Agenda item

Introduction by the Licensing Officer:

Mr Steven Dormer, Licensing Officer at the London Borough of Hillingdon, introduced a report relating to an application for a review of the premises licence for Roc Cottage, brought by the Metropolitan Police due to concerns that the managers of the premises were not upholding the crime and prevention objective of the licensing act 2003.

Section 182 guidance 11.27 was referred to, setting out the powers for review relating to the employment of persons without legal right to work or stay in the UK. In this instance, the premises had received two visits by Immigration Officers, in September and November 2018. On each visit, staff members were arrested and investigated for immigration related offences. Arrests for immigration offences, and staff not being aware of their obligation to the conditions of licence, reduced the chances of the premises being effective in supporting the crime and disorder objective of the Licensing Act 2003.

On both visits, Immigration Officers found the management to be ineffective in checking the documentation of staff they were employing at the premises. Upon visiting for the second time, it was apparent that preventative measures had not been put in place ensure that all staff had a legal right to work in the UK.

Whilst none of the premises licence conditions were witnessed as being breached, the management of the premises were failing to uphold the licensing objectives, most notably ‘prevention of crime and disorder’.

It was therefore recommended that the Sub-Committee revoke the premises licence taking into consideration the statutory powers 11.19 of section 182 guidance.

The Chairman sought clarity on the matter of the transfer of the premises licence and variation of DPS, as referred to within the report. Mr Dormer confirmed that ordinarily, such a transfer would take approximately 14 days to process. In this instance, the managers of the premises submitted incomplete paperwork, which significantly delayed the processing of the transfer request.

Representation by the Applicant:

PC Dave Butler of the Metropolitan Police addressed the Sub-Committee as applicant for the review, and provided a summary of the background to the review as set out in the Committee papers. PC Butler was accompanied by Mr Jonathan Burton, of ICE.

ON 21September 2018, officersfrom theImmigration Complianceand Enforcement Team (ICE), instigated an investigation into the employment of illegal workers at the restaurant. TheICE Teamfound 8members ofstaff workingon thepremises, preparingand cookingfood. One member identifiedherself asthe personin chargeof the restaurantand wassubsequently clearedas a residentin theUK andentitled towork.

Theremaining 7staff werespoken toby officers,of whom5 were foundto beillegally presentin theUK withno rightto work.All 5subjects werearrested aspersons liable to beremoved. Allthe arrestedsubjects statedthat theylived inrooms abovethe premises.

Duringthe visit,the ownerMr. ZehaoWang attendedthe premisesand  statedthat hedid notemploy staffand didnot haveany recordsof what staffwere employed,stating thatthat wasall doneby hispartner Mr QuanXiao, whowas notpresent atthe time ofthe visit.When questionedabout thestatus ofhis staff,he didnot knowif theyhad everproduced any documentation toprove theirstatus inthe countryand statedthat theprevious ownerand hispartner were responsible forthat sideof thebusiness.

Onthe 9November 2018,a secondcompliance visitwas conductedat the premises, where ICE officersdetained occupantswithin. Onemember ofstaff was  found workingin thekitchen, and subsequentchecks revealedthat theyhad anoutstanding asylumapplication whichdid notentitle themto work inthe UK.Another workerwas foundpreviously workingin thekitchen onthe Home Officevisit dated21 September ,wherehe wasarrested forbeing anoverstayer. Themanager, Mr. Zehao Wangwas presenton thissecond visitand statedthat thestaff detainedwere onlypreparing meals for themselves,as therewere nokitchen facilitiesupstairs.

Enquirieshad revealedthat, fromthe startof August2018, onnumerous occasionsover aperiod ofweeks theLondon Boroughof HillingdonLicensing Service had contacted ROCrequesting atransfer andDPS variation.On the12 September2018, theLondon Boroughof Hillingdon LicensingService spoketo themanager, MR QuanXiao, whoinsisted that the licence hadbeen transferredas theprevious licenceholder andDPS had returnedto HongKong in2015. Itwas explainedthat no applicationshad beenreceived, and Mr Xiao was advised that heshould submita Transferand VaryDPS applicationas soon as  possible.

