When I was a trainee solicitor I made a very early decision to become a licensing lawyer for two main reasons: my principal, Les Green, took me out for fabulous lunches and dinners and everything you needed to know was contained in two Acts of Parliament easy choice good lunch and dinners and one text book.

Twenty five years on, the role of a licensing lawyer has changed considerably. Gone are the lengthy lunches and dinners, replaced by having to research so many points of reference to see what is current and what is about to change.

The licensing law landscape may have been changed at root by the Licensing Act 2003 and the Gambling Act 2005, but the constant additional changes by Statutory Instruments and other pieces of legislation that impact on licensing, entertainment and gambling is phenomenal.

Those who are interested in keeping up to date with such developments will have seen that the Government intends that the new Immigration Bill contains a range of powers, including measures to deal more effectively with businesses offering employment to those here illegally. The draft Bill can be seen at the following link: http://www.publications.parliament.uk/pa/bills/cbill/2015-2016/0074/cbill_2015-20160074_en_1.htm

This makes for interesting reading, particularly Parts 2 and 3 of Schedule 1 to the Bill, which propose a number of amendments to the Licensing Act. These will impact on premises licences and personal licences and include the power to refuse licences for the “prevention of illegal working in licensed premises”, and the Secretary of State being designated as a responsible authority.

There are detailed descriptions of rights of entry and appeals in relation to these areas but on my interpretation of the draft Bill, which had its first reading on 17 September 2015, there is significant confusion as to how it will practically impact on the regulator’s ability to, for example, review a premises licence. I think some careful thinking and development of the drafting needs to take place before this can be integrated into the Licensing Act.

However, this has been the case previously and we are still left with the confusion over the introduction of summary reviews thanks to the Violent Crime Reduction Act 2006, which has not been smoothly integrated into the Act.

In the next E-News Colin Manchester and I will produce an article in relation to a live example we have at the moment with regards to summary reviews and the surrender of a premises licence. This is an interesting developing point in itself but outlines how the introduction into the existing primary legislation of another Act of Parliament can often lead to disjointed law which leads to confusion for all parties.

On top of this we have to constantly keep abreast of where late night levies are being considered and, importantly, the fact that the Government is considering changing the procedures to introduce a levy to make it a more simplified process.

We recently attended the ALMR meeting and we are aware that Kate Nicholls is lobbying on behalf of the trade to ensure that this is dealt with in a even, handed fair way.

We also have the issue in relation to shop opening hours on Sundays. In relation to this, a Parliamentary Briefing Note has been published in the House of Commons Library. The aim of this is to look in detail at the potential for allowing shops to open for longer hours on a Sunday.

Those of us who have been involved in licensing for long enough will remember the flurry of activity when Sunday dancing regulations were relaxed, and this may well lead to significant work, should the Government decide to relax the restrictions on opening hours on a Sunday.

We will continue to monitor all of these developments, and report through subsequent newsletters as we are able to do so.

It does seem a long time ago since Les Green would call me in the office to go and pick him up in his car from another episode of “client relationship development”.

The Gambling Commission is currently preparing its advice to the Department for Culture Media and Sport on the DCMS review of the fees the GC can charge for applications..

Comments can be emailed to the GC at Discussion@gamblingcommission.gov.uk by 27 August 2015, and a workshop is being arranged with the main trade associations, to be held on 24 September 2015.

This discussion comes about following the previous government’s response to the Select Committee’s report “The Gambling Act 2005: A bet worth taking?”, in which it made it clear that it would consider re-evaluating fees and costs once the changes to the regulation of remote gambling had been implemented.

The GC’s website says that “The Commission is planning to advise the Government to amend the current fees regulations, to take into account the significant changes in the population of operators that we regulate and to address identified problems in the current fees structure.”

It will be interesting to see the full year’s data following the Gambling (Licensing and Advertising) Act 2014 being implemented at the end of last year, as this will doubtless be the information that informs what the “significant changes in the population of operators” are and what, if any, problems exist. It is unlikely, therefore, that any review will take place until the start of next year, although ultimately the decision as to when to hold a review is a matter for the Secretary of State.

The GC has issued the discussion document so as to “explain our approach to recovering costs through licence fees, our current thinking on how the fee structure can be improved, and the implications of the 2014 Act on our costs, income and, therefore, on the fees needed to recover these costs”.

