follows ;
Sunday to Thursday – 12 Midnight
Friday – 2.15am
Saturday – 2.00am
5. Civic Government (Scotland) Act 1982 – Applications for Public Entertainment Licence
5.1 Premises – Kinlochbervie Village Hall
There was circulated Report No HLC-032-11 (29kb pdf) by the Area Solicitor relating to an application for the renewal of a Public Entertainment Licence received from Kinlochbervie Village Hall Committee in respect of Kinlochbervie Village Hall (North West and Central Sutherland Ward). The Report advised that Section 3 (1) of the Civic Government (Scotland) Act 1982 required that that the application be determined within six months of receipt which elapsed on 24 March 2011, and currently the submission of a satisfactory Electrical Certficates was awaited, without which a licence could not be issued. The Committee was invited to consider the application.
Following discussion the Committee AGREED to grant delegated powers to the Area Solicitor to issue the Licence subject to the standard conditions upon receipt of confirmation that all works had been completed and, if necessary, with an additional condition that the Electrical Safety Certificate be produced within one month of the issue of the Licence.
5.2 Premises – Maryburgh Amenities Centre, Football Pitch and Green
There was circulated Report No HLC-033-11 (18kb pdf) by the Area Solicitor relating to an application for the renewal of a Public Entertainment Licence received from Maryburgh Amenities Association in respect of Maryburgh Amenities Centre, Football Pitch and Green, Back Road, Maryburgh (Dingwall and Seaforth Ward). The Report recommended that the Committee agree to defer determination of the application, either to (i) to allow it to be approved under delegated powers in the event that all responses and no objections were received, or (ii) to a future meeting of the Committee when the application would be determined in terms of the Hearings Procedure.
The Committee AGREED the recommendation.
6. Civic Government (Scotland) Act 1982
Taxi Operator’s Licence
6.1 Operator – Robert J S McPhee
In attendance: Mr Robert McPhee
There was circulated Report No HLC-034-11 (88kb pdf) by the Area Solicitor relating to the current Taxi Operator’s Licence held by Robert J S Macphee (Caithness Landward Ward) who had held a Taxi Operator’s Licence since 2005. The Report indicated that a report had been received from the Council’s Trading Standards Service due to the Licence Holder’s failure to maintain his licensed taxi to the standard required by the Council which had led to the accrual of 32 penalty points under the Penalty Points System introduced by Trading Standards in July 2006. The Committee was invited to consider whether or not the Licence Holder continued to be a fit and proper person to hold a Taxi Operator’s Licence and upon determining this whether any action should be taken against the Licence Holder in the form of a warning or suspension of licence.
Mr R Macphee apologised for the fact that his taxi vehicle had failed to pass the Council’s vehicle inspection test on 14 October 2009 and 19 October 2010 but observed that many items listed on the Council’s inspection test result were not classed as ‘dangerous’. On both occasions the defective parts were repaired or replaced on the same day and in each case the vehicle had passed the re-test the following day from the original test. Responding to questions from Members in regard to the current condition of the car, Mr Mcphee confirmed that his taxi currently had a valid MOT and Council inspection pass.
Mrs E Gardner, Trading Standards Officer, confirmed that Mr Macphee’s taxi vehicle had failed two Council inspection tests in October 2009 and 2010 and as a result had accrued a total of 32 points on his Taxi Operator’s Licence under the Penalty Points System. This was an indication that Mr Macphee’s maintenance regime was not sufficient to ensure that the mechanical condition of the car remained at the standard required by Trading Standards. Verbal confirmation had been received from the two individuals named in her report that they carried out bodywork and mechanical repairs to the vehicle although neither party was prepared to put this in writing. She concluded by stating that Mr McPhee’s vehicle was 8 years old and had 160,000 miles on the clock, and there was no evidence of regular services or pre-inspection checks being carried out.
Mr McPhee expressed concern regarding the affordability of carrying out regular and pre-inspection checks on the vehicle, in addition to meeting the cost of the Council’s six monthly test. He confirmed, however, that the vehicle was maintained between Council inspections and any necessary repairs carried out. He confirmed, however, that he would submit the vehicle for a pre MOT inspection check in future.
