LICENSING COMMITTEE

21 JULY 2010

Information Update

Licensing Act 2005 licence updateJune 2010

Advice re urgent LA03 hearings following local government elections 30/04/2010

Local Election Query: Licensing Sub-committee decisions immediately following local elections

LACORS has received the following query regarding urgent licensing decisions in the immediate aftermath of local government elections:-
Our first full council meeting after the May 6th elections is not until 25th May, so this is the first date on which a new licensing committee can be ratified. We are an “all out” council, so the elections affect all wards and councillors.Were we to receive for example an objection notice to a TEN from the police in early May we would not have a committee to draw a sub-committee from to hear the objection notice until post 25 May, which is obviously far too late. The same issue applies to summary reviews
While we will postpone normal premises licence hearings for a week or two with TENS or expedited hearings for reviews there is not that option. All of London and possibly some unitary authorities will be in the same boat. Is there an interim solution? Clearly this only happens every 4 years and last time we got away without the need for a hearing.
Are you able to advise on whether a licensing sub-committee drawn from an existing licensing committee has authority to decide matters such as the above in the period between the election and the appointment of the new licensing committee, or if not, what the alternative arrangements should be?
LACORS advises that:-
s7(3) of the Local Government Act 1972 (c 70) states that a member who does not stand for re-election, or who is not re-elected, retires as a councillor on the fourth day after the election.

Newly elected councillors take office on the fourth day, i.e. on the same day as their predecessors retire.
The four day period should allow sufficient continuity for all local authority committees and sub-committees to function in the immediate aftermath of the local elections.
During the period from the end of the s7 four day period until the next full council meeting, (at which the new licensing committee can be appointed), licensing sub-committees can be drawn from the continuing members of the pre-election licensing committee, i.e. from those licensing committee members who have been re-elected, assuming that there are sufficient remaining members for the sub-committee meetings to be quorate

Draft Statutory Instrument - Order will amend the Licensing Act timescales on Interim Authority Notice and Police objections to TENS

Published Date: 23/Mar/2010

The Order will come into force on the day after the day on which it is made and will amend the Licensing Act 2003 (“the Act”) to extend the timescales applicable in relation to interim authority notices, and applications to transfer lapsed premises licences. A further amendment will change the timescales for police objections following receipt of a temporary event notice.
The Order will introduce the following amendments:
INTERIM AUTHORITY NOTICES

  • Article 2(1) amends section 47, so that an interim authority notice may be given within 28 days of the death, mental incapacity or insolvency of the licence-holder (rather than 7 days as previously). In addition, the maximum period in which an interim authority notice can have effect is extended from two months to three months.
  • Paragraph (2) of article 2 amends section 48 of the Act so that the maximum period within which the police may object to an interim authority notice is two working days following receipt of the notice (rather than 48 hours as previously).
  • Paragraph (3) of article 2 amends section 50, so that the maximum period for making a transfer application following the lapse of a licence is 28 days after the lapse of the licence (rather than 7 days as previously).

TEMPORARY EVENT NOTICES

  • Article 3 amends section 104 of the Act so that the police have two working days after receipt of a temporary event notice to object to it (previously 48 hours).

Sales of Tobacco, Death of the Vending Machine

Date: 09/03/2010

Cigarette vending machines, an innovation in availability to all those caught without their necessary nicotine fix at a whole host of locations are coming to the end of their life.
New legislation found in the Health Act 2009 and inserted into "The Children and Young Persons (Protection from Tobacco) Act 1991" is at the draft regulations stage on its passage through both Houses of Parliament. The new Protection from Tobacco (Sale from Vending Machines) (England) Regulations 2010 are due to come into force on 1 October 2011 and will state that the sale of Tobacco from vending machines is prohibited.
The responsibility for ensuring the prohibition falls to "the person who controls or who is concerned with the management of the premises where the automatic machine is located". In the case of the licensed premises this could be the premises licence holder or the designated premises supervisor.
The regulations closely follow another piece of legislation developed during the latter stages of debate during the Health Bill 2009. These new regulations relate to the removal from display of tobacco products other than either at the point of sale or an enquiry regarding a sale of tobacco.
The Tobacco Advertising and Promotion (Display) (England) Regulations 2010 have a staggered start to their life, depending on who is doing the promotion or advertising.
The Regulations have separated large shops (relevant floor area of 280 sq metres or greater), and both tobacconists and "others".
Specialist tobacconists (those premises who derive at least 50% of their sales from cigars, snuff, pipe tobacco and smoking accessories) are exempt from the latest regulations. However all other vendors are caught which is why the implementation of the legislation is in two stages. The process (it is claimed) will provide sufficient time for the small corner store to prepare for and implement the requirements of the new regulations.
What the Regulations Say
A person who in the course of the business displays tobacco products or causes tobacco products to be displayed and in a place in England is guilty of an offence.
A place is defined as "premises in England where tobacco products are sold in the course of business". This description however excludes those premises which are accessible only to those engaged in or employed by a business which is part of the tobacco trade and from which the prices are not visible from outside the premises.
The regulations come into force for large stores on 1 October 2011 and exclude bulk tobacconists and other sales outlets. The same regulations for all other outlets including those excluded from the first date (not tobacconists) come into force on 1 October 2013 - this will include the corner and convenience stores.

The Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010

Published Date: 23/Mar/2010

The order, made on 16th March 2010 will come into force on 6th April with the exception of paragraphs 4 & 5 of the Schedule which will come into force on 1st October 2010.The conditions in paragraphs 1 to 3 and 5 of the Schedule apply to existing and future premise licences and club premises certificates where the licence or certificate authorises the supply of alcohol, but NOT where the licence or certificate authorises the sale by retail or supply of alcohol ONLY FOR CONSUMPTION OFF THE PREMISES.MANDATORY LICENSING CONDITIONS1.1) The responsible person shall take all reasonable steps to ensure that staff on relevant premises do not carry out, arrange or participate in any irresponsible promotions in relation to the premises.(2) In this paragraph, an irresponsible promotion means any one or more of the following activities, or substantially similar activities, carried on for the purpose of encouraging the sale or supply of alcohol for consumption on the premises in a manner which carries a significant risk of leading or contributing to crime and disorder, prejudice to public safety, public nuisance, or harm to children–(a) games or other activities which require or encourage, or are designed to require or encourage, individuals to–(i) drink a quantity of alcohol within a time limit (other than to drink alcohol sold or supplied on the premises before the cessation of the period in which the responsible person is authorised to sell or supply alcohol), or(ii) drink as much alcohol as possible (whether within a time limit or otherwise); (b) provision of unlimited or unspecified quantities of alcohol free or for a fixed or discounted fee to the public or to a group defined by a particular characteristic (other than any promotion or discount available to an individual in respect of alcohol for consumption at a table meal, as defined in section 159 of the Act); (c) provision of free or discounted alcohol or any other thing as a prize to encourage or reward the purchase and consumption of alcohol over a period of 24 hours or less;(d) provision of free or discounted alcohol in relation to the viewing on the premises of a sporting event, where that provision is dependent on–(i) the outcome of a race, competition or other event or process, or(ii) the likelihood of anything occurring or not occurring;(e) selling or supplying alcohol in association with promotional posters or flyers on, or in the vicinity of, the premises which can reasonably be considered to condone, encourage or glamorise anti-social behaviour or to refer to the effects of drunkenness in any favourable manner.2. The responsible person shall ensure that no alcohol is dispensed directly by one person into the mouth of another (other than where that other person is unable to drink without assistance by reason of a disability).3. The responsible person shall ensure that free tap water is provided on request to customers where it is reasonably available.4.(1) The premises licence holder or club premises certificate holder shall ensure that an age verification policy applies to the premises in relation to the sale or supply of alcohol. (2) The policy must require individuals who appear to the responsible person to be under 18 years of age (or such older age as may be specified in the policy) to produce on request, before being served alcohol, identification bearing their photograph, date of birth and a holographic mark.5.The responsible person shall ensure that–(a) where any of the following alcoholic drinks is sold or supplied for consumption on the premises (other than alcoholic drinks sold or supplied having been made up in advance ready for sale or supply in a securely closed container) it is available to customers in the following measures–(i) beer or cider: ½ pint;(ii) gin, rum, vodka or whisky: 25 ml or 35 ml; and(iii) still wine in a glass: 125 ml; and(b) customers are made aware of the availability of these measures.Bournemouth Borough Council Act 2010 (street trading)

