There have also been reports of a television company mounting under aged delivery ‘sting' operations - albeit in Ireland - but who knows it may come to be regarded as good television by one of the UK channels.

Operators with an on-line or telephone ordering and home delivery service would be well advised to ensure that their robust in-store due diligence procedures are replicated by their delivery teams and that this is properly documented.

If we can assist in advising on appropriate due diligence systems, please do get in touch.

Update - 08 September 2010: Drunks and the ‘off trade' - at a licensing forum we attended last evening in the West Midlands, concern was expressed by an attending licensing police officer about the level of training and due diligence in the off trade (and supermarkets in particular) to avoid sales to drunks, with evidence that such sales do take place. We all know that to prove the offence and that a purchaser was and was believed to be drunk is very difficult - see our previous news item: Drunkornotdrunk - but nonetheless operators should ensure that staff training and awareness extends to this area if only to ensure that any absence of such does not aggravate any other issues which the premises may come to face.

John Gaunt commented "it is always reassuring to be recognised for our efforts and expertise in such a well respected publication and in particular the depth of experience across the team".

Equality Act 2010: What do I need to know? is a series of summary Guides to the key changes in the law, produced by the Government Equalities Office in partnership with the British Chambers of Commerce and others.

That relating to the providers of goods and services is a useful summary and can be found at here. The longer ‘Quick Start' Guide can be found here.

The changes in the law are likely to affect all businesses. The Guides above cite specific examples relevant to the licensed trade. Operators should be reviewing their equal opportunities and discrimination policies in the light of these changes.

A list of those provisions which will come into force on 1 October 2010 can be found at http://www.equalities.gov.uk/equality_act_2010.aspx.

We do not propose to set out in any detail the proposed changes - but we do think that you should be alert to the changes and reference the useful - and commendably short - guides above.

As you will know, the above consultation (“Rebalancing the Licensing Act”) expires on 8 September 2010.

We have today filed our own response to the consultation and a copy of that response can be seen here – in case of interest.

We hope that we have reflected the proper concerns of and for the trade as we see them and drawing on our own extensive experiences.

You will see that we have raised the matter of the short consultation period over which we have had extensive exchanges with the Home Office in recent weeks.  We have also sought to raise genuine concerns about the whole thrust of the proposals. 

If you have any comment on our response, please do not hesitate to contact us.

A reminder that the new National Minimum Wage rates, which come into effect on 1 October 2010, will be:

• £5.93 (£5.80) per hour for workers aged 21* and over;
• £4.92 (£4.83) per hour for 18-20 year olds; and
• £3.64 (£3.57) per hour for 16-17 year olds.

*This band covers workers aged 22 and over until 30 September 2010.

For the first time there will also be an apprentice minimum wage rate of £2.50 per hour, which will apply to apprentices who are under 19 or those that are aged 19 and over but in the first year of their apprenticeship.

The government has also written to the Low Pay Commission (LPC) seeking to clarify their remit and has asked them to pay particular attention to:

• the competitiveness of small firms; and
• the employment prospects of young people, including those in apprenticeships and internships.

The LPC will report to the Prime Minister and the Secretary of State for Business, Innovation and Skills by the end of February 2011, with their recommendations for October 2011. 

This begs the question that if there is to be such delay in implementation of any proposals adopted, why the apparent unseemly haste of the consultation?

This news arises from concerns raised with the Home Office on behalf of Licensing Authorities about how the proposed changes to the Licensing Act contained in its consultation "Rebalancing the Licensing Act" will affect the statutory requirement to review licensing policy statements and have a revised policy in place by 7th January 2011 - a current obligation on all Licensing Authorities.

The Home Office have apparently confirmed that although the majority of the proposals in the Home Office consultation will be introduced via the Police Reform and Social Responsibility Bill - due to be introduced into Parliament in October - any changes to the Licensing Act 2003 will not be brought into force until 2012 at the earliest.

The Home Office consultation on proposals to radically change the emphasis of the laws on licensing expires on 8 September 2010.

We recommend that all operators respond. The consultation document can be found by clicking here.

The Government have just announced plans to ban wheel camping on private land.

In a move which will affect pub and supermarket car parks, wheel clamping on private land is to be banned in England and Wales. The ban, which will be introduced in the new Freedom Bill in November, will impose tough penalties on anyone who clamps a vehicle or tows it away on private land. 