During discussion a number of Members emphasised to Mr McPhee the importance of budgeting to ensure an adequate maintenance regime was in place for the vehicle given that it was used as a taxi to convey members of the public. It was suggested that he receive a final warning on this matter and be required to undergo three monthly vehicle inspection tests.
A contrary view was expresssed that the nature of the vehicle’s failures were extremely serious and should not be dismissed lightly, and therefore consideration should be given to suspending Mr Macphee’s licence.
Following further discussion the Vice Chairman seconded by Mr Roy Pedersen moved that Mr McPhee receive a final warning in regard to the standard of maintenance of his vehicle and that he be required to undergo the Council’s vehicle inspection test every three months.
Mr D Millar seconded by Mrs G Sinclair moved as an amendment that Mr McPhee’s Taxi Operator’s Licence be suspended for a period of six months on the grounds that he was not a fit and proper person to hold a Taxi Operator’s Licence.
There being no further amendments, the matter was put to the vote with votes being cast as follows:
Motion (6): Mr P Corbett, Mr R Greene, Mr A Henderson, Mr W Mackay, Mrs M Paterson and Mr R Pedersen
Amendment (2): Mr D Millar and Mrs G Sinclair
The motion that Mr McPhee receive a final warning in regard to the standard of maintenance of his vehicle and that he be required to undergo the Council vehicle inspection test every three months, accordingly became the finding of the meeting.
7. Civic Government (Scotland) Act 1982
Second Hand Motor Vehicle Dealer’s Licence
7.1 Premises – ST Motors, [text removed from web version in compliance with Data Protection Act 1998]
In attendance: Mr Steven Brown
There was circulated Report No HLC-035-11 (29kb pdf) by the Area Solicitor relating to an application for the grant of a Second Hand Motor Vehicle Dealer’s Licence received from Steven Brown (ST Motors) in respect of premises at [text removed from web version in compliance with Data Protection Act 1998].
(Cromarty Firth Ward). The Report indicated that objections to the application had been received from the Northern Constabulary and the Principal Engineer, TEC Services, both received outwith the statutory 21 day consultation period. The Report noted that Schedule 1, Paragraph 3(2) of the Civic Government (Scotland) Act 1982 stated that it was competent for the Licensing Authority to entertain an objection or representation received before taking a final decision on the application if they were satisfied that there was sufficient reason why it was not submitted in the time required. The Committee was therefore invited to consider whether to entertain the objections received from the Northern Constabulary and TEC Services.
Inspector D Greenlees addressed the Committee in regard to the letter of representation from the Northern Constabulary which had been received outwith the 21 day statutory period, advising that this was due to operational commitments and priorities and the fact that when the Applicant was initially called to interview he was unavailable. He confirmed that he was addressing the issue of late representations locally.
Mr S Young, Principal Engineer, reported that the Council’s TEC Services had received a copy of the application form from the Chief Executive’s Service on 22 October 2010, which was already outwith the 21 day statutory consultation period from the date of the application being lodged with the Licensing Authority.
Following discussion the Committee AGREED to hear the late representations from the Northern Constabulary and TEC Services.
Mr S Brown spoke in support of his application indicating that his property was located in a cul de sac off the main road where there was ample parking space for the purposes of his business, and he confirmed that no more than two vehicles for sale would be parked there at any one time, in addition to his own private vehicle. During the day he operated his business from commercial premises elsewhere and therefore proposed only to trade from his private residence after 6pm. He had also been involved in the car trade for 15 years without complaint from either his neighbours or the Police. On being made aware that there was an issue with the application for a licence at his home address he had requested that the premises details on his application be amended to his commercial premises. However the advice he had received from the Council was that this would require a new application and a fresh application fee to be lodged. He also advised that he had been unaware that there were objections in response to the application until he had received notification that it would be determined by the Licensing Authority, which had been a considerable period of time after he had lodged the application.