AsThe LondonBorough ofHillingdon LicensingService didnot receivethe applications,a warningletter was sent on26 Septemberto thepremises, addressedto QuanXiao. Anapplication totransfer was submitted on2 Octoberbut withoutconsent fromthe existinglicence holderYiu FongWan. TheLondon Borough of HillingdonLicensing Servicespoke tothe applicantregarding consentand heexplained he was notin contactwith YiuFong Wan,so itwas impossibleto obtainconsent. Itwas thenexplained that the LicensingAct madeprovision forsituations wherethe consentof theexisting LicenceHolder toa transfer cannot beobtained, statingthat wherethe Applicanthas takenall "reasonablesteps" toobtain that consent butcannot actuallyobtain itthen heor shemust beexempted fromthe requirementto getthat consent andthe transfercan beprocessed accordingly.A requestwas alsomade forproof ofinterest of the applicantin the property(e.g. alease) but at the time of submission of the report, this hadnot beenforthcoming.

PC Butler concluded by asserting that the managers of Roc Cottage were not carrying out even themost basicchecks of proofof IDor rightto workin theUK. MrZehao Wangstated thathe hadno responsibilityin thehiring ofhis staff.As amanager orowner, itwas anemployer's responsibilityto protect thehealth, safetyand welfare oftheir employeesand otherpeople whomight beaffected bytheir business. PC Butler asserted that there wasno excusein thefirst instance,and  then by knowingly allowingthe an individualto continueto workon the samepremises, Mr.Zehao Wangand QuenXiao were demonstratinga totaldisregard forthe law,  and it was requested that the licence be revoked.

Mr Burton, of ICE, clarified that the two civil penalty notices served on the management of Roc Cottage, as outlined within the report, were still being processed. No fines had yet been levied.

Members sought clarity on the number of workers found to be illegally working within the premises over the two visits. It was confirmed that 5 workers were found on the first visit, with 2 of this 5 subsequently found again, on the second visit.

Representations by Responsible Authorities:

Stephanie Waterford, Licensing Manager at the London Borough of Hillingdon, reiterated PC Butler’s points and highlighted that the two visits from Immigration officers had resulted in 5 workers being found to be working illegally at Roc Cottage. Mrs Waterford asserted that Mr Wang, as owner, had a responsibility to ensure that workers within his premises were legally able to work within the UK, despite his claim to the contrary.

It was put to the Sub-Committee that the management’s inability to ensure their workers were legally approved to work, alongside the issues with transferring the premises licence and DPS in a timely fashion, was evidence that they were unsuitable to continue running the business. In addition, it was confirmed that while the transfer of the premises licence and DPS was now complete, the food business licence remained under the name of the previous owner.

In summary, and with regard to the evidence presented, it was asserted that Mr Wang and Mr Xiao were not capable of upholding the four licensing objectives, and it was requested that the licence be revoked.

Representation by Ward Councillors:

Councillor John Hensley addressed the Sub-Committee as Ward Councillor for Ickenham. Councillor Hensley raised concerns over the management’s employment of illegal workers, as well as concerns that the management were not paying due tax on their payments to these workers. On the basis that the management of the premises were not fit to operate the business and employ individuals, it was requested that the licence be revoked to promote the licensing objective of ‘prevention of crime and disorder’.

 

Representations by the Licence Holder:

Mr Xiao, accompanied by his legal representative Nehal Mangrio, addressed the Sub-Committee on behalf of Roc Cottage.

With regard to the transfer of the premises licence and instalment of a new DPS, Mr Xiao asserted that he had provided the London Borough of Hillingdon Licensing team with the relevant documents, including the consent form from the previous owner, in December 2015. These documents were posted from Heathrow airport. Upon learning that these had not been received, a second copy of the documents was sent by recorded delivery in early 2016. These were also not received, and due to the length of time that had since passed, Mr Xiao could not provided any receipts to confirm postage of these documents.

Regarding the employment of illegal workers, Mr Xiao asserted that at the time, management of the premises was chaotic. Mr Xiao confirmed that he was new to the business, and the previous chef and owner had advised that the necessary checks to ensure employees’ right to work in the UK had been done. Upon the visits from ICE, it had become apparent that this was not the case, but since then, all staff had been checked and vetted for their right to work. Mr Xiao apologised for what had occurred, and stated that such issues would not be repeated.

Mr Mangrio expanded on Mr Xiao’s statement, and asserted that at the point of assuming management of the premises from the previous owner, 3 staff were kept on. One staff member left for personal reasons, leaving 2 staff members. Of the 5 illegal workers identified by ICE, this incorporated the 2 aforementioned staff members, plus 3 others. Of these 3, one was on ‘trial’ and was not a full member of staff. Trialling staff members was a normal practice, and the relevant checks for right to work were not normally conducted until the trial had concluded. One other member of staff was since found to be living in the UK on a tourist visa, and was potentially not working in the premises, but was present for some other reason.

