www.emlawshare.co.uk licencing update belinda moore weightmans llp

www.emlawshare.co.uk

Licencing Update

Belinda Moore

Weightmans LLP


Contents

• Premises Licence• Variations of premises licences• Review of premises licences• Practical issues to consider• Review of licences• Case studies• Hearing• Appeals• Summary review• Alcohol sales• ASBOs/antisocial behaviour injunctions


Premises licence


Premises licence

• The Licensing Act 2003 (LA 2003) defines the types of activities which require a licence under the Act (s1(1)). It consolidates and defines four specific types of licensable activity

a) The sale by retail of alcoholb) The supply of alcohol by or on behalf of a club to, or to the order

of, a member of the clubc) The provision of regulated entertainmentd) The provision of late night refreshment

Authorisations to carry out licensable activities are granted by licensing authorities

Regulated entertainment is caught by the Act


Premises licence

• The aim of the Licensing Act 2003 is to promote the four licensing objectives which are:

1. The prevention of crime and disorder

2. To promote public safety

3. The prevention of public nuisance

4. The protection of children from harm


Premises licence

• Regulated entertainment is entertainment provided with a view to profit, inclusive of charity fund raising.

• The question is whether there was an intention to make a profit.

• Examples include plays, showing of films, all indoor sporting events, music events unless incidental to some other event

• Live Music Act 2012

• Exemptions may include religious places of worship, garden fetes, vehicles in motion


Premises licence

When thinking about restrictions concerning certain premises such as garages and service stations, consider:

R v Liverpool Crown Court Ex p. Goodwin (1998)

‘The question must be what was the intensity of use by customers at the premises?’


Premises licence

• Q. Who issues the licence? The authority with the greater part of the premises, in which area the premises is situated.

• Q. Who can apply for a licence?Anyone who carries on, or proposes to carry on, a business involving licensable activities on the premises.

• Q. How is an application made? In the appropriate form prescribed by the Secretary of State to the relevant licensing authority and accompanied by: an operating schedule, a plan of the premises, consent of an person nominated as ‘designated premises supervisors,’ theappropriate fee


Premises licence

• The applicant must publish a notice on at least one occasion not more than 10 working days after submitting the application to the authority, either in a local newspaper, newsletter, or similar document.

• Unless any relevant representation and made to the authority, the application must be granted


Premises licence

• What are ‘relevant representations?’

Made by a responsible authority relating to the effect of the

grant of the licensing objectives. It will be the decision of

the licensing authority as to whether the applications are

irrelevant or not.

• An irrelevant representation would not be directly related to the application such as:

A vexatious application based on business rivalry A ‘frivolous’ application considered to be lacking in seriousness


Premises licence

• Applications authorising the sale of alcohol must state: ‘details of a designated premises supervisor’ who is holder of a

valid personal licence Every sale of alcohol must be made or authorised by a personal

license holder

• Schedule 4 of the Policing and Crime Act 2009 introduced other mandatory conditions applicable to all premises licences authorising the sale or supply of alcohol:


Premises licence

Reasonable steps should be taken to ensure staff on the licensed premises:

Do not promote games or promotions encouraging excessive drinking

Ensure tap water is available Put in place an age verification policy Ensure the availability of smaller measures of alcohol


Premises licence

• The applicant must be informed of a successful/refused application, and on approval, should be issued with the licence and a summary of it

• Q. How long does the licence last?– Unless transferred, surrendered or revoked, it will last as long as the

licensee continues to operate the business.

– If the license was for a specified time, it will expire on completion of that time.

• Licensing authorities cannot time limit a premises licence. The applicant must ask for this in their application.


Variation of licence


Variation of premises licence

• The holder of a premises licence can apply to vary the licence to include a new activity or extend the licensing hours, or vary substantially the premises to which the licence relates.

• The application to vary should be made in the same way as a new application, and if no relevant representations are made the variation will be granted.



• If relevant representations are made, the licensing authority must arrange a Hearing, unless representations are deemed ‘frivolous’ ‘vexatious’, or all parties agree to the Hearing being dispensed.

• The licensing authority should consider, if appropriate

for the promotion of the licensing objective, the modifications or rejection of the conditions of the licence.


Variation to premises licence

• Variation of licence to supply of alcohol from community premises:

Where a management committee holds a premises licence in respect of community premises, it can vary the licence, and replace two mandatory conditions with an alternative condition.

The condition to be replaced are those requiring the premises to have a designated premises supervisor, and for the sale of alcohol to be made or authorised by the management committee

The Chief Officer is the only person who can object to such an application and only on the basis that he is satisfied that granting the application would undermine the crime prevention objective.