Responding to questions from Members, Mr Brown confirmed that the cars parked outside his private residence for sale had a valid MOT and were taxed and insured. The vehicles were mainly advertised for sale on car internet sites and did not have ‘for sale’ signs posted on them, and typically they remained at his home address for a period of no more than two weeks.
The Committee then heard from Inspector D Greenlees in relation to the Northern Constabulary’s objection to the application stating that the applicant had other commercial premises which would be better suited to a second hand motor vehicle dealer’s business, and that while there may be sufficient parking at his private residence at the moment this was something that could change in the future. He also confirmed that the he was not aware of any complaints being received in connection with the applicant’s business.
Following on from this the Committee heard from Mr S Young, Principal Engineer, in connection with the objection received from the Council’s TEC Services, which referred to (i) the reduction of parking for other residents; (ii) the fact approval could be seen as setting a precedent for similar uses of other parking spaces; (iii) it would be unfair to allow free use of public parking spaces for commercial purposes when a similar application for a location controlled by the Housing and Property Service would be rejected, and (iv) the fact it would be difficult to monitor or control the use of these spaces by the applicant.
During discussion the view was expressed that the application should be treated on its merits, taking local circumstances into account, noting that there had been no complaints from the Police or neighbours in regard to the applicant’s business. Reference was also made to the fact that the applicant had experienced delays in the processing of the application. It was also suggested that a condition be applied to the licence restricting the number of cars parked for sale outside the applicant’s residence to a maximum of two cars at any one time.
The Committee AGREED to grant the application, subject to standard conditions and to an additional condition restricting the number of cars for sale parked outside the applicant’s home residence at [text removed from web version in compliance with Data Protection Act 1998]. to a maximum of two cars at any one time.
The Committee resolved that, under Section 50A(4) of the Local Government (Scotland) Act 1973, the public should be excluded from the meeting during discussion of the following Items 8.1 and 9.1 on the grounds that they involved the likely disclosure of exempt information as defined in paragraph 3 of Part 1 of Schedule 7A of the Act.
8. Civic Government (Scotland) Act 1982
Taxi Driver’s Licences
8.1 Applicant - Mark J Bogue
In attendance: Mr Macdonald (Solicitor for the Applicant)
With reference to Item 7.1 of the Minutes of Meeting of 30 November 2010 there was circulated Report No HLC-36-11 by the Area Solicitor relating to an application for the grant of a Private Hire Car Driver’s Licence received from Mr Mark J Bogue (Cromarty Firth Ward) appending a letter of representation from the Northern Constabulary and further information received in relation to the applicant from West Lothian Council. The Committee was invited to determine the application in accordance with the Council’s Hearings Procedure.
Mr M Macdonald, Solcitor for the Applicant, advised that Mr Bogue had been unvoidably delayed on his return from holiday, and apologised for not being able to be present to address the Committee. Mr Bogue had requested that the Hearing proceed in his absence and that he be represented by Mr Macdonald.
In response to the applicant’s agent, the Area Soilcitor clarified the the reasons for the Committee’s decision on 30 November 2010 to accept the late representation submitted by the Northern Constabulary in response to Mr Bogue’s application.
Having heard from the Applicant’s Solicitor and Inspector D Greenlees, Mr D Millar seconded by Mr W Mackay moved that the application for a Private Hire Car Driver’s Licence be granted for a period of one year with delegated powers to the Area Solicitor to grant for a further two years without a further application being required in the event that the applicant was not brought to the attention of the Council.
Mrs G Sinclair seconded by Mr R Greene moved as an amendment that the application for a Private Hire Car Driver’s Licence be refused on the grounds that the applicant is not a fit and proper person to hold a Private Hire Car Driver’s Licence.
There being no further amendments, the matter was put to the vote with votes being cast as follows:
Motion (3): Mr A Henderson, Mr W Mackay and Mr D Millar.
Amendment (5): Mr R Corbett, Mr R Greene, Mrs M Paterson, Mr R Pederson and Mrs G Sinclair
The amendment to refuse the application on the grounds that the applicant is not a fit and proper person to hold a Private Hire Car Driver’s Licence, accordingly became the finding of the meeting.
