The Director of Environmental Services to submit a report on an application for review of an existing premises licence for Tesco, Unit1 Ryder Road, Leicester, LE3 6TA.
Report attached. A copy of the associated documentation is attached for Members only. Further copies are available on the Council’s website at www.cabinet.leicester.gov.uk or by phoning Democratic Support on 229 8897.
Please note that the supporting information to the report contains exempt information and is attached for Members only. These papers are marked ‘NOT FOR PUBLICATION’. The information in these papers will be exempt as defined in paragraphs 1 and 2 of Part 1 of Schedule 12A of the Local Government Act 1972, as amended and it is considered that the public interest in maintaining the exemption outweighs the public interest in disclosing the information. The information therefore must not be disclosed or discussed at the meeting. Should Members wish to refer to any of these details it is recommended that the meeting move to exclude the Press and Public during its consideration.
The Director of Environmental Services submitted a report on an application for review of an existing premises licence for Tesco, Unit 1, Ryder Road, Leicester, LE3 6TA.
The supporting information to the report contained exempt information and was sent to Members only. These papers were marked ‘NOT FOR PUBLICATION’. The information was exempt as defined in paragraphs 1 and 2 of Part 1 of Schedule 12A of the Local Government Act 1972, as amended, and it was considered that the public interest in maintaining the exemption outweighed the public interest in disclosing the information. Members’ were advised that the information was not to be disclosed or discussed at the meeting, unless they decided to exclude the public and press from the meeting.
The Licensing Team Manager and the Solicitor to the Panel were present at the meeting. Mr P Whur, Solicitor acting for Tesco Stores Ltd (Tesco), Ms H Purewal, National Licensing Manager, Mr R Wheeler, Mr D Rawlings, Store Manager and Mr C Wooley, Operations Manager, representing and attending on behalf of Tesco’s, were also present. PC J Webb and Inspector N Rixon, representing Leicestershire Police were also in attendance.
The Solicitor to the Panel advised everyone present of the time allowed for submissions and questions. The Chair of the Panel explained the formal process that would be followed for the hearing and stated that any time taken to view the DVD would be part of the time allowed for the submission. Mr Whur stated that it was only intended to play a short extract of the DVD to give a flavour of its content.
Members noted that a request for a review had been received from Leicestershire Police which necessitated that the review of the existing premises licence had to be considered by Members.
The Licensing Team Manager presented the report and circulated colour photographs of the exterior of the premises to all present. It was noted that the review application had been made by Leicestershire Police on 20 December 2012 on the grounds of the prevention of crime and disorder, public safety and the protection of children from harm.
The Licensing Team Manager also referred to the additional information that had been submitted by Mr Whur, which had been circulated in advance of the meeting to the Council and the Police. This submission comprised a Training DVD, a Tesco Due Diligence Pack and a Schedule of proposed conditions. The Licensing Team Manager had spoken to Mr Whur and it was understood that there was no intention to refer in detail to the Due Diligence Pack, as it had been submitted to demonstrate Tesco’s approach to due diligence. Mr Whur confirmed this and stated that he only intended to refer to the pack should it be necessary to support or illustrate any points that may arise.
There were no questions from the Members, Leicestershire Police or those representing Tesco on the report submitted by the Licensing Team Manager.
PC Webb outlined the reasons for requesting the review and made the following points during the submission:-
· The request for a review had been made following 2 test purchase failures in a 12 month period. This was in accordance with the Police’s policy to request a review in all cases where there were 2 failed tests within 12 months.
· Between January 2008 and August 2009, 5 test purchase operations had been conducted at the store and sales had been refused each time.
· A test purchase operation was conducted by Trading Standards and the Police on 8 March 2011 and a bottle of wine was sold to a 16 year old and a 15 year old female. The seller was later issued with an £80 penalty notice.
· A letter was delivered to the store in May 2011 requesting a meeting with the local Police Sergeant to discuss thefts, licensing and crime related issues. No one from the store made prior contact or attended the meeting. A member of the management team subsequently stated to the Police that they were aware of the meeting but had been too busy to attend, but would attend the next meeting.
