Report by Head of Governance and Law
Minutes:
The Chair welcomed everyone to the meeting and introductions
were made. He then outlined the
procedure that would be followed and invited the Applicant to speak in support
of his application.
APPLICANT
Mrs MacLeod spoke on behalf of the Applicant. She advised that Mr Serapiglia was a member
of a large Italian family. His father
moved to Scotland in 1956 and has had an ice-cream van since 1957. No objections have been made in the past for
Mr Serapiglia’s previous applications for renewal and there have been no
objections to him in the other Council areas he operates. Mrs MacLeod then read out the following
statement on behalf of the Mr Serapiglia’s Solicitor:
I have been asked by Patrick Campbell Corcoran of Miller
Samuel Hill Brown to represent Mr Serapiglia at today’s Hearing. I confirm that my instructions are to ask the
Board to grant the Application but not to impose on the new Licence a newly
worded condition which replaced a condition on Mr Serapiglia’s previous Licence
which prohibited trading within 100m of any establishment selling goods similar
to those being sold by Mr Serapiglia.
The New Condition which I will read out shortly comes as a
result of challenges made by Mr Serapiglia and his advisors who are not happy
with the newly worded condition which they consider void from uncertainty and ultra vires.
I am accordingly asking the Licensing Authority to use the
discretion referred to and not apply the New Condition to Mr Serapiglia’s
Licence.
Background
Mr Serapiglia trades in parts of Kilcreggan, Rosneath,
Garelochhead, Rhu, Helensburgh, Cardross, Tarbet, Arrochar, Luss, Oban,
Campbeltown, Cowal, Inveraray, Furnace, Lochgilphead, Ardrishaig and
Tarbert.
Two Luss shop-keepers and a Councillor have been vociferous
in their opposition to Mr Serapiglia’s ability to trade in Luss and have relied
upon Condition 17 of the currently extant Licence (the “100m Condition”).
Mr Serapiglia instructed Miller Samuel Hill Brown to apply
to vary his Street Trader’s Licence by way of removing the 100m Condition. The Application to Vary was first heard on 24th
January 2018, continued to 21st March 2018, 16th May 2018
and 20th June 2018 on which date the Committee refused the
Application to remove the 100m Condition.
A Court challenge was raised by Mr Serapiglia’s agents. The case did not proceed as it would not have
concluded before this Hearing and it was agreed that this is the correct forum
to debate the New Condition at the same time as renewing Mr Serapiglia’s
Licence.
My instructions are to the effect that the 100m Condition
and the New Condition are both ultra
vires and separately void due to uncertainty. At earlier Hearings on this matter discussion
centred on the reason for the 100m Condition with some Councillors accepting
that it simply amounted to an attempt to unfairly protect local shops from
competition. The Committee appears to
have accepted one or both of those arguments, and have now decided upon the New
Condition which is to the effect that:-
“A mobile Street
Trader shall not trade in any one location for longer than 30 minutes before
moving to another location, not less than 200 metres away and shall not return
to a previous location within the same calendar day. If a Licence Holder requires to trade in any
one location for a duration which is longer than 30 minutes, they must ensure
they have obtained the necessary planning permission and have sought and
obtained exemption from the provisions of this Condition from the Licensing
Authority. This Condition shall not
apply to mobile Street Traders who are operating in an area which has been
defined as an “Economically Fragile Area” in terms of Argyll and Bute Council’s
Local Development Plan, adopted in March 2015 (a copy of the map detailing said
Economically Fragile Areas is attached as Appendix 1 to these conditions).” (the
“New Condition”)
Luss is not an Economically Fragile Area.
Mr Serapiglia’s advisors consider that the New Condition is
also ultra vires and also void from
uncertainty. The arguments made
previously on Mr Serapiglia’s behalf, and which appear to apply to the New
Condition, are as follows.
Ultra Vires
The Sheriff court decision of McCluskey v North Lanarkshire
Council 2016 SLT (ShCt) 31 is the leading authority. This case concerned a restriction on burger
vans operating within 250m of any school.
