Edinburgh City Licensing Board is considering limiting the adoption of an over-provision policy thereby seeking to limit the number of off-licences in the capital, in a bid to reduce the availability of alcohol.

It is said that there are currently 412 off licensed premises in the City and it is estimated that 79 per cent of the population above the age of 18 live within 400 metres of a shop where they can purchase alcohol.

Licensing officials are of the opinion that a limit on new licences could be imposed across the city, rather than in specific locations, as “a substantial number of individuals are travelling within the city to purchase alcohol”.

A copy of the consultation, which was launched last month, is avaliable here. The consultation seeks responses by 17 February 2012.

If you would like assistance in relation to obtaining an off licence premises in Scotland please contact one of our solicitors. 

Although the facts are different from the case of BRADFORD CITY METROPOLITAN DISTRICT COUNCIL v ERIC WILSON BOOTH (2000) the case serves primarily, from a costs point of view, to reaffirm the now established position as to costs as set out in the Bradford case.

The powers of the Magistrates' Court to award costs are governed by the Licensing Act 2003 (s.181(2)) which empowers the Magistrates to make such order as it sees fit; however the power is not unfettered and must be exercised in a principled manner.

What constitutes a principled manner was described quintessentially by Lord Bingham in the Bradford Case and was reaffirmed in the recent decision concerning Stratford Magistrates.

“Where a complainant has successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular complainant in the particular circumstances if an order for costs is not made in his favour; and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged.”

Unlike the normal rule in civil litigation, costs do not necessarily follow the cause, i.e. the loser does not always pay the winner’s costs.  In Licensing Appeals the winners and losers are not always apparent!

The prejudice against the lay Appellant must be weighed against the behaviour of the Licensing Authority and the need to “encourage decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged”. 

There is a growing number of cases however where the Administrative Courts are highlighting “unreasonable” behaviour of the Licensing Committees in how they reach and explain their decisions.  It is in this area that the most interesting developments are arising.

If you would like to discuss any of the issues surrounding this article please call to speak to one of our solicitors.

“A recent Review in Lincolnshire has given an interesting result and muddied the waters in relation to CCTV production and conditions that are increasingly lengthy and specific in their provision.

Premises are regularly and routinely faced with a request from the Police for very detailed CCTV conditions requiring "immediate" production of CCTV images and we have clients that have faced Closure Notices for failure to produce the CCTV upon request. This marries together two interesting points, the first being how specific does a CCTV condition need to be and how enforceable is it in the light of Data Protection and secondly if you do not comply with a CCTV condition, will you always face a Closure Notice?

The CCTV condition in question in this case stated that "Provision of CCTV and recordings to be made available to Police upon request". Michael Kheng of Kurnia  successfully argued that whatever the condition said, the premises were still subject to the Data Protection Legislation and the Police would need to obtain a Court Order. That was upheld by the Licensing Sub Committee upon the review and the condition amended to read as follows:-

"Tamper resistant CCTV system shall be installed, maintained in working order and operated at the premises. Subject to a suitable request and agreement of the Data Controller, images shall be released to Lincolnshire Police so long as the Data Controller is happy to do so in accordance with the Data Protection Act 1998"

A clear indication that whatever the condition may say, Data Protection Legislation is not overruled. Clearly, consideration needs to be given to the facts in each instance, but it would seem to us that if there were appropriate grounds for failing to produce CCTV (as in this instance) the Police cannot rely on the condition and could not and should not issue a Closure Notice based on non compliance with the CCTV condition. This is relevant as our experience as clients are increasingly facing threats of Closure Notices for minor or technical "breaches" of conditions.

The Live Music Bill has completed its consideration of amendments stage and will shortly obtain Royal Assent, at which point it will become the Live Music Act 2012.

However, the soon to be Act will not come into force until secondary legislation is enacted. There is no official timetable for this as yet although it is hoped that this will be sometime before the Olympics and the Queen’s Diamond Jubilee.

As a reminder, the Bill, now in its final agreed form, seeks to relieve some regulatory burdens under the Licensing Act 2003 as follows.

Live music in ‘licensed’ venues

Live music will cease to be regulated entertainment in venues licensed for the sale of alcohol for consumption on the premises in the following situations: 

• when it is unamplified and takes place between 8am and 11pm; and
• when it is amplified and takes place in the presence of an audience of 200 persons or less and is provided between 8am and 11pm.

The premises must be open for the sale of alcohol during the time that the live music is provided for the exemption/s to take effect.

Further, any condition attached to the Premises Licence relating to live music ceases to have effect in respect of the live music unless the Licensing Authority states otherwise on the licence pursuant to a Review hearing.