Variation to premises licence

• Provisional statement

Intended for use in relation to premises being used, extended or altered for licensable activities. This allows a person interested in the premises to obtain an indication of the likely effect of the intended licensable activity on the licensing objectives.

This application must be advertised in the same way as a premises license.



• Transfer of licences Can be made with immediate effect, with the consent of the

holder of the premises licence

• s.44 –The licensing authority must reject application unless:i) The transfer application has been given immediate effectii) The existing licence holder has agreed to the transferiii) The applicant has been exempted from the need

to obtain that consent


Minor variations

• There is no real definition of ‘minor variation’ although the Act prohibits certain applications from being subject to minor variations such as:

Transfer of a licence or certificate Specify a new Premises Supervisor Add the sale, by retail or supply, of alcohol at any time between

11pm and 7am Authorise an increase in the amount of time on any day during

which alcohol may be sold, by retail or supply.


Minor variations

• The application must be made on the prescribed form, submitted to the licensing Authority, advertised on or near the premises concerned for 10 working days. A decision should be reached within 15 days of receipt of the application. After this time the application will be deemed to be rejected, although an extension of this time can be agreed with the applicant.

• Power to make the decision lies with the Licensing Officer, who should consider if the variation adversely affects any of the Licensing Objectives, in which case it will be refused, and the fee returned.


Minor variations

• Change of supervisor:

The holder of a premises licence can apply to substitute a different person as the designated premises supervisor

The application should be accompanied by signed consent of the proposed premises supervisor, and the police notified.

Any designated premises supervisor can give notice to the Local Authority to stop acting


Practical issues


Practical issues to consider

• Death of the premise licence holder

A premise licence will lapse if the holder dies or becomes mentally incapable or insolvent. Or, in the case of a company, if it has dissolved.

An interim authority can be obtained by the licence holder representative and should be passed to the chief officer of police within 7 days. This will reinstate the lapsed premises licence.


Review of licence


Review of licence

• The Act provides for the licence of premises causing problems to be reviewed and, if necessary revoked, suspended or amended.

• The basic procedure:

An applicant seeking review must give written notice of the same application to the licensing authority, and give a copy to the premises licence holder, and to each responsible authority

The authority must reject an application unless it is relevant to at least one of the licensing objectives, or is, frivolous, vexatious, or repetitious.


Review of licence

An applicant seeking a review must give written notice of the application to the licensing authority, who should advertise the application and invite representations from responsible authorities. This must be advertised in the appropriate form, at least A4 in size, for not less than 28 days post application.

The licensing authority must arrange a Hearing at which all parties may put their case.


Review of licence

• Following this Hearing the authority may take the following steps:

Modify the condition of the licence Exclude a licensable activity from the scope of the licence Remove the designated premises supervisor, where they

authorise the sale of alcohol Suspend the licence for a period not exceeding three months Revoke the licence


Review of licence

• Any party to the Hearing may appeal against the decision within 21 days of being notified of it

• The review decision does not have effect until the time for bringing an appeal has expired

• When considering a case regarding conditions imposed on a premises licence at the second stage review for underage sales of alcohol, the High Court made the following observation:


Review of licence

R v Hinkley Magistrates Court & Blaby DC (2011) L.L.R. 669

‘on a second review, rather than start with a consideration of the evidence and what was proportionate for the promotion of the licensing objectives, there would be a presumption of revocation. It would be of no consequence that the revocation was not imposed, but that revocation was a starting point.’


Case examples


Some current case examples:

Case study 1• County of Suffolk loses licence after knife incident Feb 2012

A pub in the centre of Ipswich lost its licence after a number of incidents including some being threatened with a carving knife. Police revoked the

licence in order to maintain public

safety. As per the procedure

discussed, Licence holder Scottish

& Newcastle said an appeal

could be lodged.



Case study 1 continued

The police became involved in February, when a noise abatement officer from Ipswich Borough Council was confronted by an aggressive crowd at a private party. He said police began to work with the pub but further

incidents led them to believe that it was not a "safe place for the public". After hearing the submissions, Ipswich Borough Council's licensing sub-committee determined the licence should be revoked.

A spokesman for Scottish & Newcastle said, "We understand we

have 21 days within which an appeal could be lodged. We are

currently in the process of liaising with our legal representatives."



Case study 1 continued

The Appeal -August 2012

Scottish & Newcastle Pub Company, which owns The County of Suffolk in St Helen’s Street, made an application before magistrates in Ipswich to lift a licence revocation order made in May.

During the unopposed application, magistrates agreed to replace the order with another suspending the licence temporarily;

Magistrates heard the underlying objective of the licence revocation in May was to get the tenant evicted and replace them with a new one, so the pub could be run properly.



Case study 1 continued. The Appeal -August 2012

Police, the borough council and the brewery were all said to be in agreement the licence should now be suspended rather than be revoked.