Published Date: 16/Apr/2010

The Act amends the application of the Local Government (Miscellaneous Provisions) Act 1982 in Bournemouth to include the supplying of or offering to supply any service in a street for gain or reward.
With regard to Pedlars, the Act expands the definition of pedlars, to include if the trading is
carried out only—
(i) by means of visits from house to house,
(ii) with any goods or handicraft equipment carried on his person as a pedestrian, or
(iii) with any goods or handicraft equipment carried in a wheeled vehicle (with a carrying capacity no greater than one cubic metre) pushed or pulled by him
Additional requirements are placed on pedlars requiring that they do not occupy any location within 50 metres of another person (trader), they move at least 200 metres after 5 minutes or as soon as possible once trading ceases, that each location within any 12 hour period must be at least 5 metres away from any previous location that day, and that they prominently display their pedlar’s certificate.
Conditional powers of seizure are granted to an authorised officer or constable where they have reasonable grounds for believing that an offence has been committed, and there is provision for compensation in the case of unlawful seizure.

Are you confident your staff would pass a Test Purchase?

Date: 15/04/2010

The dog days of the current Parliament have been and gone. As expected, the Mandatory Conditions made their way onto the Statute book but continue to create confusion. The Guidance, published by the Home Office was removed from its website almost as soon as it was posted and further assistance with respect to interpretation of those Mandatory Conditions is unlikely to materialise before a new administration takes over the running of the country in mid-May.
However, just when we thought that with Parliament away for the next month, our lives would be quieter, the Police in one area of North Wales may take a different view. 11 pubs in Denbeigh in Ruthin were closed last Friday and Saturday night, in what is probably a record test purchase failure led closures at one time.
The pubs were told either to close for 48 hours, or face prosecution with the risk of up to a £20,000 fine for failing either 2 or 3 test purchases.
Remember that the rules changed from 29th January 2010. Two test purchase failures are now all that is required to be guilty of persistently selling alcohol to under 18s. Each of the premises involved in this latest operation will have to go through the 'review' process as well as losing the revenue for the two days the venues were forced to close.
In the North Wales operation 47 bar staff attended a training session about their responsibilities and duties during the closure period. It emerged that 35 of those 47 had not received any previous training with respect to underage sales (wow!).
My recommendation is that you shouldn't be fooled into thinking that the next month or so is a quiet period for you, as well as your member of Parliament. If anything, you need to be more vigilant as Police operations are guaranteed to increase in the run up to, and during, the World Cup. In order not to get caught, training, training updates and records of training are essential. Ensure your staff know why the training is necessary and that checks are rigidly enforced.
CI Zone Off Licence Appeal Dismissed in Brighton

Published Date: 04/May/2010

Off-licence refused in the Brighton and Hove City Council Cumulative Impact Area.
Brighton Magistrates’ dismissed an appeal against the decision of the Brighton & Hove City Council Licensing Panel, on the 5th January, 2010, to refuse a premises licence to One Step, a convenience store located on West Street. The original application was for the sale of alcohol, off the premises, from 08:00 – 23:00 and the provision of late night refreshment from 23:00 – 05:00.
West Street is located within the Cumulative Impact Zone; the special policy adopted by the Brighton & Hove City Council applies to both premises for on sales and off sales. The policy for the area required the operator to prove that the operation of the licence would not add to the cumulative impact being experienced there.
The Licensing Panel refused to grant the application as the premises are situated in the most sensitive part of the Cumulative Impact Area. It was considered that one more additionallicensed premises in this highly stressed part of the Cumulative Impact Area would undermine all four of the licensing objectives. The Panel took the view that no amount of conditions could be imposed on this particular application that would be effective in mitigating the problems they considered it would add to.
The Panel had particular concerns regarding the pre-loading of alcohol; the easy availability of glass bottles and that the provision of late night refreshment would hinder the dispersal of people from the area.
At the appeal hearing One Step withdrew its application for the provision of late night refreshments, limited its hours for the sale of alcohol to 08:00 – 20:00 and offered enhanced conditions. The Magistrates’ (and the local authority) acknowledged that the Appellants were responsible and professional operators.
The Magistrates’ dismissed the appeal being concerned that the premises are indeed situated in the most sensitive part of the Cumulative Impact Area and accepted the evidence presented by the Sussex Police, that one more licensed premises would undermine the licensing objective in this highly stressed area and have an adverse effect. A particular concern was that the level of sales would have a significant increase on the availability of alcohol in this highly stressed and sensitive location, along with an increase of glass bottles. They also took the view that extensive conditions offered by One Step confirmed the scale of crime and disorder and public nuisance on West Street.
There was no order as to costs
One Step was represented by Roy Light
Brighton & Hove City Council was represented by Leo Charalambides
Decision date 27th April, 2010.