· A further letter detailing a meeting with the Police on 2 June 2011 was hand delivered to the store. Again, no one from the store made prior contact or attended the meeting.
· A test purchase operation was carried out by the Police on 5 September 2011 using a 14 year 10 month old female and the sale was refused.
· Police officers conducted a test purchase operation on 5 March 2012 and a bottle of wine was sold to a 15 year 4 month old female. The seller was issued with an £80 penalty notice. 19 premises were visited during this operation and 2 sales were made.
· A further test purchase operation was carried out by the Police on 20 November 2012 and a bottle of wine was sold to a 15 year 9 month old male. 15 premises were visited during the operation and 4 sales were made.
PC Webb stated that, whilst the Police recognised that Tesco’s training was second to none, they looked at each individual store that failed test purchase operations on its own merits, and tried to address any issues that arose. In all three cases where the test purchases had failed, the sellers had all been aged 19 years or less and had only been employed for a short period of time. The Police felt that the failures had resulted from the seller’s inexperience and commented that if the seller had been under 18 years of age, they would have been required to get a supervisor to authorise the sale. In response to this particular point and other issues at the store, the Police suggested that the following conditions be considered to address the problem:-
a) The premises licence be suspended as described in section 11.23 of the Guidance issued under Section 183 of the Licensing Act 2003.
b) Any employee that had been employed at the premises for less than 3 months prior to making a sale of alcohol must obtain authorisation from a member of staff that has been employed at the premises for longer than 3 months.
c) A Personal Licence Holder must be present on the premises whenever a sale of alcohol is made.
d) The Licence Holder will ensure that the premises has a digital CCTV system which will cover any area of the shop used to display alcohol for sale. This system will be maintained in accordance with the Information Commissioners’ CCTV Code of Practice and recorded images will be made available to the Police within 24 hours of making a formal request.
e) All staff will receive documented training regarding the Company’s Challenge 25 Policy before they are allowed to sell alcohol, and this training to be repeated every 3 months in order to retain focus. Signed copies of the training to be kept on site and made available to the Council’s Licensing Officers and the Police on request.
PC Webb added that the suggested condition at (d) above was in response to the reason for requesting the meetings with the local Police Sergeant. Tesco had a national method of operating sales promotions at the end of aisles and immediately inside the doors on entering stores. This store had been requested not to put any end of aisle promotions of alcohol near to the doors and to put them in the wines and beers aisle, which was covered by CCTV, and if not, ensure that any end of aisle promotions of alcohol were still covered by CCTV coverage. The suggested condition at (e) above recognised that Tesco’s had a good training package but, at this particular store, it was felt that the training should be repeated every 3 months.
In response to a Member’s question asking what had changed at the store since August 2009 for it to fail the test purchases, how regularly had requests been made to attend meetings and how often had they not been attended, PC Webb responded that he was not in a position to answer the first part of the question. He had, however, observed that all the failures of test purchases involved staff who were young and had been employed for a short period of time. Meetings were requested when the local Police Sergeant felt there was an issue that needed to be addressed. PC Webb was not aware of any previous meetings that had been arranged, apart from the two mentioned in the submission. The Police tried to be positive when asking for a review by pulling together all the issues and seeking solutions to address them.
There were no questions of the Police submission by the representatives of Tesco.
The representatives of Tesco’s were then given an opportunity to present their submission. Mr Whur indicated he would be the lead speaker on behalf of the representatives, but they would contribute individually to the submissions where necessary. Mr Whur stated that the attendance of the senior representatives of Tesco showed the seriousness with which Tesco approached this review. Mr Whur made the following points and statements during the submission:-
· Tesco operated 2,600 stores that sold alcohol of which 1,500 were under the Express Brand. 200,000 staff were authorised to sell alcohol, which amounted to approximately £½ billion of sales in the last year.
