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Local Risk Assessments and Local Area Profiles

The Gambling Commission is currently consulting on the draft 5th Edition of its Guidance to Licensing Authorities: the consultation closes on 22 June 2015. One of the most significant planks of the amendments that will be brought forward in the new Edition will be the introduction of Local Area Profiles, prepared by the authorities themselves, to assess their local environment as a means of “mapping out” local areas of concern surrounding the licensing objectives under the Gambling Act, and the new requirement for operators of land based casinos, bingo halls, betting shops, AGCs and FECs to prepare a Local Risk Assessment whenever they apply for a new gambling premises licence or a variation to an existing licence, or at such other time as the licensing authority may require.

Whilst it is envisaged that, other than at the time of applications, authorities should only require assessments to be submitted when there has been a significant change in local circumstances or at a particular premises that might affect the mitigation of local risk, experts in the sector and amongst local authority licensing teams alike predict that the new requirements will transform the landscape surrounding gambling premises licensing.

The requirement on operators, contained in revisions to the Licence Conditions and Codes of Practice, to prepare Local Risk Assessments, will not apply until 6 April 2016. However, local authorities are already working on their revised Statements of Principles that will take the new measures into account. This is because the new Statements will need to be approved by each authority’s Full Council, which tend to meet only 4 times a year. This in turn means that, in practical terms, the new Statements will need to go before meetings in December if they are to be in place in time.

The Local Area Profile will take account of a wide range of factors, data and information available to local authorities and their partners, such as the police, public health, mental health, housing and education bodies, community welfare groups and safety partnerships and organisations such as Gamcare and local equivalents. They will be aimed at increasing awareness of local risk. An area might be identified as high risk, for example, because of its proximity to a school, youth centre, hostel or rehabilitation centre.

There will be no requirement upon licensing authorities to prepare a Local Area Profile, but the Commission is strongly encouraging authorities along this route and every indication is that the “take up” will be widespread and robust. Where an authority does prepare such a Profile, operators will need to take it into account in preparing their own. Local Risk Assessments, which will be a mandatory requirement.

Local Risk Assessments will be expected to evaluate the local risks to the licensing objectives presented by the provision of gambling facilities at each individual premises, and set out the policies, procedures and control measures that the operator has in place to mitigate those risks.

Local authorities are required to consult upon their Statements of Principles, and the timetable set out above dictates that they will need to issue consultations during the next month or so. Operators should be alive to this, and to the need to have their say on how Local Area Profiles should look.

We can assist our clients by monitoring the release of consultations and in preparing responses, and in drawing up Local Risk Assessments when the new requirement comes into force. For further information, please contact Anna at anna@woodswhur.co.uk.

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Use of Breathalyser Tests in Licensed Premises Grows

Licensing enforcement officers, Police licensing officers and operators will have been following the increased use of breathalysers at licensed premises. The joint scheme between Northamptonshire Police and Pub Watch in Northampton town centre was one of the first pilots of breathalysers to sift entrants in to licensed premises.

In that example, if people were found to be over the limit of 80 micrograms per 100ml of breath (which is more than twice the limit for driving) they may be refused entry.

This scheme was based on a similar scheme that had been carried out in Norwich, where the Police suggested that it had helped to achieve a 32% reduction in violent crime in the town.

However, plans by Birmingham bars and clubs to cut violence by breathalysing customers before they are allowed in to the premises met with a chorus of derision.

Forty one venues signed up to a Police and council backed scheme for Broad Street, Digberth and Hurst Street.

The scheme was overwhelmingly opposed with more than 400 comments on the Birmingham Males Facebook page, with many suggesting that the licensing authorities were treating customers like criminals. The Association of Licensed Multiple Retailers (ALMR) said the following: – “We are concerned at the widespread and indiscriminate use of breathalysers in licensed premises and believe that machines are not an appropriate or effective substitute for trained staff in spotting vulnerable customers or diffusing drunken situations calmly.

In our experience the use of a breathalyser is likely to inflame or incite aggravation. This is supported by large numbers of comments made by consumers in recent trials where requests to breathalyse guests have caused offence, with people feeling they are being treated as criminals, and aggressive behaviour towards our door teams.”

Passing comment after considerable research, the ALMR went on to say, “There is no clear evidence that breathalysers reduce violence or crime and while they may have a role to play in deterring drunkenness, that is the context of policing a town centre, not a hospitality environment. We all have a shared objective of promoting a great safe night out, but this initiative sends all the wrong signals to those guests looking for that, in fact it sends exactly the opposite message and implies that the venue or town centre is a no go zone – that is a retrograde step.”