At paragraph 17, the Sheriff narrates that the licensing authority was
of the view that it was acting within its powers by imposing the condition in
so far as it was furthering the aim of reducing childhood obesity.
At para. 73, the Sheriff held that a similar condition to Mr
Serapiglia’s is “unqualified and amounts to a blanket ban”. It goes on, at para. 75, to consider the
terms of para. 10(1) of Schedule 1 to the 1982 Act, and at para. 76 the last
sentence, the Sheriff holds that if “the effect of the condition is to require
street traders to do more than a licensing authority is empowered to require of
them the condition must be held to be ultra
vires of the local authority.”
At para. 77: “In
analysing the condition the first question to be asked is what is the effect of
the condition? This will depend upon
what it requires the pursuer to do…The next question to be asked is what
effect, if any, this has on the street trader’s contracts or dealings with her
customers.”
As regard the first question, the effect of the New
Condition will, given (1) the small size of Luss and (2) the limited roads that
it is expected that Mr Serapiglia be allowed to trade from, amount to a severe
restriction on the amount of time that Mr Serapiglia be able to trade in
Luss. This will clearly be to the
benefit of local shops, and reduce competition.
On the second question, the effect of the New Condition will
be to restrict heavily the volume of customers that Mr Serapiglia could deal
with.
Returning to McCluskey, at para. 83: “…the condition
attached to the licence must be for a licensing purpose and not for any ulterior
purpose.”
At para. 85 the Sheriff concludes that the licensing purpose
for street traders is “the preservation of public order and safety and
prevention of crime”.
At para. 87, the Sheriff quotes from a Government circular
which notes that the “purpose of licensing is not to restrict trade or
competition”.
At para. 100: “I am
satisfied that Parliament cannot have intended local licensing authorities to
have the implied power to attach a condition with such a significant effect on
the commercial contracts of street traders.”
My submission would therefore be that the New Condition
falls foul of McCluskey, in so far as it goes not appear designed to address
the “preservation of public order and safety and prevention of crime”. In reality, the effect of the New Condition
will instead be to restrict trade and restrict competition – something that
McCluskey explicitly warned against. In
the circumstances, the New Condition is ultra
vires and should not be applied to Mr Serapiglia’s licence.
Void from
Uncertainty
A separate challenge to the New Condition is that it should
not be applied to Mr Serapiglia’s licence because of how lacking in
specification it is. Given that the
breach of the condition could amount to an offence, and a loss of a licence,
one would have thought that the Committee would have ensured that the New
Condition was clear.
For example:-
“…shall not trade in
any one location for longer than 30 minutes…”
When does the clock start – when one arrives at a pitch,
when customers begin to migrate toward the ice cream truck, or when the first
transaction is entered into? If one
arrives at a pitch, waits 30 minutes, and no customers attend, does that count
as trading? Does the clock pause where
there are no customers, or here the trader has to take a break from serving
customers? What happens to transactions
that are entered into before the expiry of the 30 minutes, but conclude
afterwards? Given the hostility that Mr
Serapiglia feels he has experienced from local shops, it does not seem outwith
the realms of possibility that he may be timed by owners of local shops.
“…moving to another
location, not less than 200 metres away…”
How does one measure 200m – is it as the crow flies, or as
one drives?
One of the objections is that Mr Serapiglia traded on 30th
June and 1st July 2018, in breach of the 100m Condition. Mr Serapiglia’s position is that he was
outwith the 100m as one drives. Whether
that is a matter of opinion or not, what is argued is that (1) the 100m
Condition is ultra vires, accordingly
is void and, therefore, not capable of being breached, and (2) following advice
from his solicitor that it was legal to do so, Mr Serapiglia traded in Luss on
30th June and 1st July 2018 for the first time in very
many months.
The other objection appears to be one based on health and
safety, given the narrow street.