We would urge any interested party who wishes to make comments on GC fees to do so, at the email address set out at the start of this article.

I also wonder whether there might follow a review of Local Authority gambling premises licence fees, particularly relating to transfer applications. I have recently spoken to a local independent betting office operator in Southampton, who has operated one betting shop for twenty years. He is keen to take on two other betting shops which are currently on the market, following the operator going into administration, and was astounded to learn that the fee payable to the Licensing Authority to transfer the betting office premises licence from the previous holder to his company would be £1,080.00. I decided not to tell him that if he was buying a pub, the fee payable under the Licensing Act 2003 for an alcohol premises licence to be transferred from one company to another would only be £23.00. I hope that perhaps, when the review of the GC’s fees has been completed, there will be a further review of local authority fees, particularly relating to transfer applications.

It’s that time of year again – with pubs already inviting Christmas bookings, consider now the festive events you are planning, and whether your premises licence covers you for everything you want to do.

Christmas has a habit of creeping up on us – and of course other dates in the diary are looming, such as Hallowe’en and Bonfire Night – when you might have in mind special themed nights.

You can stage unamplified live music without a licence, and, since 6 April, amplified live music too to an audience not exceeding 500, between 8am and 11pm. If you want to put on live music outside these times, and are not already licensed for this activity, you need to give a Temporary Event Notice, or TEN, to cover you. A TEN can also be used to extend your operating hours generally, or to enable you to sell alcohol in your outside area, something that might appeal for Bonfire Night, for example, if your licence des not currently permit it.

Many licences automatically extend your hours for alcohol sales on New Year’s Eve to cover you until opening on New Year’s Day, but do check that yours does, if you are proposing to stay open later than usual. Also be aware that this entitlement – a carry-over from the previous legislation – does not extend to other licensable activities unless these have been specifically applied for, so you may need to consider getting a TEN for live music if you are planning to hire a band to see in the New Year with your customers.

Also check that you have not already used up your allocation of TENs for this calendar year – each premises can only give 12 in any year, spanning not more than 21 days in aggregate. A single TEN can last for up to 7 days, or 168 hours, though, so, subject to not exceeding your maximum permitted aggregate days, you could use a single TEN to cover you for the whole of Christmas week.

Since 2011, you can give a TEN as few as 5 clear working days (not including the day the TEN is received by your Local Authority, or the first day of the event) before you need to rely upon it. However, I would not recommend that you use these so-called “late TENs” for important income-drivers like Christmas celebrations. This is because there is no provision for you to respond to any objections received from Police or Environmental Health – the Notice will simply be rejected.

In any case, you will want to be publicising your special events well in advance, so complete the TEN process as soon as you can. A standard TEN needs to be submitted at least 10 clear working days in advance – under this procedure, if objections are received, you will have chance to rebut them at a hearing.

The absolute last date for receipt by the Local Authority of a standard TEN for Christmas Eve is 9 December, and for New Year’s Eve, 14 December.

The Committees of Advertising Practice (“CAP”) are responsible for writing and maintaining the UK Codes of Non-broadcast and Broadcast Advertising, (“the CAP Codes”), administered by the Advertising Standards Authority, which govern all advertising campaigns in the UK.

As of 8 May this year, the Gambling Commission’s (“GC”) Licence Conditions and Codes of Practice (“LCCP”) have been amended so that all gambling operators are explicitly required to comply with the CAP Codes. A further amendment from the same date expressly requires all licensees to comply with the provisions of the Codes that relate to “misleadingness” and free bets.

This serves to highlight the importance that the GC accords to protecting the public from misleading gambling advertisements, particularly those offering free bets. This results, at least in part, from the relatively high volume of consumer complaints that the GC receives in this area.

Section 3 of the CAP Codes deals with misleading advertising generally, and Section 16 specifically with gambling. Marketing material must not mislead and must contain all material information enabling the consumer to make informed decisions in relation to a product. It must also state any significant limitations and qualifications clearly. The importance of this for free bets is clear – any limitation on benefitting from a free bet, such as a requirement on the customer to first stake a certain amount of his own money or to stake a certain amount before claiming a prize– must be clearly set out.