Once the ban comes into force it will be illegal to clamp, tow away or in any way immobilise a vehicle on private land.

Anyone who clamps, immobilises or tows away a vehicle on private land without the specific legal authority to do so will face criminal charges or civil penalties. The ban could come into force as early as next year.

However, the ban will only apply to private land. It will not affect local authorities’ and the police’s right to clamp vehicles. The Driver and Vehicle Licensing Agency (DVLA) will also continue to clamp or tow away vehicles if the vehicle tax has not been paid.

In a statement, supported (once again) by the Gambling Commission, the HMRC have provided further details on their definition of a "gaming machine" and when a supposed SWP machine can stray into this category.

We have followed this issue for some time and for a fuller history please refer to our earlier articles: When is gambling commission advice, not advice? , HMRC clarifies Polices on Quiz Games and Tax Arrears', 'Skill with Prizes' machines - update' and ‘Skill with Prizes' machines - a developing issue?

In short, in 2009 the HMRC made an announcement that many SWP machines in circulation were, in their opinion, "gaming machines" and were therefore liable for Amusement Machine Licence Duty (AMLD). Those who had not previously registered (practically everyone) were liable for additional fines and back payments. A huge potential liability estimated at £85m loomed over the industry that was understandably up in arms.

In light of considerable pressure from industry groups such as BACTA and BBPA amongst others, a review was announced by the previous government and recently concluded on the 30th June 2010.

During the consultation, guidance was issued by the Gambling Commission entitled  "Is a prize machine a gaming machine?" This guidance was found to be wholly insufficient from an industry point of view posing several more questions while answering non definitively.

In the most recent statement from the HMRC further clarification, agreed by the Gambling Commission, has been published. In addition, the HMRC reaffirmed its view that arrears of AMLD are not now due in the case of quiz games because the HMRC's 2007 version of public notice number 454 entitled "Amusement Machine Licence Duty" was misleading.

They have also rowed back on previous statements regarding popular SWP games such as "Cluedo" and "Monopoly" which they had previously categorised as "gaming machine" games. Following a second view, the HMRC have now decided (correctly) that the "dice" utilised in these games does not affect the player's chance of winning and therefore these games are not "gaming".

The new guidance, although not absolute, does provide a better understanding of the HMRC view. Included within the guidance is an offer by the HMRC to make specific rulings where there is "genuine" doubt as to the status of machines. Such requests should be made to:

The Gambling Taxes Policy Team

HM Revenue & Customs
3rd Floor, Ralli Quays,
3 Stanley Street
Salford
Greater Manchester
M60 9LA

The new guidelines will take effect on the 1st November 2010 after which date machines falling within the definition of gaming machines will be liable for AMLD and arrears of payments.

The full announcement can be read here, to summarise the additional criteria are:

1. The game must be a test of skill such as knowledge, dexterity, visual recognition, logic, memory, reaction, hand-to-eye coordination, numerical and lexical ability, or a mixture of any of these skills.

2. The game rules and game play instructions must be available to the player prior to crediting the game.

3. The game must not look like a recognised game of chance which will depend upon the whole presentation of the game. While no single factor is determinative, the game should seek to avoid:

• G1ambling themes (e.g. casino games, bingo, and lotteries);
• Symbols associated with gambling (e.g. fruit symbols associated with reel- based gaming);
• Word associated with chance or gambling (e.g. "lucky", "random", and "jackpot");
• Any "Repeat Win Feature" that enables a player to win a second prize without completing successfully another game of skill.

4. There should be a reasonable amount of player interaction to win a prize.

5. All advertised prizes must be available to win in each game.

6. The level and type of skills required to win( including reaction time) must be reasonable considering the context of the game in question.

Indicative examples of this would include:

• The time to react to a visual stimulus should not be less than around 225 milliseconds.
• For quiz gamers there should be sufficient time to read the question and all possible answers (normally at least 5 seconds)
• In visual recognitions games, such as spot the difference, all observations must be visible to the human eye an there should be at least 2 seconds per observation
• The time to memorise 50 upturned cards of various symbols should be at l east 10 seconds.

7. The level of difficulty may vary from game to game for the purpose of challenging a player's use of skill provided that it is within reasonable bounds, for example at its hardest setting a player is not required to complete more than three times as many actions as he would be required to do at the game's easiest setting.