Photographs have been lodged in that regard. Mr Serapiglia’s position is that when the
photographs were taken he was in the midst of asking customers to move back in
order that he could move his ice cream van and turn around, in order that
customers were in a safer location. The
photographs do, of course, prove a demand for his ice-cream.
In his letter of objection Councillor Freemen refers to
trading in Murray Place. That part of
the complaint is factually inaccurate as Murray Place is, along with School
Road, part of the areas of trade allowed in the Schedule to the current
Licence.
QUESTIONS FROM
OBJECTORS
Councillor Freeman referred to Mrs MacLeod advising that Mr
Serapiglia operated at Murray Place in line with his licence. He asked Mrs MacLeod if she could confirm
that Mr Serapiglia did not have the permission of the landowner to operate in
Murray Place and that street traders do require the permission of landowners to
operate on their land. Mrs MacLeod
advised that she did not have instructions about that.
Councillor Freeman referred to the areas of trade listed by
Mrs MacLeod and asked if she was indicating that Mr Serapiglia traded in these
communities on a daily basis. Mrs
MacLeod advised that she was reading out the list of areas where Mr Serapiglia
was permitted to trade. Councillor
Freeman asked if this was with the permission of the landowners and Mrs MacLeod
replied yes.
Councillor Freeman asked Mrs MacLeod if she could confirm
that the streets listed were the only areas where Mr Serapiglia actively
traded. Mrs MacLeod advised that as far
as she was aware Mr Serapiglia only traded in the areas permitted on his licence.
Councillor Freeman asked if Mr Serapiglia argued that he
only traded on the streets listed on the schedule. Mrs MacLeod explained that he could be
invited to an event like the Cowal Games and that would be allowed and in terms
of his street trader’s licence he could only trade in the areas listed on his
licence.
Councillor Freeman referred to the McCluskey V North
Lanarkshire Council case and asked if Mrs MacLeod would accept that this
related to the promotion of healthy eating in school and was a different issue
and did not apply to Mr Serapiglia. Mrs
MacLeod advised that she had explained why she thought that it did apply. She referred to the commercial contracts of
street traders not being restricted.
OBJECTORS
Councillor Freeman
Councillor Freeman advised that most Members of the
Committee would be well aware of the history and well aware of the number of
complaints he has received from his constituents and that there have been long
standing issues. He said that Members
would have been aware of the numerous complaints he has received over the past
year or two relating to the operations of Mr Serapiglia at Luss and the view
was that when he was operating in Murray Place he was in breach of the 100m
rule which was part of the conditions attached to his licence. He indicated that there were a number of
conditions attached to his licence. He said that Mr Serapiglia regularly failed
to comply with Condition 3 which related to wearing a badge. He advised that his constituents have argued
that Mr Serapiglia very seldom wore his badge as required by the
Condition. He said that his constituents
have argued that they have in the past requested to see Mr Serapiglia’s licence
which, Councillor Freeman said he believed they could do, and this request was
refused. He said that his constituents
have complained to the Police and that no action has been taken. Councillor Freeman advised that as far as the
schedule was concerned, it was quite clear to him and others that Mr Serapiglia
operated in many areas which were not included on his schedule. He said to the Committee that they may recall
that this was raised in the past with Police Scotland but Police Scotland
confirmed that the photos provided by one of his constituents were not dated
and did not show Mr Serapiglia actually operating at that time. Councillor Freeman advised that over the past
few months many photos had now been taken which he had copies of and that they
did show Mr Serapiglia in his van. He
indicated that they had clear evidence which could be taken to Police Scotland
which showed Mr Serapiglia does not show his badge and operates on a number of
streets not on his licence. Councillor
Freeman confirmed that the Objectors believed the new Condition 17 should apply
to his licence. He said that he was not
aware of any other street trader that has had that Condition waived.
Mr Brown
Mr Brown advised that he and his partner ran a reputable
business which was established in 1970 and that they were the third owners
during this time. He advised that they
have 8 local employees and that their objection was due to the fact that the
Applicant continued to trade within 40m of their business. He said that the only problem they had was
with Mr Serapiglia continuing to trade against Condition 17.