After May’s revocation hearing Pc Craig Lannigan of Ipswich’s licensingunit, said:

“This result will resonate with the licensed trade in Ipswich and will send a strong message that licensees have strict responsibilities

under the Licensing Act and should continually monitor their performance to ensure the public are kept safe while enjoying a night out”

The Pub has since reopened under new management.



Case study 2 – Closure of Long bar, Leicester

• A city centre bar that police said was like a "boxing ring" because of the number of violent incidents inside and outside the premises has had its licence revoked.

• A member of the force's licensing team told the Town Hall hearing how customers had been involved in 19 violent incidents in five months, between July and December.

"There is responsibility for the venue management to prevent these issues, which they have failed to do. They have worked with us but what they have done does not

work.”



Case study 2 – continued

Licensing committee chairman Councillor Adam Clarke said: "We have a lack of confidence that the Long Bar owners are able to uphold any of the licensing objectives. Therefore, we have no choice other than to revoke the licence."

• The owners have 21 days to lodge an appeal once they have received formal notification of the decision.

• The bar can remain open for that time or until the result of an appeal, if one is lodged.

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Case Study 2- timetable of events:

• July 25, 3.05am: Fight outside. Victim with head injury.

• August 17, 23.55pm: Group of males fighting inside and outside. One arrested for carrying offensive weapon.

• September 1, 5.27am: Four 16-year-olds who had been drinking inside and fighting

• September 7, 2.30am: Men fighting. One man had ear bitten.

September 15, 2.50am: Male customer found in possession of cocaine.

• October 5, 5.34am: Male unconscious after fight.

• October 13, 4.54am: Man stabbed four times inside bar.


Case Study 2- timetable of events continued :

• October 24, 3.29am: Man with broken jaw after fight inside and outside.

• November 30, 4.54am: Large-scale disorder on street. Twenty officers involved, four injured.

• December 7, 6.02am: Door staff member arrested for possible assault. Alleged victim arrested after assaulting police.


Hearing


Hearing

• Whenever relevant representations or objections are made to an application, or if an application has been made for a review of a premises licence, a Hearing has to be held, unless all parties consider it unnecessary.

• Before a hearing

A Hearing will normally need to be commenced within 20 working days of the end of the period for making Representations. However this can be extended where it considers public interest, although notice of this should be given to all parties.


Hearing

• Mediation It may be possible to seek to mediate between an applicant for a

premises licence and other parties to avoid the Hearing. This can be done by correspondence, or by convening a meeting between the parties with an officer who will facilitate, but not pass decisions.

The licensing authority will arrange a date, time and location for the hearing, whilst reviewing the application to see of there will be points on which clarification will be required at the Hearing


Hearing

• This hearing can be dispensed with at the agreement of all parties, if confirmed in writing.

• Notice of the Hearing should be given no later than 10 working days before the Hearing, and should contain:

The rights of the parties at the Hearing and the consequences if a party does not attend or is not represented at the Hearing

The procedure to be followed at the Hearing Any particular points on which the authority considers it will want

clarification at the Hearing


Hearing

• On receipt of the notice the parties should, no later than 5 working days, give a notice to the Authority stating:

Whether they intend to attend or be represented Whether he considers a hearing to be unnecessary

The Authority may adjourn a Hearing to a specified date should it be necessary in expediting an agreement between parties


Hearings

Hammersmith & Fulham LBC v Food Express Ltd (2010) L.L.R 292

Applicant arrived late to a Hearing as the decision to reject a 24hr alcohol licence was announced. They appeal the decision on the basis there had not been a fair Hearing as the parties had only waited 10 minutes before commencing. This was not upheld on the basis that the time to wait is for the sub committee to decide.


Hearing

• Shortly before the Hearing, an Officer should prepare a report determining the application, so as to familiarise themselves with the case. This should include:

the nature of the application any relevant background application

Details of the promotion of the four licensing objective

1. The prevention of crime and disorder

2. Public safety

3. The prevention of public nuisance

4. The protection of children from harm


Hearing

Q. What happens at a Hearing?

• The procedure is generally at the discretion of the licensing authority but must conform to the regulations.

• At commencement the authority will explain the procedure to the parties, and consider any request

Any hearing must conform to European human rights legislation. Any licensing authority can still be subject to Judicial Review, even if they follow the Regulations, if their conduct does not promote natural justice and fairness.


Hearing

• Reg 23 states the Hearing will be in a discussion format held by the authority, without cross examination unless the authority considers it necessary.

• Any disruptive persons will be requested to leave the hearing and may be:

1. Refuse to permit that person to return

2. Permit him to return only on conditions

3. They may continue to make written submissions


Appeals


Appeals

• An applicant who has a licence/attached conditions refused may appeal the decision.

