A Judgment published on the 16^th May 2012 provided more guidance for Local Authorities on how to calculate licensing fees.

The case sets out important principles which will impact more widely when Licensing Authorities begin the task of calculating their own Alcohol Premises Licence fees in the near future when the national fee structure is replaced by a system of locally set fees.

The case, Timothy Martin Hemming (T/A Simply Pleasure Ltd) & 6 ORS v Westminster City Council (2012), concerned the annual licence fees for sex shops in Westminster.

The annual fees for such licences must be determined each year by a duly authorised Licensing Committee in accordance with the Local Government (Miscellaneous Provisions) Act 1982.  Although the 2005/2006 fee was determined to be £29,102 Westminster failed to repeat the process again until 2012 when a reduced fee of £18,737 was determined. 

In the intervening period demands for £29,102 were issued to the Claimants (the operators of the sex shops) each year.  The Council claimed in the case that the £29,102 was a 'rolling fee' for the intervening period and therefore they were not required to re-determine it each year. The Court rejected this argument.

The Claimants sought an Order from the Court requiring the Council to properly determine the fees for the intervening periods and sought direction from the Court as how properly this should be done.

The Claimants argued that the Council was not permitted to make a profit from their Sex Licensing fees and that any surplus from year to year should be credited to the Claimants.  Although the Council contested this principle the Judge sided with the Claimants and established the principle that surpluses as well as deficits are to be carried forward.

When deciding which costs could be included within the Licence fees the Claimants argued although it was previously lawful to include licence fees within the costs of enforcement, it became unlawful when the  'Provision of Services Regulations 2009' came into force on 28^th December 2009.

Thereafter, the only costs to be brought into account were those of the authorisation scheme itself. 

The Judge acknowledged that the Claimants were the beneficiaries of the Council's enforcement action against unlicensed operators:

"Effective enforcement means that they do not have to worry for long about unlicensed competitors," said Mr Justice Keith.

"Since they get much of the benefit of that enforcement, should they not have to pay for at least some of it?...I see the force of that, but it does not necessarily follow that those who benefit from a service provided by a local authority should have to pay for it."

"The fact that the council has preferred over the years to use the licence fee to charge the operators of sex establishments for enforcing the system does not affect the proper interpretation of the 2009 regulations."

It is reported that Westminster are to Appeal the decision, we shall keep you updated.

The Scottish Executive has just confirmed that it wants to set the minimum price for alcohol at 50p per unit.

The Alcohol (Minimum Pricing) (Scotland) Bill is anticipated to shortly conclude its passage through the parliamentary process and it is anticipated that the Bill looks to set a minimum price for a unit of alcohol as a condition of licence at this level.

The proposals have received greater cross party support than hitherto with the proposal of a 5 year sunset clause, enabling the whole matter to be revisited at the expiry of this period.  If introduced as proposed, the whole concept of minimum pricing could be the subject of legal challenge.

Proposals up for consideration include:

• National minimum safety standards for both taxis and private hire vehicles.
• Changes to standard-setting: additional local standards, above the national standards, would continue to apply to taxis (for example, topographical knowledge and vehicle requirements). However, for private hire vehicles, only the national standards would apply and there would be no scope for additional local standards.
• It would be easier for private hire services to operate on a national basis.
• London would be regulated under the same flexible framework as the rest of

England and Wales.

• Licensing authorities could no longer limit the number of taxi licences.
• Weddings and funeral cars would no longer be exempted through primary

legislation.

• Allowing leisure use of taxis and private hire vehicles.

The consultation also poses questions about:

• a new category of wheelchair accessible vehicles;
• improving the enforcement powers of licensing officers; and
• the possibility of a new "peak time" taxi licence that could only be used at particular times of day as decided by the licensing authority.

The consultation runs from 10 May until 10 August 2012.

The full consultation document can be found here

A summary can be found here

The Sunday Trading (London Olympic Games and Paralympic Games) Bill received Royal Assent earlier this week.

As a reminder, it suspends restrictions on Sunday trading hours for the period of the Olympic and Paralympic Games (those Sundays from 22^nd July to 9^th September) but only for shops with floor areas over 280m².