QUESTIONS FROM
APPLICANT
Mrs MacLeod asked Councillor Freeman how many complaints he
had received. Councillor Freeman advised
that he had received at least a dozen as well as from Luss and Arden Community
Council.
Mrs MacLeod ask why there had been no more objections to
this application. Councillor Freeman
confirmed that the other objectors were happy for him to submit an objection on
their behalf.
Mrs Macleod asked Councillor Freeman if he could name these
objectors. Councillor Freeman advised
that due to Data Protection he would be loathed to name anyone without their
written consent. He advised that at
least one of the named was produced to Legal Services along with the photos
taken by an elderly constituent in Murray Place.
Mrs MacLeod referred to comments that Mr Serapiglia traded
in areas outwith his areas of trade and suggested that he may have been parked
up in these areas having lunch.
Councillor Freeman advised that he would be happy to provide photos
which showed the van, the registration of the van and Mr Serapiglia serving
customers at the van. He advised that he
would be happy to provide copies of these which were dated and provided the
names of the streets.
Mrs MacLeod asked, if the Police Scotland had this evidence,
why they had not objected to this application.
Councillor Freeman advised that the reason Police Scotland gave was
because the photos were taken by an elderly constituent and were not dated and
did not show Mr Serapiglia operating from the van on these occasions. He said that the Police were commenting on
the previous photos and not the new ones which had now been taken.
MEMBERS’ QUESTIONS
Councillor Trail sought clarification on what the Committee
were being asked to decide on today. Mr
Reppke advised that this was an application for renewal of Mr Serapiglia’s
existing Street Trader’s Licence. He
pointed out that prior to the period of renewal the Council introduced new
conditions across a range of licences including street traders and it was
indicated to existing licence holders that the Committee would be likely to
impose these new conditions. He
confirmed that the Committee had before them an application for renewal and a
submission from the Applicant’s Agent that you should not apply Condition 17 to
that licence. He advised that it was at
the discretion of the Committee to apply or not apply a standard condition to
this licence.
Councillor McCuish asked the Objectors how long Mr
Serapiglia had traded within 40m of their business. Mrs MacDonald advised that at times it had
been up to 2 hours. She said that she
had not gone out recently to time him as she had been working.
Councillor McCuish asked if there had been any objections to
Mr Serapiglia from other parts of Argyll and Bute. Mrs MacLeod advised that these were the only
objectors and that he had never had objections before. She confirmed that in other areas he had
never received any objections.
Councillor Currie referred to a town such as Inveraray where
there could be more than one shop close to each other selling ice cream. Mrs MacLeod advised that the more facilities
we had the better it was for Argyll and Bute
Councillor Kinniburgh asked Mr Serapiglia if he ever had
problems parking in Luss as since his current licence was granted there had
been a parking review carried out in Luss and, although a Traffic Order was not
taken forward, what did come out of it was the village experienced exceptional
traffic in and out of it. Mr Serapiglia
advised that he had not personally experienced any difficulty. Mrs MacLeod advised that the photos provided
in the paperwork to the Committee showed Mr Serapiglia asking his customers to
move so that he could move his van to a safer place.
Councillor Kinniburgh asked Mr Serapiglia if he had ever
operated outwith the areas covered in his licence. Mr Serapiglia replied never. He indicated that there was only one occasion
when he drove onto a street in Luss which he thought was School Road but was
not and when he realised this he left.
He said that was a genuine mistake at that time.
Councillor McCuish asked the Objectors what types of produce
they sold. Mrs MacDonald advised that
they sold hot and cold filled rolls, cakes, pies, hot and cold drinks.
Councillor McCuish asked Mr Serapiglia what types of produce
he sold. Mr Serapiglia advised that he
sold a selection of luxury Italian ice cream with many flavours and many
toppings. He also sold slush puppies and
candy floss and confirmed that there was a demand for his produce.