Upon ICE’s second visit, 2 staff members were found. However, these staff members were present on site to collect their personal belongings and were cooking their own lunch, not working.

Mr Mangrio concluded by stating that since the incidents, the management of Roc Cottage had undergone significant changes, and as such, the licence should not be revoked.

Members sought clarity on who was currently managing the premises. Mr Xiao confirmed that he was managing the premises, and Mr Wang was currently in the process of being removed from any management responsibilities.

Members asked Mr Xiao to elaborate on what checks he was now conducting when employing staff. Mr Xiao confirmed that he was reviewing all necessary documentation including passport, visa, and National Insurance cards, copies of which were kept in a case file.

Upon further questioning, Mr Xiao confirmed that he was new to running a business, after completing a university course in business management. In addition, Mr Xiao confirmed that staff vacancies were advertised via the internet, and all staff were issued a payslip when receiving payment.

Mr Xiao was asked whether he knew the minimum wage. Mr Xiao advised that to his knowledge, the minimum wage was £8 p/h for workers over 30 years of age. Pensions contributions for Roc Cottage staff was paid into a scheme on the internet.

Mr Xiao advised that he was now the DPS, and was present on site from 6-10pm most days. He had a personal licence for the sale of alcohol. When asked what the licensing objectives were, Mr Xiao confirmed that they were to sell alcohol responsibly, such as not selling to people already inebriated, and not to sell alcohol outside of the permitted licenced hours, as well as upholding the objection for the prevention of crime.

Discussion:

All parties discussed the matter at hand.

To Mr Xiao, the Sub-Committee asked whether any external companies had been engaged to help provide guidance over best practice on the running of a business. Mr Xiao advised that as yet, they had not employed anyone to that effect.

PC Butler asked Mr Xiao whether his apology for the employment of illegal workers was an admission of guilt, or just a misunderstanding. Mr Xiao advised that he understood that employing illegal workers was breaking the law, and that it should not have taken place. Mr Xiao reiterated that management of the premises had since improved, and such issues would not be repeated.

Mr Xiao was asked to confirm the average hourly rate paid to his staff, and the overall monthly wage bill. Mr Xiao was unable to confirm these details.

It was highlighted that paying staff in cash was not illegal, as long as a payslip was also issued.

Closing Remarks

Mr Xiao advised that, moving forward, he would strictly follow the rules to prevent crime and illegal activities, and would take all reasonable steps to fulfil the requirements of the premises licence.

Mr Mangrio advised that since the management of the premises had undergone change, all rules and regulations would be abided by. To this end, it was requested that the Sub-Committee not revoke the licence, but instead give Mr Xiao the opportunity to prove himself as manager of Roc Cottage.

Mrs Waterford advised that she had heard nothing that allowed her to come to a different conclusion, and reiterated that the licence should be revoked.

PC Butler asserted that, due to the serious breaches outlined, including the employment of illegal workers and their potential exploitation, the licence should be revoked.

Councillor Hensley confirmed that he had no confidence in the management of Roc Cottage, and due to concerns over their ability to uphold the licensing objectives, requested that the licence be revoked.

Committee Deliberation:

All parties were asked to leave the room while the Sub-Committee considered its decision.

 

The sub-committee noted their powers to consider on a Review application whether it should:

 

 Modify the conditions

 Exclude a licensable activity

 Remove the designated premises supervisor

 Suspend the licence for up to 3 months

 Revoke the licence

 

All parties were invited back into the room for the Chairman to announce the decision of the Sub-Committee.

 

The Decision:

 

The Sub-Committee considered all the relevant representations made

available to it and in doing so took into account the Guidance issued by

the Secretary of State under Section 182 of the Licensing Act 2003. The Sub-

Committee took into account its duty to take all steps necessary in order

to determine the application in a manner which upheld the Licensing

objectives and Licensing Policy. The Licensing Sub-Committee

determined that it was necessary and appropriate to revoke the premises

licence.

 

Right of Appeal:

 

No decision made by the Council will have effect during the time period within which an appeal may be brought and until such time that any appeal has been determined or abandoned.

 

The applicant for review, holder of the Premises Licence, or any other person who made relevant representations to the application may appeal against the Council’s decision to the Justice Clerk at the Uxbridge Magistrates Court. Such an appeal may be brought within 21 days of receipt of this Notice of Decision. A copy of the appeal should be sent to the Council’s Licensing Service.

 

The Licence Holder will be deemed to have received the Decision Notice, two days after the date on the accompanying letter, which will be posted by 1st class mail.