Those premises wishing to take advantage of the extra hours for alcohol sales, e.g. supermarkets and department stores, should remember that current restrictions on Premises Licences will be unaffected - it would also be prudent to check any restrictions on Planning Permissions as well.

Accordingly, operators of licensed premises may wish to consider a series of Temporary Event Notices (TENs) to extend trading hours on the Sundays in question. However, the maximum occupancy for a ‘premises’ under a TEN is 499.

Alternatively, premises will need to submit a relevant premises licence variation application.

The changes will apply to Scotland as well so a variation application to amend trading hours will be required north of the border if operators wish to take the full benefit of the extra hours. This will entail a Licensing Board hearing.

A Blackpool hotel appears to have been closed using powers under the Anti Social behaviour Act 2003 – possibly a first!

Reports indicate the premises have been closed by Magistrates for 4 weeks pending a full hearing.

The powers provided by the Act are more commonly used in connection with premises associated with the production or supply of Class A drugs and the necessary procedure invoked by the police. There is no suggestion of any such allegations here.

What is also included within the Act is provision for a Local Authority which has “reasonable grounds” for believing that a person has been engaged in anti social behaviour on the premises and the premises is associated with “significant and persistent disorder or persistent serious nuisance to members of the public” to issue a Closure Notice.  This must then be heard by the Magistrates Court within 48 hours to decide whether to issue a closure order and determine if the premises must shut for a period (upto a maximum 3 months although that in itself can be subsequently extended in specific circumstances)

Here it appears the proceedings are set for further consideration at a full hearing in four weeks time.

Clearly very stringent sanctions which would have catastrophic impact on a business….so beware and be warned!

The recently reported decision of Sheriff Principal Mhairi Steven raises the question of the purpose of suspending a licence.

Last December Midlothian Licensing Board suspended a licence held by Tesco for 2 days, after a Police Review initiated for a failed test purchase. The Board considered the suspension necessary or appropriate for Protection of Children from Harm, despite a second test having being passed. Furthermore, in their reasons, the Board had made reference to requiring “a fool proof” system to prevent underage alcohol sales. That suspension was quashed by the Sheriff Principal, who in her judgement stated: -

“It was difficult to see how a short period of suspension would prevent a reoccurrence”.

Further, she made reference to the fact that the legislation did not create a regime of strict liability.

This tends to indicate that the suspension in the Sheriffs mind had been used as a punishment rather than an opportunity to cure any defects within the due diligence system adopted by the supermarket.

It would be interesting to see how this point is further developed, especially as the Court of Session date for the LIDL Appeal has now been listed for the 6^th and 7^th November 2012.

For more details on the Lidl appeal please see our article “Scotland – Under Age Test Purchasing Due Diligence Not Enough”

The recently introduced requirement on Licensing Authorities (LA) in England and Wales to suspend premises licences for non-payment of the annual fee, which came into force on 25 April, is already causing confusion.

We have already seen cases of the LA seeking to wrongly threaten suspension for non payment of fees which fell due before 25 April. In simple terms, they cannot do this. The power only arises in respect of fees falling due on or after 25 April 2012.

If you are threatened with suspension, we recommend you seek urgent legal advice. 

For more detail on the power to suspend, please request a copy of our recently published ‘Changes to the Licensing Act 2003 - April 2012 - An Essential Guide’ available free of charge - please click this link for a copy.  Alternatively please see our article: "premises licence suspension for non payment of fees"

On Monday 23 April, Edinburgh Licensing Committee refused alcohol licences to three sites across the city including an application by Sainsbury’s for a new store on South Bridge,Edinburgh.

The decision is being reported in the Scottish press as the first example of the direct influence by a local Health Authority upon a Licensing Board’s decision following the inclusion of Health Authorities as Consultees in October 2011.

NHS Lothian made representations opposing the application stating that the granting of a further licence in the Old Town, thus increasing the provision, would be contrary to the licensing objectives.  Lothian cited statistical information that that the area already had one of the highest number of alcohol related injuries in the city.