A further amendment to the LCCP which, again, took effect on the 8 May, bolsters the prohibition surrounding portraying children and young persons in gambling advertising. This prohibition was already laid down in paragraph 16.3.14, but the LCCP now repeat it, as Ordinary Code provision 5.1.6.3. No-one who is, or appears to be, aged under 25 may be featured gambling or playing a significant role in gambling marketing. However, the new LCCP go on to clarify the exceptional circumstances in which children or the young may be shown, and reiterate the provisions that Section 16 of the CAP Codes make about this.

In short, the restriction on allowing people who are, or who seem to be, aged 18-24 to feature in marketing of online gambling does not apply to images that appear “in a place where a bet can be placed directly through a transactional facility”. This will include images on a gambling operator’s own website. This is subject to the further qualification that the individuals concerned may only be used to illustrate specific gambling selections where they are the subject of the gambling transaction offered. That is to say that they may only be shown in the context of the event being gambled upon, and not in a gambling context.

It is worth noting that the LCCP changes relating to the application of the CAP Codes retain the requirements as Ordinary, rather than Social Responsibility, Coder provisions. The effect of this is that they do not have the force of Licence Conditions as such, rather they represent the GC’s view of best practice. This means that a breach of them will not, of itself, lead to the GC instigating a review of an operating licence or a prosecution. That said, breaches will be admissible as evidence in criminal or civil proceedings and must be taken into account in any case in which a court or tribunal thinks them relevant, and by the GC in the exercise of its functions. Any departure from Ordinary Code provisions must also be taken into account by the GC in the context of any ongoing licence review.

To coincide with the increased focus by the GC on the CAP Codes, the CAP themselves have been reviewing and amending their rules insofar as they apply to sales promotions. These are defined as a campaign providing an incentive for the consumer to buy a product using a range of added direct or indirect benefits, usually on a temporary basis, to make the product more attractive. Operators need to exercise some care to ensure that such promotions do not fall to be classified as gambling – in some circumstances they may, for example, where an inflated price for the product is charged to reflect the chance to enter into the promotion.

The changes to the CAO Codes surrounding running sales promotions follow a public consultation which was held in late 2014, and came into force on 1 May.
In common with all forms of marketing communications, sales promotions must not mislead, harm or offend their audience, and promoters must ensure that consumers are dealt with fairly at each stage. In addition, Section 8 of the Non-broadcast, or CAP, Code, sets out the rules applying specifically to sales promotions.

Section 8 was last reviewed as long ago as 2008, just after the Unfair Commercial Practices Directive (“UCPD”) came into force in the UK by means of its implementation by the Consumer Protection Regulations (“CPR”).

The CAP decided that it was time to review Section 8 again, to take into account developments in the interpretation of the UCPD in case-law surrounding its enforcement and, in particular, an appreciation of the impact of the Directive’s maximum harmonisation requirement .The implication of this is that the CAP Codes cannot create banned practices which go above and beyond those stipulated in the Directive itself.

The CAP review of the CAP Codes’ requirements surrounding sales promotions therefore focussed on amending them to ensure consistency with the CPR in light of increased clarity surrounding their interpretation. In essence, the changes confer greater flexibility on promoters to enable them to plan their promotions, while at the same time protecting consumers by ensuring that all information that they require in order to make a decision on whether or not to participate, is provided at each relevant stage. The CAP will develop supporting guidance n the new rules as required, and this is awaited.
Many of the new rules surround the requirements on promoters in cases where it is predicted that response might outstrip supply. Such promotions are now permitted, as long as the promoter can demonstrate that he has made a reasonable estimate of the likely uptake for the promotion and either that they were capable of meeting the response or that consumers had sufficient information, presented clearly and in timely fashion, to make an informed decision on whether or not to participate. In addition, if the promoter relies on an ability to meet anticipated demand but becomes unable to do so because of an unexpected high or demand or other unanticipated factors outside his control, he must ensure relevant and timely communication with applicants and consumers and offer a refund or suitable substitute product where harm to the consumer is otherwise likely to occur.

Promoters will therefore need to give consideration to the need to establish that they have undertaken due process in all these respects, if ever challenged.