9. Civic Government (Scotland) Act 1982
Taxi Operator’s and Driver’s Licences
9.1 Applicant – Ruairidh Mackenzie
In Attendance: Mr Ruairidh Mackenzie
There was circulated Report No HLC-37-11 by the Area Solicitor relating to an application for the grant of a Taxi Driver’s Licence received from Ruairidh Mackenzie (Cromarty Firth Ward), following receipt of a letter of representation from the Northern Constabulary. The Committee was invited to determine the application in accordance with the Council’s Hearings Procedure.
Having heard from the Applicant and Inspector D Greenlees, the Committee AGREED to grant delegated powers to the Area Solicitor to issue the licence for a period of three years, subject to standard conditions, once the Applicant had passed the taxi knowledge test.
9.2 Applicant – Peter Worsfold
In Attendance: Mr P Worsfold and Mr V Rawlins (Applicant’s Representative)
There was circulated Report No HLC-038-11 (378kb pdf) by the Area Solicitor relating to a Taxi Driver’s Licence held by Peter Worsfold (Inverness Ness Side Ward) following a report received in connection with the licence holder from the Council’s Trading Standard’s Service in regard to three complaints made to them by members of the public against the licence holder in relation to alleged breaches of standard Licence Condition number 14. The Committee was invited to determine the application in accordance with the Council’s Hearings Procedure.
The Committee heard from the applicant’s representative, Mr V Rawlins, who provided a detailed reponse to the three complaints received on the alleged breaches of taxi driver licence condition 14. In summary he reported that in regard to the first complaint received from Mr P Carpenter, it had been the complainant’s decision not to proceed with the fare, and that Mr Worsfold had been prepared to take the fare for the journey. The alleged incident took place on Tuesday 10th August 2010, however the complainant had not reported the incident to Trading Standards until the Friday of that week, which raised questions about how aggrieved he had been over the incident.
In regard to Mr H Morrison’s complaint, Mr Rawlins indicated that the licence holder had not engaged him in conversation due to the fact he suffered from a hearing condition. The complainant appeared to Mr Worsfold to be have consumed an excess amount of alcohol and therefore he had placed the change due from the fare firmly in Mr Morrison’s hand to prevent it from being dropped. He refuted the allegation that Mr Worsfold had driven off while the complainant was getting out of the car, but rather that the complainant been hanging onto the back door of the car due to the fact he was intoxicated. Mr Morrison’s written complaint to Trading Standards had also been dated and stamped one month before the alleged incident had occurred.
In regard to the complaints by Mrs D Dunbar and Mrs M Short, he confirmed that at the time of the alleged incident Mr Worsfold had rented the taxi from another operator, Mr Colin Capp, for a few days while awaiting the arrival of his new taxi vehicle, and therefore the contents of the boot had belonged to Mr Capp. The back seat had been recently shampooed which had caused the musty smell and a rug had been placed to cover the seat as it was still damp, noting that they were subject to wear and tear in a taxi. The taxi plate which the complainants had observed in the boot of the vehicle related to his new taxi which he had just licensed at that time. He indicated that Mr Worsfold believed it would have been rude to interrupt the complainants’ conversation, and that that he would have turned off the car radio on request . He also noted that Mrs Short had thanked Mr Worsfold and given him a tip for carrying her and Mrs Dunbar’s suitcases to their front doors. In regard to the item which had been broken in Mrs Dunbar’s suitcase, it had not been brought to Mr Worsfold’s attention that the suitcases contained fragile items. He also referred to the delay between the alleged incident and the complainants reporting this matter to the Council’s Senior Licensing Officer.
In conclusion Mr Rawlins stated that he had never known Mr Worsfold to be untidy and again emphasised that he found it difficult to engage conversation due to his hearing condition. He advised that Mr Worsfold offered his apologies to each of the complainants if they felt they had been unfairly treated.