Police evidence was also called evidencing a number of crimes which had been committed in the vicinity over the previous 12 months.

The engagement of the NHS Lothian in the process was broadly welcomed by the Scottish Government, Licensing Board and various Alcohol Health groups.

As this was an application for a new licence by an operator apparently new to the area, local issues clearly could not be  attributable to them, and the abilities of a major national supermarket chain to operate stores, while promoting the licensing objectives, was not enough to convince the Board on this occasion.

We are pleased to announce that we have submitted with the relevant authorities what will undoubtedly be some of the first late Temporary Event Notices (TENs) in England andWales on behalf of several operators –if indeed not the very first.

Late Temporary Event Notices are now permitted by amendments to the Licensing Act 2003 (coming into force today) made pursuant to the Police Reform & Social Responsibility Act 2011.

A TEN will now be classed as ‘late’ if it is submitted between five and nine working days before the event day.

This means that it is still a valid TEN (unlike the pre-25^th April regime). However, should the Police or EHO object to the Notice, then the Licensing Authority must issue a counter-notice which effectively invalidates the TEN.

Should you have any queries about the changes to the TENs regime, or require assistance in the preparation and submission of TENs, please contact us.

The Home Office has just laid the revised Guidance before Parliament, as had been promised, a formal step required to bring it into effect.

It can be found here - "Amended Guidance Issued Under Section 182 of the Licensing Act 2003".

Further to our previous item 'Glasgow Board Consult on Sunday Hours' - it has been confirmed that the Glasgow Licensing Board has agreed to amend its Board policy so as to allow premises to open from 11.00 am on Sundays (bringing forward the opening hour from 12.30pm) and thereby bring it more into line with much of Scotland.

A word of caution however; this is not an automatic entitlement and all premises wishing to take advantage of this relaxation will need to individually apply and each application ‘will be considered on its own merits’.

It would appear that this now leaves Edinburgh and parts of Lanarkshire as the remaining areas in Scotland where Board policy has Sunday opening remaining at 12.30pm.

Commenting on the decision, Siggy Wilberg said: ‘I am really pleased with this result and the commitment shown by John Gaunt & Partners in confronting the objections we were facing, particularly from Environmental Heath.  We lodged the application ourselves and only brought them in when it was clear that we were facing a contested hearing.  I cannot fault the quality of their advice and their thorough preparation of the case on what was short notice. In all respects, I am delighted”

The Home Office has just released some preliminary Guidance notes which can be found following the links below and upon we will be commenting separately. It may be that others are to follow, as has previously been suggested.

Disappointingly perhaps, both notes contain the following statement:

‘The content of this document broadly reflects, but is not the statutory guidance (or a revised version of it) issued by the Secretary of State under section 182 of the Licensing Act 2003; as such, there should be no reliance upon it for any purpose.’  (Our emphasis)

It is of course the case that the relevant provisions within the Act come into force and effect tomorrow, 25 April!

Links

Licensing authorities as responsible authorities - preliminary guidance

Suspension for non-payment of fees - preliminary guidance

You may be alert to a recently launched, but now happily withdrawn, consultation (or pre-consultation, as they may now have it) by the above council on the probable adoption of a late night levy.

To us this seemed most premature, something we raised with them, and following alerting others to the position confirmation of the withdrawal was received by us this morning.

Our original email covered a number of points including:

1. Our preliminary view was that the consultation was premature.
2. Highlighting that whereas the PR&SR Act has received Royal Assent, the relevant provisions in respect of licensing and the LNL have yet to be brought into force.
3. In respect of the LNL, stating that it is widely accepted that secondary legislation will be required and upon the detail for which (including possible exemptions and discounts) the Government is currently consulting.  Therefore emphasising that the LA are not in a position to take this further at this stage.

Hopefully no other authority will issue a pre consultation before we receive the Government guidance….whenever that will be.