The amendments to the CAP Codes also reflect an increased flexibility in the time limits for delivering prizes and for entry. Again, this move is to ensure consistency with the UPCD and CPR. The requirement to award prizes within 30 days is no longer set in stone, as long as the relevant marketing communications make the arrangements plain. In addition, promotions where the only limit is the availability of the pack may now be run, but ordinarily not of they are addressed to or targeted at children. As a general rule, the promotion will still need to stipulate a closing date.
Whilst the changes to the sales promotions will be of interest to some remote gambling operators who also offer such products, the changes to the LCCP are of more significance, applying as they do to all gambling operators. Operators should therefore familiarise themselves with both the general Sections of the CAP Codes that apply to all forms of advertising, and with the Sections specific to gambling advertising. They should be aware of the need to ensure that their marketing complies with all relevant provisions of the Codes, in light of the GC’s ever-increasing focus on this area.

Hackney Council had proposed a new licensing policy for 2016, which resulted in considerable opposition from premises licence holders, and in particular nightclub operators, in East London.

The draft policy, under consultation until 14 August 2015, was intended to replace the existing licensing policy which expires at the end of 2015. The proposed policy introduced “a borough-wide hours” policy which would clearly place any premises operating beyond midnight under extra scrutiny (with the exception of restaurants and cinemas). The special policy areas in Dalston and Shoreditch were intended to continue, which would make it incredibly difficult to get a late licence in those areas, despite the fact that eighty four percent of respondents to a public consultation opposed the new policy.

Dan Beaumont, who is a client of Woods Whur and owner of the Dalston Superstore and Dance Tunnel was quoted as saying: “it is a shame that a vibrant and creative London borough has to suffer a regressive and damaging licensing policy. Clubs are a vital part of Hackney’s success story over the last few decades – if this policy goes ahead we will all be poorer for it. It is vital to encourage new start ups to launch independent venues to keep Hackney and London an important cultural destination”. Speaking to the “Hackney Citizen” the Colombo Group’s Steve Ball echoed those sentiments;, saying: “No new bars being allowed will remove from young entrepreneurs the opportunity to do things better than the old guard. It is important that the next generation has access to the same opportunities”.

Hackney Council has now withdrawn its 2016 licensing proposal and will keep its current policy until next year. The news was not perhaps as good as the late night operators would have hoped for, in that the council had made it clear that they are only proposing to delay any decision by twelve months which, it says, will “give time for new consultation next year and opportunity for further engagement with residents and businesses”. A council mailshot confirmed that the council also plans to launch a high profile public debate on the borough’s night time economy. Any proposals will need to be approved by the Licensing Committee and the full council.

Emma Plouviez, Chair of Hackney’s Licensing Committee, made the following statement: “Unfortunately there was a minor error in the published consultation document. Although this was not related to the part of the consultation affecting night club opening hours, which is what we know has caused the most concern, you want to ensure that everyone who takes the time to respond to any council consultation can have confidence that they do so with the full facts…. We have already met with residents and business groups, but it is clear we need to listen further to all voices and opinions and we plan to host a debate on this later in the autumn. We hope that residents, visitors and businesses will join us to help shape a licensing policy for Hackney which everyone can understand and get behind.”

It is important that all those who are in interested in these developments in Hackney watch carefully for any new developments and make written submissions to Hackney Council when the consultation period starts again. We would be happy to help anyone who wishes to make a representation.

As recently announced, we have established a strategic relationship with Innpacked Training. This is to strengthen our commitment to training in the licensed sector and to offer a quality training solution to our clients.

Innpacked specialise in the training and development of the licensed trade and as such deliver a number of qualifications.

These include:

Level 2 Award for Personal Licence Holders – at your venue or on one of our courses held nationally.
Level 2 Award in Underage Sales.
Level 1 Award in Responsible Alcohol Retailing.
First Aid at Work (All Levels).
Health and Safety Course (All Levels).
Fire Safety Courses (All Levels).
Food Safety Courses (All Levels).

Innpacked can also develop bespoke customer service/induction packages and deliver workshops and courses unique to your business requirements. They can be your one stop training resource.

Their training centres are listed below:-

Birmingham
Bournemouth
Bristol
Folkestone
Hemel
Leeds
London (Covent Garden)
Maidstone
Manchester
Northampton
Slough
Southampton
Winchester
Worthing

To discuss any of the above, simply contact Innpacked on 08000 786056 or email Innpacked at woodswhur@innpacked.com they will be happy to arrange your place on a course or answer any specific questions you have.