Councillor Kinniburgh referred to Condition 17 and asked Mrs
MacLeod if she was asking for this to be removed completely from Mr
Serapiglia’s licence. Mrs MacLeod
replied yes on the basis that it was ultra vires, vague and restricted competition. She asked that it be removed from all the
areas referred to in his licence.
Councillor Kinniburgh referred to his concerns about Luss
and the amount of traffic in and out of it which was a concern of the community
too. Mrs MacLeod advised that Mr Serapiglia
shared his concerns and that he would only trade if he was able to get
parked. She advised that Mr Serapiglia
was not going to waste time looking for a parking space.
Councillor Kinniburgh asked if there were other areas as
lucrative as Luss. Mr Serapiglia advised
that Luss was his first port of call and that if he could not get parked there
or if it was not busy he would move on.
He confirmed that he was not there 7 days per week although his licence
gave him the opportunity to do that. He
said that he was not interested in working 7 days per week and that he just
wanted to make a living and go home.
Councillor Kinniburgh asked Mr Serapiglia how often he
traded. Mr Serapiglia replied that this
was mostly at the weekends. Mrs MacLeod
commented that Luss was popular in the summer time. She said that Mr Serapiglia was offering a
discrete trade – Italian ice cream - and that tourists welcomed the provision
of that facility in this area.
Councillor Kinniburgh asked Mr Reppke to comment on the
interpretation of Condition 17 by the Applicant’s Agent. Mr Reppke advised that the views expressed were
not accepted by the Council and if needs be it would be debated at another time in a
different forum.
Councillor McCuish asked the Objectors what difference it
made to them whether Mr Serapiglia traded 40m away from their business or
further. Mr Brown advised that they lost
trade. He said that they were there all the time and that they had employees
and suggested that Mr Serapiglia came in and took the cream. He said it was like Amazon in the High
Street. He said that Mr Serapiglia was
in and out with no overheads like they had.
Councillor McCuish asked, given that Mr Serapiglia was only
there 2 days per week, how many days Mr Brown opened. Mr Brown advised that they were open 7 days
per week from April till December.
SUMMING UP
Objectors
Councillor Freeman advised that to recap it was clearly his
view that Mr Serapiglia operated on many streets that were not included on his
licence and that he held evidence to that effect. He advised that as it has not been accepted
today clearly his only route was to take this back to Police Scotland with a
further complaint to investigate it. He
said that he had also highlighted that Mr Serapiglia failed to comply with
Condition 3 as he did not wear his badge and that he has refused to make it
available to those that have asked which he is required to do under Condition
3. He commented that his constituents
paid non-domestic rates the same as other businesses in Luss. He advised that another 3 businesses in Luss
have been affected and they have all confirmed in the past in writing that they
objected to Mr Serapiglia operating at Murray Place. He said that Mr Serapiglia operating in
Murray Place went against the previous Condition 17. He said that Mr Serapiglia operated without
the approval of the landowner ACHA and that ACHA had wrote to him and told him
he could not operate on this land. He
said that he believed Mr Serapiglia had not operated there since then. Councillor Freeman confirmed that they were
not asking that Mr Serapiglia’s Street Trader’s Licence not to be issued but
they were asking that Condition 17 should apply and that Murray Place should
not be included on the licence.
Applicant
Mrs MacLeod referred to Councillor Freeman’s comments about
his constituents paying taxes and rates.
She advised that Mr Serapiglia paid VAT and fuel duty and stressed that
business competition should not be stopped.
She advised that Mr Serapiglia displayed his badge at the front of his
van and that on the occasion when he was asked to produce his licence he was
serving a customer at the time and that he also had a large queue of
people. She advised that she was asking the
Committee to renew Mr Serapiglia’s licence and she noted that she did not think
there was any objection to it being renewed.