25 April 2012 is looming!

The ‘Licensing Act 2003 (Premises licences and club premises certificates) (Amendment) Regulations 2012’ have just been laid before Parliament for approval and the next step on the way to the introduction of various measures contained within the above Act and which are due to come into effect on 25 April. We have previously anticipated these changes before – please see our article of 3rd March 2012 'Police Reform & Social Responsibility Act'.

The most notable amendment is that the category of “interested party” is removed from the Act to enable any person to participate in the various processes set out in that Act, regardless of their physical proximity to the premises concerned.

Further, there is a requirement on a Licensing Authority to advertise an application for the grant or variation of a licence or certificate, or the application for a provisional statement. The Licensing Authority must advertise the application for the period of 28 days starting on the day after the day on which it receives the application, and it must publish a notice on its website containing other information which in all cases, must include the applicant’s name, certain addresses, the date by which persons can make representations and the manner in which such representations should be made hence bringing the application to the attention of persons likely to be affected by it. This will no doubt prevent a reoccurrence of the point raised in the Albert Hall case (for more details see 'The Albert Hall Case - Court of Appeal decision') in relation to notification being provided to residents by a Licensing Authority.

The Regulations can be found here: http://www.legislation.gov.uk/uksi/2012/955/made

As for the promised updated Guidance on all these changes………………………………

The Government have now released a tranche of new application forms to anticipate the changes or some of them being brought in by the above Act on 25 April 2012 – see many updates passim!

These include a number of regulatory based forms – such as an amended application for premises licence review – but also a new proposed form of application for a Temporary Event Notice to anticipate the opportunity to make a ‘late TEN’.

Unfortunately it would appear that this form is not entirely correct!  The notes to the form will require correction in due course, as there are incorrect references to the entitlement of a personal licence holder to apply for such late TENs; the entitlement within the Act is 10; there are references to only 5!  See notes 7 and 13 to the form.

The form can be found here and should be used from 25 April; this and other forms shouldbe available on the Home Office website on (or hopefully before) 25 April 2012.

If so, this is in accordance with recent speculation but disappointingly means that it will not come into force in time for the Olympics or the Queen’s Diamond Jubilee.

A summary of the effects of the Act were reported in our previous article, which can be found in our article 'Live Music Bill - Almost There!'.

A copy of the letter written by Minister John Penrose indicating the above timescale can be found here: http://www.culture.gov.uk/what_we_do/regulated_entertainment/8955.aspx.

We are pleased to announce that Christopher Grunert and Jonathan Hyldon have been promoted to Associate Partners of the firm. Both of them specialise in all areas the firm handles – Licensing (in both England & Wales and Scotland), Gaming and relevant regulatory work.

Christopher has been with the firm for 5 years and has a total of 12 years’ experience dealing with all types of licensing applications and regulatory work. A recent work highlight was representing defendants in connection with one of the first known criminal prosecutions attempted by a Local Authority in connection with “irresponsible drinks promotion” legislation – the prosecution’s case collapsed following initial submission leading to the acquittal of both clients and an order for payment of their costs.

Jonathan arrived 18 months ago and has over 10 years’ experience in licensing and gaming.  Jonathan has successfully handled a number of Health & Safety prosecutions along with handing a wide range of Gambling Act applications for well-known national operators.

Founding Partner, John Gaunt commented on the promotions - “I am delighted to announce these promotions; both Christopher and Jonathan are excellent solicitors and are an important part of our licensing team. This is representative of the expansion and growth of our company and we are looking forward to the future. We continue to make significant inroads into Scottish Licensing along with our expanded client base in England & Wales.” 

In a further step to make smoking appear less attractive, the Government has today launched a consultation over whether tobacco products should have standardised packaging. This could lead to the use of a uniform colour, standard font and text for any writing and/or packaging devoid of any branding whatsoever.

This consultation follows hot on the heels of the recent change in the law on 6^th April 2012 requiring all large shops in England to hide tobacco products from public view except in very limited circumstances – see our previous article 'Tobacco display ban'.

If you wish to comment on the current consultation, the link to the relevant section of the Department of Health’s website can be foundhere: http://www.dh.gov.uk/health/2012/04/tobacco-packaging-consultation/

The closing date for the consultation is 10^th July 2012.