 

I have recently been involved in a number of cases where localised initiatives and policies are at play which could make it very difficult for multiple operators to streamline their operations, so as to have the benefit of economies of scale whilst not infringing any of these local policies. Having to come to grips with responsible authorities wanting slightly differently worded conditions can be costly to an operator who has a good track record of promoting the licensing objectives. I can see the logic of not creating a “one size fits all” standardised pool of conditions, but consistency wherever possible would be hugely beneficial for all.

Also, localised issues such as not allowing applicants and responsible authorities to “finesse” the operating schedule to create conditions which promote the licensing objectives during the notice period can frustrate applicants. I am a big fan of the “qualified rep”… I get paid for the hearing, but at times you do wonder why you are there at all, when parties are so close to agreement.
The s182 Guidance gives Local Authorities clear discretion in creating a Statement of Licensing Policy which reflects local issues, needs and initiatives, to help in promoting the licensing objectives. Lest we forget, s4(1) states:

“A licensing authority must carry out its functions under this Act (“licensing functions”) with a view to promoting the licensing objectives.”

This means that all of its policies and decision-making must be focussed on promoting the licensing objectives. The authority must have regard to the S182 Guidance and its own statement of licensing policy when it makes its decisions. So, scope for localised policy, but a need to focus on the promotion of the licensing objectives.

Chapter 13 of the s182 Guidance needs careful consideration. The following paragraphs under “Fundamental Principles” are very important:

13.12 Statements of policies should make clear that:

• Licensing is about regulating licensable activities on licensed premises, by qualifying clubs and at temporary events within the terms of the 2003 Act; and
• Conditions attached to various authorisations will be focused on matters which are within the control of individual licence holders and others with relevant authorisations, i.e. the premises and its vicinity.

13.13 A statement of policy should also make clear that licensing law is not the primary mechanism for the general control of nuisance and anti-social behaviour by individuals once they are away from the licensed premises and, therefore, beyond the direct control of the individual, club or business holding the licence, certificate or authorisation concerned. Nonetheless, it is a key aspect of such control and licensing law will always be part of a holistic approach to the management of the evening and night-time economy in town and city centres.

These are two sections which sometimes can be ignored by the decision-makers within authorities which set artificial time limits for hearings. It cannot be fair for a premises licence holder, at a hearing with multiple objectors and representations, to deal with all of these issues in 20 minutes….especially when the Police are saying it isn’t fair also, as they cannot make their representation in such a small time frame. It can be very expensive for the Magistrates to unravel decisions made in undue haste. This is a local issue which I feel can cause significant difficulties to all parties in heavily contested cases.

Another issue which can cause problems is dealing with Cumulative Impact Policies (CIPs). My colleagues and I have all written articles about the difficulties in applying for licences in Cumulative Impact, or ”Stress Areas”. This can be very frustrating for an operator who already has licences in other CIP areas, with practices and procedures which promote the licensing objectives, but gets a push back from regulatory authorities who feel they must object just because the premises fall within a CIP area.

Authorities should look closely at the following:

Steps to be taken before adopting a special policy

13.29 The steps to be followed in considering whether to adopt a special policy within the statement of licensing policy are summarised below:

• Identify concern about crime and disorder; public safety; public nuisance and protection
of children from harm.

• Consider whether there is good evidence that crime and disorder or nuisance are
occurring, or whether there are activities which pose a threat to public safety or the
protection of children from harm.

• If such problems are occurring, identify whether these problems are being caused by
the customers of licensed premises, or that the risk of cumulative impact is imminent.

• Identify the boundaries of the area where problems are occurring (this can involve
mapping where the problems occur and identifying specific streets or localities where
such problems arise).

• Consult those specified in section 5(3) of the 2003 Act, and subject to the outcome of
the consultation, include and publish details of the special policy in the licensing policy
statement.

Effect of special policies

13.32 Once adopted, special policies should be reviewed regularly to assess whether they are needed any longer or if those which are contained in the statement of licensing policy should be amended.

13.39 Every application should still be considered individually. Therefore, special policies must not restrict such consideration by imposing quotas – based on either the number of premises or the capacity of those premises. Quotas that indirectly have the effect of predetermining the outcome of any application should not be used because they have no regard to the individual characteristics of the premises concerned.

And critically….