She advised that the only objection related to the wish of Objectors
that Condition 17 should be included on the licence. She said that she put it to the Committee that
any condition attached must be for licencing purposes and not an ulterior
purpose. She said that it was her view
that the objection did not relate to a licensing purpose and that the Objectors
wanted it applied so Mr Serapiglia would not affect their business. She said that the licensing purpose for
street traders was “the preservation of public order and safety and prevention
of crime”. She pointed out that no
objector was saying that Mr Serapiglia was causing a crime. She noted that the Objectors have advised
that other businesses were not happy and she commented that they were not here
today. She advised that the only
objections were from competitors and she questioned if they were really
competitors. She referred to Mr Serapiglia’s description of the products he
sold and she advised that she was not aware of the Objectors selling Italian
ice cream in their shop. She said that
the purpose of the licencing authority was not to restrict trade or
competition. She said that Parliament
would not have intended an authority to have the power to restrict a street
trader. She commented that the wording
of the Condition itself was vague and asked how it could be determined where
200m started and finished and when 30 minutes started. She advised that if the Condition was
included it could attract an appeal. She
asked the Committee not to apply the Condition.
She advised that Mr Serapiglia ran an excellent business and that the photos
lodged showed there was a demand for his service. She advised that Condition 17 would be a
restriction on trade and was too vague to make sense.
When asked, both parties confirmed that they had received a
fair hearing.
Councillor Freeman left the meeting at this point.
DEBATE
Councillor Trail advised that he had heard a good deal but a
lot had been to the point. He advised
that in principle he had not heard a good case for not applying Condition
17. He said that the Committee were not
here to decide whether there was competition or not. He advised that he would have no hesitation
in applying Condition 17 as the Committee had agreed the wording fairly
recently.
Councillor McCuish advised that he thought the guidance they
received was good and the guidance received was on the licensing purpose. He said that he did not think the licensing
purpose had been met here. He advised
that the Objectors were raising concerns about the effect on their
business. He said that he could not
find a reason to include this Condition.
Councillor Currie advised that normally when he said
something he stuck with it. He said that
he thought this was a stupid condition which was anti competition. He questioned how it could be policed. He also commented that it was vague. He said that it would be crazy to put this
Condition on the licence. He asked why
the complaints were just from Luss. He
referred to bigger areas like Inveraray.
He commented that he often seen ice cream vans parked outside village
shops and there were no objections. He
commented that if there were that many people then surely there was enough to
go round everyone. He said there was
absolutely no need for the Condition.
Councillor Kinniburgh advised that he had his own view as to
why it was only Luss. He referred to the
amount of traffic that went in and out of Luss and that the Area Committee had
picked this up in a report to them recently. He said that he thought that was
why there was a problem in Luss. He said
that he thought Condition 17 should remain quite simply because it had been
discussed at length over a number of meetings.
He advised that the Committee had asked Officers to go away and look at
them again and that they came back with proposals which the Committee
accepted. He advised that he could see
no reason to remove Condition 17. He
referred to Councillor Freeman’s request to remove Murray Place from the
licence. He advised that he could see
justification from removing Murray Place or School Road based on the traffic
management plan. Having said that, he
advised that he thought the issue would be Mr Serapiglia getting parked in
places he was supposed to park. He
commented that he had heard from Mr Serapiglia today that if he could not get
parked he would remove himself and go elsewhere. He said that if the Committee were to remove
these places from his licence then this would be restricting trade.
Motion
That the application be granted and that Condition 17
remains and that Murray Place and School road remain on the Licence.
Moved by Councillor David Kinniburgh, seconded by Councillor
Richard Trail
Amendment
That the application be granted as applied for and that
Condition 17 be removed on the basis that the Objectors have not based their
objection on licensing issues but purely for commercial reasons.
Moved by Councillor Roderick McCuish, seconded by Councillor
Audrey Forrest
The Amendment was carried by 5 votes to 2 and the Committee
resolved accordingly.
DECISION
The Committee agreed to renew Mr Serapiglia’s Street Traders
Licence and that standard Condition 17 be not applied to that Licence.
(Reference: Report by Head of Governance and Law, submitted)