Costs ordered against successful licensing appellants

Published Date: 05/May/2010

Prasannan v. Royal Borough of Kensington and Chelsea [2010] EWHC 319 (Admin) was an appeal by way of case stated against the decision of a district judge to award costs against the appellant, following her successful appeal against the decision of the respondent council to revoke her premises licence.
The appellant’s premises, an off-licence in Kensington, had failed three test purchase operations in as many years. Following review proceedings, the appellant’s premises licence was revoked. At the appeal against that revocation, the district judge took a very unfavourable view of the appellant. He concluded that the appellant’s evidence, including her evidence that she had trained her staff properly and supervised them robustly, was not to be believed on any point except one, namely that the premises would not be commercially viable if alcohol could not be sold. He formed the view that the appellant regarded the conditions of her licence as unimportant and an unfair restriction of her ability to trade. He was also critical of the manner in which the appellant had conducted the appeal proceedings, having breached case management directions by producing a bundle of documents very shortly before the hearing. The decision of the district judge was that, although he would be justified in rejecting the appeal in its entirety, he would nevertheless give the appellant “one last chance”. The appeal was therefore allowed and the premises licence was reinstated, with the addition of a stringent new condition that only the appellant and one other member of staff were permitted to sell alcohol. As the High Court judge later observed, the appellant “can be said to have succeeded on her appeal, but it was hardly a resounding victory”.
The issue of costs was addressed immediately after judgment was handed down. The council applied for an award of costs, and produced a schedule of costs totalling a little over £23,000. The district judge took the view that the appellant, through her conduct, had brought the revocation of the licence entirely upon herself. He also took into account his criticisms of her evidence, and her very late production of documents without explanation. An order for costs was made in favour of the council, in the sum of £20,000.
The appellant initiated proceedings in the High Court, asking that the costs order be set aside in its entirety on the basis that: (1) the judge had no power to order a successful appellant to pay the respondent’s costs; and (2) (relying on R v. Highgate Justices exp Petrou [1954] 1 All ER 406) the order was so wholly unjust and unreasonable as to be akin to the imposition of an unlawful financial penalty.
Giving the judgment of the court, Belinda Bucknall QC (sitting as a Deputy High Court Judge) rejected both arguments.
Regarding the first ground of appeal, the judge held that, in licensing appeals, the powers of the court in relation to costs are governed by section 181(2) of the Licensing Act 2003, and not by section 64 of the Magistrates’ Courts Act 1980. These two provisions are entirely separate and independent of each other. Section 181(2) provides a general discretion as to costs, and does not require that costs follow the event. This general discretion is subject only to the usual requirement that, in deciding what order is just, the court must take into account all relevant matters and must not take into account irrelevant matters. In the instant case, there was no error of law; the district judge had a discretion to make a costs order in favour of the council, and he exercised it on proper grounds. In particular, he was entitled to take into account the appellant’s failure to comply timeously with case management directions and her late production of certain documents. The fact that the appellant had been allowed by the district judge to adduce those documents in evidence was wholly irrelevant.
Secondly, unlike the case of Petrou on which the appellant sought to rely, there were no facts in the present case which would justify the conclusion that the order of the district judge was a penalty dressed up as costs. The costs were summarily assessed on the basis of a written schedule provided by the respondent, and the order was for a lesser sum than that claimed. The amount was substantial, but in all the circumstances it was not obviously unjust.
Prasannan is therefore a decision which should be welcomed by local licensing authorities who, as sole respondents to licensing appeals, may find themselves with little alternative but to defend an appeal, which is then subsequently allowed when the appellant improves its practices or offers suitable licence conditions during the course of the appeal proceedings. Prasannan reinforces the principle in City of Bradford Metropolitan District Council v. Booth [2000] EWHC Admin 444 that in administrative matters costs need not necessarily follow the event, but are instead subject to a general discretion in the court to make such order as is just and reasonable in all the circumstances.
Essex bars and clubs using loophole in mandatory code: