Author: Woods Whur

We would like to take this opportunity to invite you and your staff to attend the BIIAB Award in Responsible Alcohol Retailing training course which is being provided by Innpacked as part of our ongoing strategic relationship.

This is a FREE course which is sponsored by SABMiller and the BIIAB who have formed a partnership to support social responsibility in the retail sale of alcohol. Innpacked and Woods Whur have been selected to deliver this training course to the trade.

We would like to invite you and your fellow colleagues to take part in the opportunity to gain a qualification for FREE!!

This industry standard, nationally recognised BIIAB qualification provides employees with the knowledge to perform in their role responsibly, while affording more protection to employers and their premises licence through their documented due diligence approach.

The course will take place at Woods Whur offices on Friday 4^th March 2016 and if you would like to register please contact info@www.woodswhur.co.uk or innpacked@www.woodswhur.co.uk

Please see below the criteria again for the candidates:

1. Learners must be recruited from the following areas; tenanted/leased pubs, bars and other types of licensed outlets including franchised off-licensed operators.  This programme is not available to staff from managed companies.
2. Learners must be 18 years or older and must have been employed within the licensed retail sector for a minimum of 6 months.

 Please see attached leaflet for more information. ARAR Leaflet

Have you looked at your licence(s) recently? The Licensing Act requires you to keep a full copy at your premises, as well as to display the Summary in a prominent place. Do you know where your licence is? Is it tucked away in a file in the office, or locked away in the safe? And when is the last time you got it out and had a look at it?

I’ve been involved in a due diligence exercise recently, visiting a number of licensed premises and checking for compliance with their licence. This has turned up a number of instances where licence conditions are not being complied with and where the premises’ layout is not as shown on the approved licence plan, which forms part of the licence. All of this can be avoided by giving your licence(s) a periodic “health-check”.

If you have carried out works at premises which change the layout of, for example, the bar, internal walls or exits, you must make sure that you have sought the approval of the Licensing Authority for the new arrangements. If not, you will be trading otherwise than in accordance with your licence, which is an offence carrying a maximum penalty of 6 months’ imprisonment and/or a fine of £20,000. Depending on the nature of the change, your Licensing Authority may accept a minor variation, which should go through within 3 weeks, if there is no impact on the licensing objectives under the Act. Some Licensing Officers may be prepared to “turn a blind eye” and allow you to continue to trade with the new layout while the application is processed.

On the other hand, I have known some to take a hard line, and in one case I dealt with before Christmas, sales could not be made from a new bar until the variation to the plan to reflect its presence had been approved – although customers were allowed to sit and drink in the new area because consumption of alcohol is not a licensable activity. In the run-up to Christmas, with the premises hosting a number of large parties, you can imagine the inconvenience that this caused. It is of course possible to cover yourself in the interim using Temporary Event Notices – assuming you haven’t used up your allocation for the year – but 5 working days’ notice is required as an absolute minimum and no more than 499 persons may be on the premises at any one time when the premises are operating under a TEN.

It is thus essential that if you carry out works or a refurbishment you consider your licence, take a look at the approved plan and assess the impact of the changes. Bear in mind that anything that might affect means of escape is unlikely to be capable of being dealt with as a minor variation because it has a potential impact on public safety. In such a case you will need to proceed with a full variation, advertise the application in the local newspaper and display a blue notice on the premises for 28 days.

You should also be aware that even shifting moveable furniture around, or relocating fire and safety equipment, might result in non-compliance with your licence, unless the plan includes the necessary wording to allow you some flexibility in these respects. We can help you with an appropriate form of words, as part of a licence “health-check”.

Another area that any “health-check” should focus on is the conditions that are imposed on your licence. In some cases the style of an operation evolves over time, such that some conditions are no longer necessary or appropriate. Maybe you have ceased staging events that warrant employing SIA-registered door staff, yet a requirement to do so still features on your licence, for example.