Live music in ‘non-licensed’ venues

Of note for those premises which are not licensed for alcohol sales, the Bill states that live music is not regulated entertainment when it is unamplified and takes place between 8am and 11pm.

Amplified live music in non-licensed venues will still require formal authorisation from the Licensing Authority, such as a Premises Licence or Temporary Event Notice.

Provision of facilities for making music and dancing

The Bill’s final notable feature is to remove the provision of facilities for making music and dancing as forms of regulated entertainment. This element did not grab the headlines as much as the changes to live music but is certainly welcome to the licensed industry nonetheless.

Should you have any queries about the Bill’s effects, please contact one of our solicitors.

Large shop means a shop with a relevant floor area exceeding 280m2. The ban will apply to all remaining tobacco retailers from 6^th April 2015 (including bulk and specialist tobacconists as well as pubs and clubs etc).

Tobacco products will only be able to be 'displayed' in very limited circumstances such as when staff are serving customers, re-stocking, undertaking training etc. Even under such circumstances the tobacco storage unit on temporary open display should not exceed 1.5m2.

Further, from the relevant dates, all price lists and labels for tobacco products must be in specific formats to ensure that they cannot be exploited as forms of tobacco promotion.

Contravention of the new laws could lead to a fine and/or imprisonment, so premises should ensure that they will be in compliance at the relevant date, which will likely mean taking action to adjust tobacco storage units and cabinets.

Operators should be mindful of these new requirements, particularly as the sale of tobacco to persons aged under 18 will effectively result in two offences being committed - one for the 'display' of tobacco and one for the sale.

In Scotland and Wales, the bans for large shops are being deferred principally due to legal challenges. New dates have not yet been announced.

If you have any queries about the changes to the law or require assistance in relation to permitted displays and price lists, please contact us.

The Portman Group Complaints Panel have apparently concluded that the marketing of both products breaches their code of practice in different ways - More detail can be found by viewing the Portman Group Bulletin. They are asking retailers not to place any more orders for either product in their current format after 31st March, 2012.

The Portman Group's Code of Practice on the Naming, Packaging and Promotion ofAlcoholic Drinks was originally introduced in 1996 and the current Code of Practice came into full effect on 1st January, 2008. It seeks to ensure that drinks are marketed in a socially responsible way and to an adult audience only. The Code of Practice can be found 'Code of Practice'.

The Portman Group has a live consultation on a revised new Code, which consultation imminently expires on 31 January 2012. Further detail available on their website - http://www.portmangroup.org.uk.

The Offensive Behaviour at Football and Threatening Communications (Scotland) Act received its Royal Assent on Friday with the Act looking to come into force on the 1^st March 2012.

The Act provides for two new offences: Offensive Behaviour related to football and Threatening Communications. 

The first offence targets any offensive and threatening behaviour expressed at and around football matches including sectarian and other offensive chanting which is likely to cause public disorder.  Of particular note to the licensed trade is that this also covers anywhere a match is being broadcast in a public place.

Penalties will range from fixed penalty notices (£40) and Community Payback Orders to a maximum of 5 years in prison and an unlimited fine.

The second offence relates to the communication of threats of serious harm or which are intended to stir up religious hatred on the internet or other communications.

For additional information on this matter please contact us.

A number of changes to public entertainment licensing are to come into force on the 1^st April 2012 when the latest changes brought about by the Criminal Justice and Licensing (Scotland) Act 2010 (The ‘Act’) take effect.

Currently a licence is required when anyone intends to have entertainment, such as a dance, concert, variety show or other entertainment to which members of the public are to be admitted and where some payment for admission is to be paid.

The Act repeals the words “on payment of money or money’s worth” from section 41(2) of the Civic Government (Scotland) Act 1982.  This allows licensing authorities to control large-scale public entertainments that are free to enter. Further, authorities will have the discretion to license events such as gala days or school fetes.

The Act will also update some references to gambling legislation for premises that are exempt from the public entertainment licensing provisions as well as empowering Scottish Ministers to add other premises to the list of exemptions. 

Therefore under the amended legislation, free events, which were formerly exempt, will require a public entertainment licence and the associated cost of granting, renewing or issuing a temporary licence.

If you require advice or assistance in submitting a Public Entertainment Licence please do not hesitate to contact one of our solicitors.

The Live Music Bill has today completed its report stage and third reading in the House of Commons.

The next step is for the consideration of any amendments before obtaining Royal Assent, dates for which have not been released yet.

We will keep you updated and confirm as and when the provisions will come into effect.