8. The game must not enable the operator to change the game settings so that the game ceases to be compliant with characteristic 6 above.

For further information please contact either Tim, Chris or Jonathan.

The Home Office has today issued a public consultation document regarding their review of the Licensing Act 2003. The deadline for commenting is the 8th September 2010 (6 weeks time).

Concerns have been raised regarding the speed with which the government seem intent to progress this matter. The workshops, mentioned in the article "Summer Transfer Hots Up", are due to take place within the next 2 weeks with an announcement of their findings and legislative reform proposals in the autumn.

A link to the full consultation document is below, some of the ‘highlights’ of the consultation’s proposals include:

• A late night levy to help pay for Policing and the scrapping of Alcohol Disorder Zones.
   
• Increasing Police powers in respect of closure orders, extending period of closure from 24 hours to 7 days.
   
• Doubling the fine for “persistently selling alcohol to children” from £10k to £20k.
   
• Banning below cost sales of alcohol.
   
• Increasing licence fees to cover costs of enforcement.
   
• Revocation of licences for non payment of fees.
   
• Bringing into force and amending uncommenced powers to create Early Morning Restriction Orders so that Local Authorities can decide between which hours they would like to prevent premises from opening.
   
• Scrapping the proximity rule for complaints over a licence.
   
• Addition of “Public Health” as a licensing objective.
   
• Amendments to the current Temporary Event Notices system including:
  - Increase to time limit for Police to object
  - Enable all responsible authorities to object
  - Increase notification period and
  - Reduce the number a single personal licence holder can apply for from 50 to 12 per location.
   
• Amendments to the grant of premises licences including:
  - Give Authorities right to refuse applications or review licence without requiring representation from a responsible authority
  - Remove the need for Authorities to demonstrate their decisions are reasonable.
  - Reduce the evidential burden of proof required by Licensing Authorities in licence applications and reviews and increase the weight given to representations from the Police.
   
•  Amendments to the appeal process, bringing Licensing Authority decisions into force immediately, regardless of whether an appeal is lodged and making it a default position for a Magistrate’s Court to remit a matter back to the Licensing Authority instead of imposing their own decision.
   
• Consultation on the of new mandatory conditions order, with the possibility of scrapping the same. (Not a guarantee!)

Very few of these changes will be welcomed by the industry save for the consultation regarding the new mandatory conditions. Some may feel however that any amendment to the mandatory conditions, especially the controversial “irresponsible drinks promotion” condition, are unlikely to materialise in any final proposals by the Home Office.

Home Secretary Theresa May outlined the key points in a speech on anti-social behaviour on Wednesday. The Home Secretary was quoted:

“The benefits promised by the 24-hour drinking café culture have failed to materialise and we have seen an increase in the number of alcohol-related incidents and drink-fuelled crime and disorder.”

Although the Home Office appear to accept in principle that the majority of pubs and bars are well-run businesses, the Home Office seems intent on a further 'rebalancing' of the system in favour of local communities in what is currently a difficult trading period, such a ‘rebalancing’ could adversely affect all premises, whether well run or not.

We hope to take part in the consultation and will report on our findings in future articles.

Responsibility for alcohol licensing and enforcement has transferred from the DCMS to the Home Office. The DCMS will retain responsibility for regulated entertainment therefore creating a situation reminiscent of the old regime where alcohol and entertainment responsibilities were split between the Magistrates and Local Authority.

The move is designed to avoid repetition of responsibilities and to stream line government but many will fear it will lead to an increase in regulation and mandatory conditions at a time responsible operators are calling for less interference and bureaucracy.

The Minister for Crime Prevention, James Brokenshire, said, "We have already committed to overhaul the Licensing Act to give local authorities and the police much stronger powers to remove licences from, or refuse to grant licences to, any premises that are causing problems."

"We will toughen the sanctions for those premises found to be persistently selling alcohol to children and will allow local councils to charge more for late-night licences, which in turn will raise money for extra policing. We will also ban the below cost sale of alcohol."

Interestingly we understand a fast track consultation on proposed changes to the Licensing Act is to be launched by the month end with workshops for industry members are to take place in London between the 30th July and 6th August with the overall "consultation" taking only 6 weeks. It is understood this is to allow the government to implement any additional measures in the autumn.

We will be looking to participate in this process and would urge you to become involved to seek to maximise the trade voice on this issue!