13.36 A special policy should never be absolute. Statements of licensing policy should always allow for the circumstances of each application to be considered properly and for applications that are unlikely to add to the cumulative impact on the licensing objectives to be granted. After receiving relevant representations in relation to a new application for or a variation of a licence or certificate, the licensing authority must consider whether it would be justified in departing from its special policy in the light of the individual circumstances of the case. The impact can be expected to be different for premises with different styles and characteristics. For example, while a large nightclub or high capacity public house might add to problems of cumulative impact, a small restaurant or a theatre may not. If the licensing authority decides that an application should be refused, it will still need to show that the grant of the application would undermine the promotion of one of the licensing objectives and that appropriate conditions would be ineffective in preventing the problems involved.

I am not convinced we get national, or even local, consistency, when applications are being judged against the backdrop of a CIP.

We are delighted that Colin Manchester has committed to a new edition of Manchester on Alcohol and Entertainment Licensing Law, which will be the 4th edition, and will be published by Woods Whur Publishing in 2017.

Colin told us, “There continue to be changes to the primary and ancillary legislation, as well as development in the law through High Court and Court of Appeal decisions, all of which means that licensing law continues to be a fertile area for litigation. I am pleased that 2017 will see me release the 4th edition of my text. It is also great news that Woods Whur Publishing are reducing the cost of the current 3rd Edition to £40 per copy as a mid-publication discount.”

To place an order please email info@woodswhur.co.uk

This is what you need to do:

  1. Undertake and pass the full Scottish Certificate for Personal Licence Holders (SCPLH).
  2. Apply for a personal licence to the Licensing Board where you now live – this may not be the same as the one which previously issued your revoked personal licence if you have moved home to another area.
  3. Obtain two colour passport photos one of which should be endorsed by a person of standing in the community with the words I certify that this is a true likeness of (name of applicant)”, followed by the full name of the person endorsing the photograph.
  4. Enclose the SCPLH pass certificate or copy depending on what your local licensing board requires.
  5. Include your cheque in the sum of £50.00 for the licensing board fee.
  6. Note some licensing boards require a copy of your passport or driver’s licence photograph before you can have the application processed – check in advance.

Many Local Licensing Authorities have Cumulative Impact Zones (“CIZs”), known as “stress areas”, where there is a perceived clustering of licensed premises. If you are looking at taking a site in one of these, beware – you may experience considerable difficulty in getting the licence you want.

CIZs form part of an Authority’s Statement of Licensing Policy, if it has decided to adopt one or more of these, generally following a case in favour being presented by Police. Generally speaking, there will be a presumption, if objections are received, against granting new premises licences or material variations to premises licenses, such as increases in hours or capacity. You should check the precise terms of the CIZ, however – one that I came across recently, for instance, does not apply to hotel bars.

Whilst this presumption against grant is rebuttable, this can prove tricky to achieve, because you’ll need to establish that your application is truly exceptional, such that it deserves to be made the subject of a departure from policy.

In the early days of the Licensing Act, I remember cases where operators secured licences in stress areas by arguing that the premises would be well managed and run, or that they were reputable outfits operating other, similar sites without problems. However, Licensing Authorities have wised up to such attempts, and some have even amended their policies to include express wording that those matters will not justify an exemption being made.

In my experience, it is getting harder and harder to get a licence granted in a stress area. One recent case in Westminster involved a casino business that had been in existence for years, trading 24 hours a day. The vast majority of the premises was already covered by various licences for alcohol sales, entertainment and gambling, either round the clock or, in the case of alcohol sales, from 10am to 6am the following morning.

The application was for a very small coffee-shop area on the first floor – big enough only for four tables with four chairs each, which was already licensed for late night refreshment (the provision of hot food and drink between 11pm and 5am), to enable entertainment to be staged and alcohol sold there. The facility would not be advertised or promoted in any way and was not designed to attract new customers in. Rather, the aim was simply to provide an enhanced experience for existing customers seeking a break from gaming on the adjacent casino floor.

Government policy actively encourages such “break-out” areas and the application was for permission until 2am, much earlier than the rest of the building. Police and Environmental Health objected, even though they conceded that the premises had no history of any trouble – and Westminster’s own policy acknowledges that levels of alcohol consumption at casinos are very low.

This application, you might think, had “exceptional” written all over it. We did get the licence granted, but only following a tough hearing. Proof that getting anything in a CIZ is a tough ask.