• An appeal must be commenced within 21 days of notification of the licensing authority’s decision. The Magistrates Court can make an Order for costs of the appeal.

R v City of Magistrates Court (2011) L.L.R. 105Appeals are a rehearing, therefore new evidence can be introduced


Appeals

• On hearing the appeal the magistrates can:

1. Dismiss the appeal

2. Substitute for the decision appealed against, any other decision which could have been made by the licensing authority

3. Remit the case to the licensing authority to dispose of in accordance with the direction of the court


Summary review


Summary review - challenges

• S52(a1) - power for the police to ask for summary review of a premises licence which authorises the sale of alcohol

• Procedure Senior police officer must complete a certificate showing that the

premises are associated with serious crime, or serious disorder or both.

They may then apply to the licensing authority for a review of the premises licence. The authority must advertise the application for a summary review for a period of seven working days after the application in received.



• The licensing committee will consider the following interim steps, which have immediate effect:

Modification of the conditions of the premises licence Exclusion of the sale of alcohol by retail Removal of the designated premises supervision. Suspension of the licence

• The final Hearing of the summary review application must be made within 28 days of the application being received by the authority. The Licensing Act 2003 (Hearings) Regulations 2005 apply. Therefore 5 days notice of the final Hearing must be given



• Steps at the final Hearing are:

The modification of the conditions on the licence The exclusion of licensable activities The removal of the designated premises supervisor The suspension of a licence for a period not

exceeding 3 months The revocation of the licence


Sale of cheap, high strength alcohol



Following government initiatives, Council’s are taking a far stricter view on the sale of high strength alcohol and associated anti social behaviour, in order to uphold the

licensing objectives



Case study 1

Shop ban on high-strength booze cuts street drinking

crime by 50%

• A campaign to ban the sale of super strength lager and cider launched in Ipswich, Suffolk in 2013, has led to a 50 per cent fall in reports of anti-social behaviour, and has proved so successful it is expected to form a blueprint for cities fighting to crack down on street drinking and alcohol related crime across the country.



Two thirds of the town’s 122 licensed retailers, including the Co-op, Tesco, Debenhams, Marks & Spencer, BHS, Waitrose, Sainsbury’s and Aldi, have so far backed the scheme by voluntarily taking cheap, highly-potent lagers and ciders off the shelves.

As a result, the number of police calls made by members of the public to report concern about street drinking and related anti-social behaviour dropped to 94 between September and March 2013, from 191 during the same period the previous year.



Case study 2

A shop has lost its alcohol licence for the Christmas period after allegedly exacerbating underage alcohol consumption, drug misuse and anti-social behaviour. At the shop, miniature bottles and high-strength alcohol were on sale at discounted prices, easily accessible to young people.

The court decided to reduce this to three months after evidence showed management trying to establish clear and consistent standards of acceptable behaviour, reflecting the responsibility involved in the sale of alcohol.

Shop owners were ordered to pay £1,000 costs and their licence to sell alcohol will be reinstated on January 22, 2014.


ANTISOCIAL BEHAVIOUR


Anti-social Behaviour Crime and Policing Act 2014

• Act contains provision for: Temporary closure of premises with a licence or temporary

events notice, by the Local Authority, should it be reasonably believed that a public nuisance or disorder is being caused by the premises.

Closure notice issued for up to 48 hours without going to court Thereafter seek order for closure for up to 6 months from the

magistrates court


Anti Social Behaviour

Case Study -Noisy Marsden pub to be closed for first time using ASB law in existence at the time

• In April 2009, Kirklees Council used the Anti-Social Behaviour Act 2003 for the first time to call time on a noisy pub following repeated complaints from neighbours about noise and anti-social behaviour. The act was usually used to close nuisance residential properties.

• Daniel Thwaites Brewery, which owns the premises, served a notice on the landlady seeking possession of the premises following talks with Kirklees Environmental Services.

• The pub, which was licensed until 12am on weekdays and 2.30am on weekends, was ordered to close by a district judge following complaints of loud music, shouting and fighting until the small hours.


Case study continued

• The District Judge considered many factors:“I notice a complaint at 9.30pm. That was

unreasonable but some were at 2.30am and that clearly was in breach of the licence.”

“I am satisfied that the use of the premises has been associated with persistent and serious nuisance to members of the public.”

• Overall the reliance on the ASB Act expedited the closure of the pub, and so upheld the objectives of the licensing act.


Community Protection Notice

• To stop a person, business or organisation committing anti-social behaviour which spoils the community's quality of life

• Behaviours must be detrimental, persistent and continuing and unreasonable

• Warning letter• Issue of notice• Breach is criminal offence• Can be used to deal with noise nuisance


Any questions?

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