· There had only been 1 review of all its premises licences nationally in the last year, which demonstrated that Tesco were a reliable and safe retailer of alcohol.
· There had been a change of manager at the store, who had a clear ability to turn away test purchases. It was disappointing and unforgiveable that no one had attended the meetings with the Police. It would have been discussed if known about and would have been a disciplinary issue if it had been ignored.
· Mr Rawlings had 17 years’ experience with Tesco and had taken over as store manager following the test purchase failures and things had now changed. Ms Purewal reported directly to the Tesco Board and was based at Head Office. In response to incidents such as failed test purchases, she was responsible for auditing the proceedings in individual stores and recommending ways on how to go forward. She would address all 4 licensing objectives in her report. Mr Wooley, as Operations Manager, was responsible for 12 stores in the Leicester area. The fact that this particular Tesco store was being subjected to review of its licence would send reverberations throughout all stores both in Leicester and nationally.
· The store had an experienced Designated Premises Supervisor, an Assistant Manager, 2 Team Leaders and 19 staff. There were never less than 3 staff in attendance at the store.
· Most stores had 1 member of staff with a personal licence. The 2 Team Leaders were taking their personal licence examinations the following week and, if successful, the store would have 4 staff members with personal licences.
· Tesco recognised the importance of maintaining good relationships with the Police Licensing Officers, and Ms Purewal was keen to liaise with local Police in relation to Tesco’s Community Alcohol Partnership Scheme.
· Tesco had introduced the ‘Think 25 – Challenge 21 Policy’ a number of years before to take the ‘sting’ out of asking customers for ID. Tesco had taken the lead on ‘Think 25’ to improve the safety of selling alcohol. Every time an alcoholic product was scanned at the check-out, the system was locked and a ‘Think 25’ message appeared on the operator’s screen. The store now had an additional enhanced message to remind the operative of the ‘Challenge 21 Policy’ as soon as they logged onto their till.
· All staff in the store had been given ‘Think 25’ ‘T’ Shirts and badges and there were also posters in the staff room and on walls to reinforce the message. Training sessions were in place in addition to these measures.
· One innovation in relation to training was that it audited on a quarterly basis. Training was on a one to one basis and was based around a four stage process of ‘Stop – Assess – Ask – Check.’ Tesco also employed a ‘You Say No We Say No’ Policy for Managers to support junior members of staff who had asked for ID and were experiencing a difficulty with the customer. Managers would always support junior staff in asking for ID, even if the Manager felt it was not necessary.
· It was pleasing that the Police had stated the Tesco training was second to none. Training was on a personal basis with interactive sessions and tests at all levels of the training. All training was recorded on personal records.
· Each Operational Manager appointed one store manager to be the auditing and training manager for all the stores in the division. The manager would visit stores unannounced and audit all training every quarter. If training had not been carried out for some reason, eg. holiday or sickness, then it would be noted and a time given for the training to be completed. If it was not completed within the timescale indicated, then it would become a disciplinary issue.
· Tesco also employed its own mystery shoppers to purchase alcoholic products. Tesco did not have the authority to use people under the age of 18 years old, unlike Trading Standards and the Police, so they used people who were 18 years old, but looked younger, to address the 18-25 year old gap. The tests were undertaken on a quarterly basis.
· This store had passed the last 10 of these mystery purchase tests.
· As a result of this premises licence review, Ms Purewal had increased the period of the tests from once a quarter to once a month and this would be maintained in the future to keep the pressure on the awareness of the ‘Think 25 – Challenge 21’ Policy.
· Stocks of alcohol for sale had been removed from the ends of aisles and following an audit of the CCTV system, a digital system now covered all of the shop area.
At this point, Tesco requested that the Panel see part of their training video on Age Restricted Products Sales. The video showed examples of test purchases and interviews with Managers and staff on the ‘Think 25 and Challenge 21’ Policy. After viewing part of the video for approximately 5 minutes, Mr Whur stated that the remainder of the video continued in a similar theme and also included a questions and answer session. The video was currently being updated for the fourth version and staff used the video in the initial and refresher training.