Currently, should a Premises Licence Holder die, become mentally incapable or be declared insolvent any premises licence held would immediately lapse and licensable activity must cease immediately. These licences can be reinstated but only if swift action is taken within 7 days of the event. The new order will extend this period to 28 days. This appears to be a sensible amendment and received almost universal support in consultation responses.

Another matter addressed is the time limit for Police to file a representation to TEN applications. Currently the police are permitted only

"48hrs" to file their written objection to any TEN. This can be problematic if the TEN is served on a Friday evening; in such cases Police licensing officers returning to work on Monday after a weekend off duty may find they are too late to object. The Police in future will be permitted "2 working days"; this avoiding the situation described above. Finally, the length of time an Interim Authority lasts will be extended from 2 to 3 months.

Regrettably other limbs of the consultation have been abandoned. A proposal to allow TEN applications to be made on less than 10 days notice with the consent of the Police has been dropped. This provision which was of real interest to those within the industry and would have given sensible flexibility for operators.

In addition a proposal to remove the requirement for Licensing Authorities to review their policies every 3 years has also been dropped.

The surviving amendments now seem certain to succeed and we now await the Secretary of State to formally sign them into law. Once adopted, we will confirm the date the amendments will take effect.

What you may not be alert to are not unrelated changes to the Weight and Measures Legislation in respect of smaller measures. These were due to be introduced in April but such introduction was postponed to 1 October, and now coincides with the new mandatory condition.

Following conclusion of the Government's public consultation on the subject between October '08 and January '09, the proposed amendments to the Weights and Measure (Intoxicating Liquor) with effect from 1 October 2010, are set out below:

• The introduction of a new permitted measure for draught beer and cider, namely 2/3 pint. Draught beers and ciders can now be sold in 1/3 pint, 1/2 pint, 2/3 pint or multiples of 1/2 pint servings.

• Still wine is not subject to any measure regulations, if sold in quantities of less than 75ml. This means that the previous illegal practice of selling small samples of exclusive wines at affordable prices for the connoisseur will become permissible. Several businesses already exist offering this service but they will become fully compliant with the relevant legislation only after the 1 October.

• Fortified wine, when sold by the glass, may be sold in more modest measures of 50ml or 70ml.

• Gin, rum, vodka, whisky and now brandy must be served in either 25 ml or 35 ml or a multiple of either (but not both).

Please be aware.

This is not an isolated incident though. We have also been approached this week in relation to similar advertising including not only A-boards but also banners outside of licensed premises in Gloucestershire.

A-boards and other forms of advertising could be argued as being essential to a pub's trade, particularly if they are situated in the countryside as they give a good indication as to whether premises are open, especially to those passing by in vehicles.

If you are asked to remove any form of outdoor advertising or signage from your premises, please contact us for advice as it may be that the advertisement is excluded from the planning authority's direct control by having deemed consent rather than requiring express permission.

The ban which has its third anniversary today had been due to be reviewed if Labour had remained in power. This had raised fears within the Industry that the review would have examined the issue of whether the ban should have been extended to beer gardens and pub doorways.

The Guild of Master Victuallers (GMV), were among those groups lobbying against a review with chairman, Bill sharp, warning that "thousands of pubs are at risk from extensions to the smoking ban", and that it "would be utterly devastating, especially for smaller more traditional pubs and would accelerate their decline,"

The announcement has now raised hope that the existing measures will not be extended.

Coincidentally however anti-smoking enforcement activity may be on the increase. We have seen complaints both about alleged inadequate signage and smoking "back of house" this week.

Gone will be a dozen eggs; 12 rashers of bacon; 6 bread rolls - as a description. This will potentially affect hundreds of grocery lines.

Under the current regulations each country is allowed an exemption to sell by number but under the new proposed EU Food Labelling Regulations, this dispensation will go and all groceries would have to be sold by weight alone.

A second reading of the proposals is still outstanding and the food industry is lobbying hard for ‘common sense to prevail'.

The good news is that no changes were made to gambling duties in the budget.

The bad news is that there is the increase in VAT.  This is a hammer blow to the industry due to the way in which VAT is paid and collected. Business In Sport & Leisure (BISL) made a statement announcing that the impact will be most likely in 3 ways:

1. A loss of around 2% on the machine margin as VAT is assumed to be part of the cash box revenue.  This will affect all machine income in gambling premises and any premises with gaming machines such as pubs.  
2. Increased purchasing costs where businesses have reduced rates of recoverable VAT.  
3. A potential loss from the impact of any slowdown in consumer spending.

