This month in summary
- Operating Licences: Annual Fees Reminder
- Top Licensing Tip, by Luke Elford: Surrenders: Don't automatically wave the white flag
- Government slash maximum FOBT stakes from £100 to £2
- Operating Licences: Annual Fees Reminder
- Gambling Commission publishes business plan
Guidance to the Licensing Act updated
The Home Office has released its updated S182 Guidance which makes a number of changes to the previous Guidance that has been with us for 12 months.
Introduction of Cumulative Impact Assessments (CIA's)
The Policing and Crime Act 2007 introduced CIA's, but the measure has only taken effect from 6 April 2018.
The Guidance deals in some detail with the introduction of Cumulative Impact Assessments. Whilst this new requirement is likely to only see the light of day as each authorities' policies come up for renewal, its introduction will hopefully push them into undertaking and documenting proper, evidence- based, assessments of the need for cumulative impact policies (existing and proposed). Whilst strictly speaking it has always been the case that cumulative impact zones (CIZ's) should have only been introduced after scrutiny of an evidential case for their introduction, many practitioners and premises licence operators feel that in particular the retention of particular CIZ's over numerous iterations of a council's policy without change, has been less than rigorous.
The new CIA's require authorities to revisit their assessments every 3 years and undertake a consultation of the statutory consultees- including the licensed trade.
Where CIZ's are introduced or retained, the council's CIA needs to be summarised in their licensing policy. This summary is to include, but is not limited to, the nature of the problems identified and the evidence for such problems, the geographical extent of the area covered by the assessment, the types of premises described in the assessment and the types of application for which would likely be inconsistent with the Licensing Authority duty to promote the licensing objectives to grant.
Whilst some local authorities have been diligent in producing something similar to this in the past, it is hoped that this change in the law will force all councils to properly engage in assessing an area of licensing that many operators feels inhibits town and city centres from developing their offer and allowing innovative and dynamic businesses to flourish.
Semantic changes in relation to the expert roles of responsible authorities
The following has been deleted from the Guidance: "In their role as a responsible authority, the police are an essential source of advice and information on the impact and potential impact of licensable activities, particularly on the crime and disorder objective… The Licensing Authority should accept all reasonable and proportionate representations made by the police unless the authority has evidence that to do so would not be appropriate for the promotion of licensing objective."
This section was often interpreted by councillors as meaning that whatever the police said had to be taken more seriously than any other submissions, meaning that police evidence sometimes was not scrutinised as it should have been.
Instead, there is a more general recommendation to take into account the expertise of all responsible authorities who make submissions, albeit so long as the evidence can withstand scrutiny. It is hoped that this change will ensure the rights of all parties making submissions to be given equal and proper weight, based on the evidence presented.
When is an on-sale an off-sale?
One point of contention that needs to be cleared up is the confusion between what constitutes an on-sale or off-sale. Paragraphs 8.35 to 8.37 of the Guidance makes reference to on and off-sales in relation to use of gardens and when the alcohol is appropriated to the contract that we would contend is at odds with the actual definition of what an 'on' or 'off' sale is. On and off-sales were always historically understood from the point of view of the seller (who, after all, is the person likely to be prosecuted if he doesn't have the correct licence). On-sales were drinks sold in open containers for consumption there and then. Off-sales were sold in closed containers for drinking away from the premises- at home, for instance. The new guidance confuses matters by effectively putting the sale into the hands of the purchaser. What starts as an on-sale, i.e. the purchase of a pint in a bar seemingly becomes an off-sale if the customer takes it into an unlicensed beer garden or onto the pavement outside the pub, only to become an on-sale again if he goes back inside. The logic of such a position is not only counter-intuitive, it would lead to all sorts of absurd consequences. Clarity needs to be given on this point.
Top Licensing Tip: By Luke Elford
Surrenders: Don't automatically wave the white flag
Alcohol licensing has some wonderful quirks and there are times when you happen across something that just makes you smile. We are often asked about obtaining a new premises licences at sites which were previously licensed, but where the premises licence has been surrendered. Surrenders are dealt with under section 28 of the Licensing Act 2003 and it is worth just reminding ourselves of the requirements for a valid surrender:
- Where a premises licence holder wishes to surrender a premises licence he may give the Licensing Authority a notice to that effect
- That notice must be accompanied by the premises licence or, if that is not practicable, by a statement setting out the reasons for failing to provide the premises licence
- Where a notice of surrender is given in accordance with section 28, the premises licence lapses on receipt of the notice by the authority
The crucial element here is the return of the premises licence (or the provision of a statement setting out the reasons for failing to provide the premises licence). What happens if the premises licence hasn't been returned and a statement detailing why it hasn't been returned hasn't been provided? The answer is that the premises licence still exists (though of course it may be suspended for non-payment of fees) and it can be transferred accordingly. We have had great success for our clients using just this line of reasoning leading to the aforementioned smiles. The moral of this story? If a Licensing Authority tells you that a licence has been surrendered, ask the question. Who knows, you may save yourself a great deal of time and money.
Government slash maximum FOBT stakes from £100 to £2
Following consultation, the Government has announced that it will seek to make changes to reduce the maximum stake for fixed odds betting terminals from £100 to £2, as part of a package of measures to be put before Parliament to tighten up controls around protecting young and vulnerable people.
The secretary of state for DCMS, Matt Hancock, said the government had chosen to “take a stand” against what they saw as a cause of social harm affecting mainly poorer people in society. He went on to say:
“These machines are a social blight and prey on some of the most vulnerable in society, and we are determined to put a stop to it and build a fairer society for all.”
The additional measures that have been proposed include:
- spending limits for individuals gambling online until affordability checks have been undertaken
- a review of the age limit for playing the national lottery, currently 16
- responsible messages to be required throughout gambling advertisements on TV
- a review by Public Health England on the potential health damage caused by gambling
There is currently no official date for when these changes can be expected to go before Parliament, however, there appears to be pressure on the House to timetable the matter during the course of 2019 at the latest.
The accountancy firm KPMG have widely been reported as estimating that the £2 limit would cut revenue for the Treasury by £1.1bn over three years. Whilst the Association of British Bookmakers predict that approximately 4,000 betting shop premises may close resulting in 21,000 redundancies.
Operating licences: Annual Fees Reminder
July sees us issue the bulk of annual fee invoices. Annual fees are to be paid in full in advance of your licence anniversary date. Check your licence for your anniversary date.
Make sure you are in the correct fee category so your invoice is correct, if you think you may be in the wrong fee category we recommend making any variations as soon as possible.
Gambling Commission publishes business plan
The Gambling Commission has set out its strategic priorities in their new business plan, published at the end of April. These are:
- protect the interests of consumers
- prevent harm to consumers and the public
- raise standards in the gambling market
- ·optimise returns to good causes from lotteries
- improve how the GC regulate
The full report can be found here.
Out and about
May's late sunshine has seen a rise in queries and concerns raised about the use of pub gardens. In particular we have seen the usual spate of calls from the responsible authorities in relation to neighbour's complaints about noise. There are two points that arise in almost all situations. The first is in relation to specific breaches of conditions (kids playing ball games or being unsupervised are fairly common) and where it can be demonstrated that there has been a breach, this would constitute a criminal offence. The second, much more difficult area is whether the noise from people outside constitutes a public nuisance. Often these kinds of disputes between neighbours are more likely to be private nuisances than something that should be dealt with under licensing legislation. What is reasonable is in the eye of the beholder. Ensuring that you keep a close eye on customers in your garden can ensure that you are in a position to argue that any noise complained of should not be considered to be anything other than acceptable.