It is essential that you do comply with all of the conditions on your licence because, again, failure to do so means that you are committing the offence of trading otherwise than in accordance with the licence. Another area which sometimes leads to difficulty is conditions that have historically crept on to the licence in error and should never have appeared there in the first place. Tracking back and persuading Licensing Authorities of their error can prove tricky and so it is important to pick up any errors sooner rather than later – another reason to conduct periodic “health-checks”.

If you can’t persuade your Licensing Authority that a condition is mistakenly on your licence, or if you need to have a condition removed for any other reason, you may be able to achieve this via a minor variation application, if the change will not have any adverse impact on the licensing objectives. Failing this, a full variation with a 28-day publication and consultation period will be required.

If you’d like us to conduct a “health-check” of your licence(s), or have any questions or concerns about your obligations, please contact us: one of the team would be happy to help.

In this article Andy Woods reports on what was described as “game changing” research into area vulnerability to gambling-related harm, as the research was released by Westminster and Manchester Councils on 9 February 2016 and will be adopted into their policies to coincide with the requirements for individual premises risk assessments for gambling premises on 6 April 2016.

On 9 February 2016 I attended the release and publication of “research exploring areas of vulnerability to gambling related harm”. This research was described at the launch by Westminster Council as a “game changer” for local authorities and has since been described by Westminster as a “major step forward in Westminster and Manchester City Councils’ aim to identify at risk groups , their location and density within our cities”. The research was undertaken by Geo Futures and the reports will be available on Manchester and Westminster’s website, as will all of the maps referred to.  There will also be a link to a map tool and it is hoped that care providers “will be able to use the vulnerability index to consider targeted intervention and support for the more at risk areas of both cities”.  Westminster and Manchester City Councils’ Statement of Licensing Principles for Gambling will be revised to include these results.

So what exactly does this all mean? I am sure that there will be two fairly distinct opinions as to what the practical impact of this research will be.  There is no doubt that the research will play a significant part in any applications for gambling premises licences made in Westminster or Manchester and I have no doubt that other local authorities will soon follow a similar approach.  Westminster City Council made it clear that it was felt by them that there was no flexibility under the Gambling Act 2005 and that this research will impact on how Westminster City Council interpret the legislation.   The research was described as a “missing link” and that it would “make a difference to decisions”.  Westminster City Council stressed of course that they are not per se anti-gambling.

Heather Wardle presented the bulk of the research and explained that it is in effect a harm risk index. The work has been undertaken so as to coincide with the requirement under the LCCP for each gambling premises  to undertake its own local area risk assessment as from 6 April 2016, and Heather expressed the hope that gambling operators would be able to use the information obtained to undertake their profiles.  It was explained that Geo Futures has created spatial tools and maps to map out where potentially people are at risk of harm and it was stressed by Heather Wardle that the work relates to potential risk and probability of events happening and the likely impact of events as opposed to actual harm to any specific group.  Research was undertaken into demographics, socio economic groups, groups who were able to exercise proper judgement and other groups including problem gamblers.  The groups were split up further to include specific groups such as the unemployed, abuse sufferers and the homeless and it was submitted that there was evidence these groups are at risk.

It was confirmed there was no local level data specific to any group stressing that a specific group in a specific area had been caused harm by any gambling issues and that the mapping which had been carried out was independent of the distribution of gambling premises around any areas.

Geo Futures looked in particular at unemployed deprived areas, location of schools and churches, location of homeless shelters, location of clinics and doctors’ surgeries which may deal with those exhibiting problem gambling and as a result of all of this research produced hotspots in Manchester and Westminster in which the risk would be deemed to be very high. It was stressed that it did not mean that in other areas which were not a hot spot or even a mild spot there was no risk, but  that the colouring of the maps and the darkness of the colour reflected the areas of a greater risk.

This will undoubtedly impact on any applications for gambling premises licences made in Manchester or Westminster after April 2016. I agree with Heather that the information will help gambling operators in undertaking local risk assessments although there was, as far as I am concerned, one significant piece of the jigsaw which was not discussed as this research was released and that piece is that most gambling operators are fully aware of the location of all churches, schools, homeless shelters and doctors surgeries which are near gambling premises and indeed in most applications I have made in the last twelve months I have included a risk assessment which refers to localised potential issues.