Mr Whur then referred to the questions raised in paragraph 10.1 of the Director of Environmental Services’ report and stated that the store had been moved into a heightened level of management. The review had reverberated through all staff in the store and stores both in Leicester and nationally. Ms Purewal had previously had a good relationship with Sgt S Moore in the Licensing Team, and now that contact had been made with Insp Rixon and PC Webb, a new relationship could be developed so that the Police could ring and ask Ms Purewal any questions they had in relation to any Tesco store in their area.
Mr Whur referred to the paragraphs 11.19, 11.20 and 11.23 of the Guidance issued under Section 182 of the Licensing Act 2003, and stated he felt that the power to suspend a licence was really for operators who were not listening or to allow time for additional steps to be put in place to address issues, but he did not feel that Tesco were in that position. He expressed the hope that, in view of what Tesco were doing, and had done since the review was announced, it would be disproportionate to suspend the premises licence. Ms Purewal had carried out an audit at the store and there was no objection to the additional conditions (d) and (e) above as suggested by the Police. Members were requested not to pursue condition (b) above, as Tesco felt that this would be covered by them having 3 Personal Licence Holders at the store. This would mean that there would always be a personal licence holder in the store, except possibly for breaks. It was also requested that the refresher training should not be every 3 months, as suggested by the Police, but every 6 months, in line with Tesco’s current policy, in view of the measures in place such as till prompts, ‘T’ Shirts, badges and posters on display for ‘Think 25’. Every 3 months would be too onerous for audit purposes.
Tesco felt they had looked closely at all the causes leading to the review and had focused on what they felt was a balanced and proportionate response.
Following questions from Members of the Panel, Mr Whur and the representatives from Tesco stated:-
· There were no figures available for how many attempted purchases by under-age persons were refused, as no records were kept. From experience it could be 5-6 times in an evening.
· Tesco did not keep refusal logs as a business, as they felt that their due diligence measures were strong enough. However, the possibility of capturing till prompt data asking operators to indicate ‘Yes/No’ to questions on whether the person looks over 25, and was ID requested and provided, was currently being investigated with a view to using it to provide a refused sale log.
· Although the part of the DVD shown to the Panel had scenes from a superstore, there were specific examples relating to Express stores later in the DVD. There were also staff questions and answers on the DVD that were taken from Express staff. The latest version of the DVD being developed also included a contribution from the National Manager for Express stores.
· One benefit of Express stores was that there was more interaction with customers, as they were smaller in size, and staff developed an awareness of whether or not a person was a regular customer.
· Validating sales for staff employed for less than 3 months could cause disruption to customer service.
· Approximately 7-10% of turnover was related to sales of alcohol and of this approximately 90% of the sales related to alcohol being sold as part of a multi buy shop. i.e as part of a meal deal or part of a larger number of food products. Tesco stores were not generally seen as a destination off-licence.
· A store guard was employed at the store, and security guards were not provided at all stores. The security arrangements had changed and security was now provided from 3pm to 11pm on 5 days out of 7. The days off were changed each week so that they were not the same days every week.
PC Webb referred to the Tesco Due Diligence Pack that had been circulated prior to the meeting, and commented that, whilst Tesco were offering to provide 3 Personal Licence Holders (PLH) at the store, their own guidance in the Pack stated that there should be 3 PLH’s in all stores. He asked whether it was normal for Express or Metro stores to have 3 PLHs. Mr Rawlings stated that there were sites where only 2 PLHs were on site, so to have 3 PLHs at this store would be an enhanced provision.