The Committee then heard from Mr W Leslie, Assistant Trading Standards Officer, in relation to the complaints received and the breaches of condition 14 of the Taxi Driver’s Licence conditions which had occurred. He also expressed concern that Mr Worsfold’s customer care skills fell below that required of a taxi driver. Specifically he confirmed that at the time of the third incident the vehicle had been the property of Mr Worsfold who by then was in possession of a Taxi Operator’s Licence for the vehicle. He also emphasised that the complainant, Mr Carpenter, had decided to got get out of the taxi following comments from Mr Worsfold that gave the impression he did not want the fare for a short journey, noting that the complainant was a regular user of taxis at this rank. In the case of the complainant, Mr Morrison, he reported that there was no evidence to suggest that he was intoxicated with alcohol as had been suggested by the Applicant’s representative, and that the date stamp on his letter of complaint to Trading Standards was incorrect and should have read 7 September 2010, and which followed the alleged incident on 5 September 2010.
Responding to questions from Members, Mr Leslie reported that in his experience it was uncommon to receive three separate complaints in three months about a licensed taxi driver, and that normally mediation would result in a complaint being resolved. He confirmed that he had interviewed Mr Worsfold but that soon after this the third complaint had been received.
During the subsequent debate Members raised a number of points as follows;
- It was suggested that there were no grounds to support the statement by Mr Rawlins alledging that the second complainant, Mr Morrison, had been intoxictated with alcohol at the time of the incident.
- Irrespective of who owned the vehicle it was the driver’s responsibility to make sure that a public service vehicle such as a taxi was maintained in a proper condition
- Noting that Trading Standards had confirmed that the receipt of three complaints in three months about a taxi driver was an unusual occurrence
- It was common courtesy for a driver to speak to his passengers. A clear message should be sent to the Licence Holder that the attitude he exhibited to his passengers was unacceptable
- Taxi drivers were providing a service to the public and therefore good manners were expected of them especially in an area such as the Highlands which relied heavily on tourism
Thereafter the Committee AGREED to suspend Mr Worsfold’s Licence for a period of three months.
The Committee resolved that, under Section 50A(4) of the Local Government (Scotland) Act 1973, the public should be excluded from the meeting during discussion of the following Items 9.3, 9.4 and 10 on the grounds that they involved the likely disclosure of exempt information as defined in paragraph 3 of Part 1 of Schedule 7A of the Act.
9.3 Applicant – Paul Dunnett
In attendance: Mr Paul Dunnett
There was circulated Report No. HLC-39-11 by the Area Solicitor relating to an application for the renewal of a Taxi Driver’s Licence received from Paul Dunnett (Inverness South Ward). The Committee was invited to determine the application in accordance with the Council’s Hearings Procedure.
Having heard from the Applicant, the Committee AGREED to grant the application, subject to standard conditions, and to issue the Applicant with a formal warning in regard to his conduct as a taxi driver.
9.4 Applicant – Jagit Chima
In attendance: Jagit Chima and Mr V Rawlins (Applicant’s Representative)
There was circulated Report No HLC-40-11 by the Area Solicitor relating to an application for the renewal of a Taxi Operator’s Licence received from Jagit Chima (Aird and Loch Ness Ward). The Committee was invited to determine the application in accordance with the Council’s Hearings Procedure.
Having heard from the Area Solicitor, the Committee AGREED to defer consideration of the application to the meeting on 5 April 2011 to allow the outcome of a pending trial to be confirmed.
10. Hearing – Notification of Penalty Points
Andrew Brown
In attendance: Mr A Brown
There was circulated Report No HLC-41-10 by the Area Solicitor relating to Andrew Brown, a licensed Taxi Driver, who had received penalty points during the currency of his licence. The Committee was invited to consider whether or not the Licence Holder continued to be a fit and proper person to hold a taxi driver’s licence and upon determining this whether any action should be taken against the Licence Holder in the form of a warning or suspension of licence.
Having heard from the Applicant, the Committee AGREED to issue the Applicant with a formal warning in regard to his conduct as a taxi driver.
The meeting ended at 12.50pm