There were not many members of the trade at the research launch and there may have been lots of challenges to the research which has been undertaken if there had been, but the research was presented as not highlighting that harm had taken place but that in certain areas there was a greater potential risk of harm.  It will be interesting to see how Manchester and Westminster deal with applications in these areas.  I think I made my last application for a betting office in China Town, which to nobody’s surprise was included as a hot spot in the area.  My application included a fairly lengthy risk assessment and maps which  indicated where all of the schools, churches etc. were located and then referred to our policies which would promote the licensing objectives and protect the vulnerable.  If I was to make an application in China Town tomorrow I would do exactly the same thing and refer to the same documents.  The burning question is whether Westminster or Manchester will say “you have identified all the risks and your policies deal with all of the risks and therefore under the Gambling Act 2005 and the aim to permit principle we are granting the application” or whether the decision will be “we know that you have identified the risks and have policies in place but this is a hotspot area of potential risk and therefore we do not think the application will be granted”.

Only time will tell but it will be interesting to see whether other local authorities follow suit and how Westminster and Manchester do actually approach future applications.

In this article Andy Woods reports that the Gambling Commission has won its appeal in the Upper Tribunal, which has ruled that the Gambling Commission acted within its powers when refusing Greene King a bingo operating licence.

I have written a number of articles in the last two or three years about Bingo Operating Licences and indeed we have successfully applied for Bingo Operating Licences to the Gambling Commission within the last twelve months. Greene King, a pub operator, applied for a Bingo Operating Licence to the Gambling Commission to enable them to provide bingo facilities and Category B gaming machines in a pub environment.  Greene King only applied for a Category A Operating Licence which would only permit a small number of premises to be able to operate with bingo, and the application was refused by the Gambling Commission.  Greene King appealed against the Gambling Commission decision and was successful in its appeal but subsequently the Gambling Commission appealed to the Upper Tribunal and after waiting several months for the  decision, it was announced on 10 February 2016 that the Upper Tribunal had found in favour of the Gambling Commission and had in particular found that it acted within its powers when refusing Greene King a Bingo Operating Licence to provide promotional bingo in its pubs.

A full judgment has only just been issued and I will report in more detail on the full judgment in the next article but the judge at the Upper Tribunal found that the Gambling Commission had the authority to refuse an application if it considered that the granting of the application would not be reasonably consistent with the licensing objectives.

I have to say I am disappointed with what has been decided because I was expecting that Upper Tribunal to rule on whether the actual decision not to grant Greene King its licence was correct or not, based on all the facts and evidence before the Upper Tribunal. It appears that the Upper Tribunal has simply ruled that the Gambling Commission has the authority to refuse applications if it considers that those applications would not be consistent with the licensing objectives.  We all knew that before this appeal took place!

The case is now being sent back to the First Tier Tribunal for reconsideration and we will wait to see what progress is made at that stage. I will, however, do a full report of the judgment in the next article.

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In this article Andrew Woods reports that there have been changes to a number of Temporary Event Notices permitted as from 1 January 2016.

A Temporary Event Notice (TEN) is required if anyone wants to carry out a licensable activity on unlicensed premises in England or Wales. This applies equally to premises which do not have a licence or to premises which have a licence permitting licensable activities until a certain time and where the premises licence holder wishes to carry out a licensable activity after the terminal hour stipulated on the licence. Licensable activities include; selling alcohol, serving alcohol to members of a private club, providing entertainment e.g. music, dancing or indoor sporting events and serving hot food or drink between 23:00 and 05:00. A TEN is also required if a particular licensable activity is not included in the terms of an existing licence.

The number of TENS that can be applied for by a single premises increased as from 1 January 2016 to fifteen per year over twenty one days. In respect of non licensed premises a person can get up to five TENs a year. If the applicant already has a personal licence to sell alcohol then that person can be given up to fifty TENs per year. There must be at least a twenty four hour gap between TENs and there must be fewer than five hundred people at all times including staff running the event. A TEN cannot last for longer than a hundred and sixty eight hours (seven days) and the applicant must be at least eighteen.