Insp Rixon commented that he felt the impact of the DPS at the premises had been glossed over and was disappointed that the new DPS at the store had not made any contact with the Police. He asked if this would improve in the future. In reply Mr Whur stated that Tesco had brought in a manager with 17 years’ experience and that the contact would be maintained in the future. Ms Purewal would be contacting the Police after the meeting to discuss the community alcohol partnership scheme and future liaisons. Mr Wooley stated that he had no knowledge of the outstanding issues when he took over in October 2012. He was angry that they had missed the last meeting with the Police, for which he apologised, and he had not been satisfied with the reasons given for not attending. He was in Leicester a couple of times a month and would be happy to attend the meetings. Ms Purewal also stated that had she been aware of the invitation to attend the meeting she would have done so with Mr Rawlings and the store manager. It was also noted that the store enjoyed good working relationships with the local Beat Officers and an offer had been extended to them for them to have a presence in the store. Mr Rawlings also stated that he was having a meeting in due course with his store managers and extended an invitation to Insp Rixon to attend. Insp Rixon welcomed the invitation and felt re-assured by what he had heard.
The Solicitor to the Hearing Panel advised the Members of the options available to them in making a decision. Members were also advised of the relevant policy and statutory guidance that needed to be taken into account when making their decision. The Panel were advised that they could depart from the adopted Policy or guidance provided they gave reasons for doing so.
In reaching their decision, Members felt they should deliberate in private on the basis that this was in the public interest, and as such outweighed the public interest of their deliberation taking place with the parties represented present.
The Licensing Team Manager, the Solicitor to the Hearing Panel, Insp Rixon, PC Webb, Mr Whur, Ms Purewal, Mr Rawlings, Mr Wheeler, Mr Wooley and members of the public then left the meeting.
Adjournment of Meeting
At 11.32 am the Chair adjourned the meeting for 15 minutes.
The meeting reconvened at 11.47 am. Councillors Byrne, Clarke and Sangster were present.
The Members gave the application full and detailed consideration.
The Solicitor to the Hearing Panel was recalled to give advice to the Members on the wording of the decision.
The Licensing Team Manager, Insp Rixon, PC Webb, Mr Whur, Ms Purewal, Mr Rawlings, Mr Wheeler, Mr Wooley and members of the public returned to the meeting.
The Chair informed all present that they had recalled the Solicitor to the Hearing Panel for advice on the wording of their decision.
that the premises licence be suspended for one month and that the conditions proposed by Leicestershire Police which are listed at paragraphs 9(b), (c), (d) and (e) of Appendix B to the report be added to the existing premises licence (LEIPRM0453) as follows:-
a) Any employee that has been employed at the premises for less than 3 months prior to making a sale of alcohol must obtain authorisation from a member of staff that has been employed at the premises for longer than 3 months.
b) A personal licence holder should be present on the premises whenever a sale of alcohol is made.
c) The licence holder will ensure that the premises has a digital CCTV system which will cover any area of the shop used to display alcohol for sale. This system will be maintained in accordance with the Information Commissioner’s CCTV Code of Practice and recorded images will be made available to the Police within 24 hours of making a formal request.
d) All staff will receive documented training regarding the company’s Challenge 25 policy before they are allowed to sell alcohol and this training will be repeated every 3 months, in order to retain focus. Signed records of that training to be kept on site and made available to Council Licensing Officers and the Police on request.
The reasons for Members making their decision were that:-
a) They had listened to all of the representations made at the hearing and had taken into account what had been said and had also taken into account the licensing objectives, the key ones being crime and disorder, public safety and especially protection of children from harm.
b) They were very pleased that Tesco realised the seriousness of the review and they knew that they had the options of:-
· Rejecting the review application
· Modifying the conditions of the licence
· Removing the designated premises supervisor
· Suspending the licence for a period not exceeding three months
· Revoking the licence
c) Members had applied their minds to these options and had taken into account submissions from both parties.
d) Members added that they realised Tesco had a very good training and audit system in place but they felt that the decision was proportionate and reasonable and the conditions were appropriate in the circumstances of this case.
Adjournment of Meeting
At 12.20 pm the Chair adjourned the meeting for 10 minutes.
The meeting reconvened at 12.30 pm. Councillors Byrne, Clarke and Sangster were present.