The impact of this change will place more pressure on an industry already severely hit by the recession,  the outcome of which could see more small business’s in the sector who are already struggling, closing.

Jonathan Hyldon

This was not without incident though as although MSPs voted for the principles of the Bill, an amendment was passed calling on the Government to ditch section one, which contains the minimum pricing proposal, when it comes before MSPs at stage two.

All parties have supported a number of key measures in the Bill which include:

• Further bans on irresponsible promotions and restricting marketing activity in off-sales locations such as supermarkets

• Placing a duty on Licensing Boards to consider raising the purchase age of alcohol to 21 in all or part of their area

• Establishing the power to introduce a Social Responsibility Fee for some retailers

• Tighter proof of age rules

In relation to minimum pricing the opposition parties argued that it was probably illegal under EU Competition law to set a minimum price per unit of alcohol. Further, ministers have yet to name their preferred minimum price for each unit of alcohol within a drink.

The proposal for minimum pricing has also sparked anger from parties who argue that responsible drinkers are yet again being punished which has led to calls for the specific targeting of cheap "problem drinks", such as fortified wine and strong cider.

Research carried out by York University has revealed alcohol misuse in Scotland is costing taxpayers between £2.4 bn and nearly £5bn a year - a minimum of £500 for every adult.

The Gambling Commission recently launched (without any fanfare) some further “guidance” regarding the SWP issue currently facing the industry.

The advice entitled “Is a prize machine a gaming machine?” has an extremely encouraging title but little after the title is either new or encouraging.

The present “working” definition of a “gaming machine” is based upon a convention formed between the machine manufacturers and the Gambling Commission over several years and links back to the Gaming Board. The premises operators who, in good faith, took possession of these now disputed machines having been told they were not “gaming machines” are now caught in the middle of an issue, not of their making; which could have serious financial ramifications.

The guidance differs from the hard line adopted by the HMRC in that the Commission suggests that there are a number of criteria none of which individually is decisive in deciding whether a machine is or is not a gaming machine.

The HMRC have taken a more definite view and have focused upon one namely “Is the game presented as involving a game of chance”.  In the opinion of the HMRC, if the answer is yes then the machine is a gaming machine and the tax consequences flow.  

It therefore appears there is some clear water between the two on this critical point.  

A link to the full guidance can be found here. 

Discussions continue between industry representatives, the Gaming Commission and the HMRC however while this period of uncertainty continues nobody is benefiting.  We continue to watch this issue unfold and will update further in due course.

Advice has now been issued as to how you recover your money, however there are certain restrictions.

The PPL has written to 41,000 hotels, restaurants and pubs regarding the refund system. Therefore, if you receive correspondence from the PPL, please do not dismiss it as junk mail.

There are certain criteria in relation to any claim.

Firstly, it only relates to payments after 2005.

Secondly, if you have overpaid by £50.00 or less you will not be entitled to a refund.

Thirdly, £50.00 overpayment generally equates to an audible area of 100 square metres or below and in the decision you are not allowed to include areas such as foyers and receptions in which the music might be audible, but is not significant contribution to your business.

Fourthly, this calculation particularly applies to hotels and if you are a hotel operator, your claim form will ask you to update the audible area.

Lastly, the PPL has the facility to raise a surcharge if you were late by more than 28 days in paying your licence renewal in any year. This equates to 50% of the tariff for that year and may significantly reduce the amount you are entitled to.

However, it is still worth making an application despite the above. For example, if you had an audible area for music of between 300 and 400 square metres in 2009, you would have paid £464.80 to the PPL. If you paid promptly, the actual amount due now under the tribunal decision is only £109.75, providing you with a substantial refund for that year alone of £355.05 and if you had been paying on this basis since 2006, you could be entitled to a refund of £1,330.75 !

It is also worth knowing that once your completed claim form is with the PPL they must make the refund to you within 56 days, unless extra information is required. This could therefore result in a nice cash injection before the end of the Summer.

If you do not receive a letter automatically from the PPL, we would recommend that you contact them to establish your claim and this is easiest via their website where you can download a claims form.

The website can be accessed via this link www.ppluk.com/en/music-users/copyright-tribunal-refunds.