Notwithstanding the criticism other locations have been pushing ahead with the use of a breathalyser test to allow entry in to premises. We have heard of other tests in Shrewsbury, Torquay and York. We have even heard of situations where operators have been threatened with a review of their premises licence if they do not trial the breathalysers voluntarily.

We would of course not condone such threats being issued by Police licensing teams.

I decided to have a look again at this when it was announced in the press this week that a McDonalds in Cambridge, that opens 24 hours, will start to implement breathalyser tests for customers who want to eat inside the restaurant.

Anyone who blows twice the legal driving limit will be denied entry. It is understood that the Cambridge McDonalds is located close to many bars and clubs making it a hot spot for local students and partygoers. The Police have stated that they want people to enjoy themselves and not have their night ruined. Anyone turned away will be given an information leaflet on the dangers of excessive drinking. There have been criticisms by local people of the scheme suggesting that this is a “flagrant and horrific violation of human rights”. Not to be deterred by the criticism, the Police in Cambridge have persuaded Cambridge United Football Club to become one of the first football clubs in the country to start using breathalysers in an attempt to tackle alcohol related crime and disorder. The scheme is funded by Police and Crime Commissioner, Sir Graham Bright, and provides breathalyser kits to security staff allowing them to test people before entry to the ground.

The breathalysers are not used as a requirement to entry, but rather a tool to support security staff who often become the victims of drunken aggressive behaviour.

“It is hoped the scheme will combat alcohol misuse and subsequent anti-social or criminal incidents.” Sir Graham said: “The trend these days is for people to pre-load with alcohol at home before heading out. The result of this can be that people are very drunk towards the end of the evening, putting themselves and others at risk. I want people to enjoy a night out but to do so responsibly. Increasingly, the Police and Health Service are required to deal with the consequences of excessive drinking and I hope this scheme will reduce the number of people who get in to trouble as a result of their drinking.”

We will continue to monitor this growing trend in relation to the use of breathalysers at licensed premises. There are considerable concerns as to the potential negative impact in relation to their introduction, particularly if operators are being almost forced to use them with the threat of having to defend an expensive review if they don’t.

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All Change, All Change

The first week in April is traditionally a time for the advent of new legislation and this year is no exception, with a host of new measures being ushered in before the prorogation of Parliament. Here are some affecting the trade.

The Deregulation Act received Royal Assent on 26 March. As explained by my colleague Andy in this edition of the Licensing News, it brings about a number of changes to the licensing regime, including increasing the number of Temporary Event Notices permitted per premises from 12 to 15 from 1 January 2016, abolishing the requirement to renew personal licences from 1 April 2015, and dispensing with the need to report lost personal and premises licences to the Police before a replacement is issued from 26 May 2015.

The much-awaited relaxation of the rules surrounding regulated entertainment came into force on 6 April. Unamplified live music does not need to be covered by a licence at any time between 8am and 11pm, and now amplified and recorded music can be played between the same times in alcohol licensed premises without a licence, provided that the audience is no more than 500 strong.

The Act also gives Licensing Authorities the power to declare certain areas, premises or hours where the sale of hot food and drink, which would otherwise require to be licensed as late night refreshment between the hours of 11pm and 5am, to be de-regulated. However these changes will need to be brought about by secondary legislation, so this will fall to the new government – of whatever complexion – to progress.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is now in force and has removed the ‘cap’ on fines that Magistrates’ Courts may hand out in respect of hundreds of offences. This means that a number of offences under the Licensing Act now carry unlimited fines. These include carrying on unlicensed activities (previously capped at £20,000), allowing the sale of alcohol to children (£5,000), persistently selling alcohol to children (£5,000) and contravening a closure order (£20,000).

The Small Business, Enterprise and Employment Act has also received Royal Assent. This commits the next government to deliver the Statutory Code and Adjudicator for pubs by April 2016.

The Deregulation Act introduces a new obligation for regulators to “have regard to the desirability of promoting economic growth”, and to ensure that regulatory action is only taken when necessary and proportionate to do so. It remains to be seen how this curb will operate in practice in the licensing arena.

Finally, The Home Office has published Guidance on how to avoid infringing the ban on selling alcohol at below the cost of duty plus VAT. There is not much here to trouble pubs. Whilst the Guidance helpfully gives duty rates and worked examples of the calculations to be made, the illustration given for pubs is an offer of a table meal with a pint of 4% strength beer included in the price. The total cost must not be below the permitted price of the beer which, at 51p, is unlikely to lead to the re-writing of many menus!