The Bill proposes that premises authorised to supply alcohol for consumption on the premises by means of a premises licence or club premises certificate which:

• Are open for the purpose of supplying alcohol for consumption on the premises
• Present music to an audience of less than 200
• Between the hours of 8am and 11pm (or such additional hours as permitted by ordered by the Secretary of State for special occasions)...

where any condition of the licence which relates to live music shall have no effect.

The new Bill does provide however for this new section (s.177A) can be overruled by order of the Licensing Authority in respect of individual premises following, for example, a review hearing.

Along with the sporting and cultural impact of the London Olympics, businesses will also be affected - not only with a much anticipated (or hoped for) boost to the businesses' takings but also in a number of ways how the business can trade and advertise (even possibly on their own land) if proximate to an Olympic venue.

In order to avoid 'ambush marketing' and also to protect the interests of the games sponsors, regulations have been implemented which limit the activities and advertising which may be undertaken within "Olympic Zones" throughout the period of the games.

If your premises are within an "Olympic Zone" the use of external areas will be prohibited for up to the duration of the games unless specific permission from the Olympic Delivery Authority (ODA) is obtained. 

This will be the case even if you already have a street trading or pavement café licence from the council.

An exemption from obtaining the relevant ODA permission exists for private land (beer gardens and the like for public houses) but this is conditional on the trading activity taking place on site forming part of the usual business of the owner of the premises - sale of alcohol; supply of food etc. (not, for example, the sale of sports equipment!).

Time is running out to submit necessary applications at affected locations; the deadline for such applications indicated by the ODA is the 29^th February.

To find out if you are affected, you can enter your postcode here or alternatively refer to the zone maps and further information provided by ODA in their advice, a copy of which can be found here.

If you require any further advice on the effect which these regulations may have on your business, please contact one of our solicitors, who will be happy to assist.

The draft Order has now been released and can be found by following this link - Licensing Act 2003 (Diamond Jubilee Licensing Hours) Order 2012.

As anticipated, the Order seeks to permit extended hours in respect of ‘on sales’ on Friday 1^st June and Saturday 2^nd June until 01:00 the following mornings each day.  Clearly the pressure for these extensions to apply into the early mornings following Sunday 3^rd and Monday 4^th June have not been heeded in the draft Order.

For premises to use the extensions, they will already need to be able to trade until 23:00 on the above dates.

Further, the extension will not apply for off sales of alcohol or for the provision of late night refreshment outside of alcohol sales hours. In effect, late night refreshment only venues will not have the benefit of the extension.

Premises requiring later hours than those to be permitted under the Order or to add forms of regulated entertainment not currently authorised by their premises licence should consider submitting Temporary Event Notices.

We will let you know once the draft Order is approved by Parliament.

Of particular concern to operators may be the fact that:

• On EMROs, it would appear that on the face of the consultation document there may be a hearing to determine the adoption of an EMRO following a short consultation period but not necessarily so and the consultation is silent on the status of operators in any such hearing, if in fact held. The primary legislation indicates that there must be a hearing but does not offer any clarification on the role of operators etc.
• On the Late Night Levy (LNL), although there is a longer period for consultation, the adoption of the levy thereafter would appear to be an administrative matter for the Licensing Authorities with only a requirement for approval by the full Council.

It might have been hoped that the consultation might have delved in greater detail into these and other matters relevant to the issues surrounding the adoption of either the LNL or an EMRO – something on which comment might be made in any responses to the consultation to be given?

The closing date for responses is 10 April 2012.

Individual licences for all sectors will be reduced from £245 to £220.  This reduction applies to both new applicants and those renewing existing licences after this date.  Licence holders applying for a discounted second licence after this date will pay 50% of the new reduced rate.

Annual charges to businesses for membership of the Approved Contractor Scheme will also be reduced from £17 to £15 per employee. 

The previous fee levels have been held since 2007.  The SIA estimate that these reductions will save the Private Security Industry £3 million over the coming year.

SIA Prosecutions - the SIA website also reports on completed prosecutions by the SIA of which there have been 14 in the past year.  On 7th September 2011, Dartford Magistrates fined an unlicensed operative £13,000 with an order to pay costs in excess of £11,000 for engaging in licensable conduct without a licence and two offences of failing to provide information when requested.

Other prosecutions which are initiated by police forces and other government agencies are not reported on the website.

The SIA confirm that ongoing inspections will be carried out across the UK over the next few weeks.

You have been warned! 

According to the Home Office website, the consultation ‘seeks views on certain aspects of EMROs and the late night levy, including the process of adopting an EMRO and/or the levy; categories of business which will be exempt from any EMRO; categories of business which individual licensing authorities may choose to exempt from, or afford a reduction in relation to, the late night levy; and the kinds of services a licensing authority may fund with the 30 per cent of net levy receipts it may retain from the net levy revenue’.

The consultation closes on 10 April 2012.

We will be assessing the detail and further comments will follow.

In the meantime the consultation itself can be found here.

The Caterer (13th January 2012) is reporting on an apparent complimentary meal scam to which operators should perhaps be alert. 

The apparent scam involves a complaint over a meal taken and suggests or requests a complimentary meal to "restore faith in your brand".  In fact, no such meal has been taken and this is just an opportunistic attempt to obtain a free meal.

A London operator is reported to have received two separate but identically worded e-mails last year which alerted him to the issue. 

In April 2012 some of the 'new' Mandatory Conditions will be 2 years old (particularly those relating to irresponsible drinks promotions).  As with any precocious 2 year old, the proud parents are waiting for things to get interesting as the conditions 'find their feet'.

The Industry as a whole has absorbed the new conditions with relatively little pain while Enforcement Authorities remain unclear on their true impact.

This firm has witnessed a lot of rhetoric and threats and in one case an aborted prosecution but otherwise little real impact. Despite what the Home Office's guidance may suggest, no promotion per se is outlawed by the condition as long as it is conducted in a manner which does not carry a significant risk of leading to or contributing to crime and disorder, prejudice to public safety, public nuisance, or harm to children.

This is the first hurdle for any Enforcement Officer to consider - does the promotion create a significant risk? If so, then one must consider whether the activity meets one of the descriptions (or is substantially similar to one of the descriptions) provided in the wording of the condition.

Too often we are finding Enforcement Officers attempting to put the cart before the horse.

The wording of your promotion is also largely irrelevant unless it can reasonably be considered to condone, encourage or glamorise anti-social behaviour or to refer to the effects of drunkenness in any favourable manner. 

Again there must be a "significant risk" and any wording must be read in context when deciding if it can reasonably be considered to be condoning, encouraging or glamorising...

'Buy one; get one free' is one particular promotion which seems (improperly) to be attracting the attention of some enforcement authorities at the present time

If challenged over such a promotion, we would recommend you seek urgent advice before necessarily accepting that such a promotion is de facto irresponsible.  As can be seen from the above there are a number of factors to consider in this area!

Following the European Court of Justice's (ECJ) ruling at the beginning of October (see 'She Shoots, She Scores or Does She'), in respect of the screening of Premier League games through a foreign satellite provider, the High Court hearing into how the system applies in the UK has been listed for 24 February.

Again we would advise those publicans looking to start using foreign decoder cards to wait until the ruling of the High Court.

We will of course keep you up to date with any developments as and when they occur.

Since the last review of the Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks in 2006, the marketing environment has changed considerably with new forums including social networking such as Twitter.

The deadline for the consultation has now been extended to 31 January 2012.  The consultation can be downloaded from the Portman Group’s website on the following link: http://www.portmangroup.co.uk/?pid=1003&level=1

In the most serious and draconian circumstances, interim steps can include closure of the premises through suspension of the licence pending the full review hearing.

If the interim steps ordered continue beyond the full review hearing (a view not uncommonly held by the authorities but against which we have argued in the past), the effect on licensed premises could be catastrophic, if not having a terminal effect upon the business.

The contrary (and our) view is that the interim steps do not continue beyond the final review hearing and even if revocation is ordered at the final hearing, if an appeal is lodged, then trading should be able to continue free of any interim steps pending the hearing of the appeal.

We have just been informed of a case which has just come before Runcorn Magistrates this week where the District Judge has ruled that interim steps do not continue beyond the full Review hearing.  The matter was dealt with by Philip Kolvin QC and Sarah Clover of Counsel. 

As the matter was dealt with by the Magistrates' Court it is not binding, but is undoubtedly persuasive and is an interesting and welcome development on behalf of the trade.  As we hear further, we will of course update you.

Update: for further detail please see: Philip Kolvin Press Release.

The Welsh Government has launched a consultation into the Food Hygiene Rating Bill, one of the key aspects of which will be compulsory public display of the “Scores on the Doors” awarded to businesses following hygiene regulation assessment. The proposal arises out of various E.coli outbreaks.

The Health Minister, Lesley Griffiths, said:

“Compulsory display of hygiene rating will encourage all businesses to improve their procedures and drive up standards”

and Dr Prysor Williams from Bangor University stated that:

“Consumers will vote with their feet. If these businesses are obliged to put up their score and a score of zero is put on the door, then obviously you will choose to eat elsewhere”

Estimated that 30,000 businesses in Wales will be affected by the scheme, which could be in operation by 2014.

It is proposed that failure to display could result in a potential fine of £1,000. Ratings will also be available online.