Any application for a TEN must be submitted to the local authority and police at least ten working days before the event and there is a fee of £21.00. The date of submitting the TEN and the day of the event are not included in the total number of working days before the event. Any application for a TEN must be by an individual. It is now possible to apply for a “late TEN” and the latest you can apply for a “late TEN” is five working days before the event. If you don’t hold a personal licence you can serve up two late TENs per year. If you do hold a personal licence the limit is 10. Late TENs count towards the total number of permitted TENs.

A TEN cannot be refused unless the police or environmental health object to it and they must do so within three working days of receiving it. They can only object if they think the event could lead to crime and disorder, cause the public nuisance, be a threat to public safety or put children at risk of harm. If there is an objection the council’s licensing committee will hold a meeting no later than twenty four hours before the event and at the hearing the committee will either approve, add conditions or reject the notice.

If the police or environmental health object to a late TEN then the application is refused and the notice is not valid and the event cannot be held.

There is a right of appeal against any local committees decision to the local magistrates’ court but this must be done within twenty one days of the decision and at least five working days before the date of your event. In practice there is often very little time for this to happen.

The Temporary Event Notice must be kept in a safe place where the event is held and a copy of the notice must be displayed when the event is taking place.

Leeds were one of the first Authorities to put a cumulative impact policy into their statement of licensing policy. Initially this was just for the City Centre but we then saw various other suburban areas have policies of their own. These areas were assessed as having come under stress from the number of alcohol outlets and robust policies were developed for these areas outside of the City Centre after the full and proper consultation exercises were undertaken.

It is the City Centre policy which is the most unusual. This has changed throughout time to its current iteration. What makes the CIP even more interesting is that the statement of licensing policy only needs to be reviewed every 5 years and so Leeds City Council have decided to bring out an annual update for the City Centre CIP as the pace of change in the licensing landscape is huge, with major developments being undertaken and the City Centre changing substantially.

The new policy can be found via this link:

http://www.leeds.gov.uk/docs/City%20Centre%20CIP%20Guidance%202016.pdf

It makes interesting reading. The City Centre is categorised into three colour-coded zones, red, amber and green.

RED

The policy states that the council will seek to refuse all applications in these red areas on the basis that the impact on the licensing objectives is at such a level that the area cannot support any more premises opening or extending their hours and that the council will only grant applications in the red zone in exceptional cases, and those exceptional cases would be where the premises can demonstrate that they will not impact on the issues already being experienced in the area.

AMBER

Here, the policy reads as follows: “The amber area is an area which is of concern based upon an analysis of issues within the night time economy that are relevant to the licensing objectives, and the council will expect applicants to offer additional measures tailored to the problems in that area.”

GREEN

This is what the policy says about the green area: “All other areas within the city centre CIP will be designated green areas where good quality applications will be generally be more acceptable even though the area is a CIP area.”

In summary the policy states:

“It is the council’s policy, on receipt of relevant representations, to

• refuse new and variation applications in the red area

• to seek additional measures for new and variation applications in the amber area

• To seek good quality applications for application in the green area.

This applies to alcohol led premises such as bars, pubs and nightclubs, and for premises seeking late night refreshment such as takeaways and late opening restaurants.”

It is an interesting way forward, another way would to have been to take everything other than the red zone out of the Cumulative Impact Policy.

We receive a huge amount of instructions to look at new sites/extension to licences for sites/removal of conditions within the CIP and regularly advise clients not to apply, if we cant see a genuine exception to the policy in what the applicant is looking for. However, we have also advised successfully on a number of applications in all areas of the City Centre. The policy mentions an application in the red zone. “A third application for the grant of a new premises licence proposed an early closing time, full food menu and an emphasis on music concurrent with their retail business. This was/was not considered an exceptional application and was granted/refused. (the outcome of this application will be updated after the hearing).” I am pleased to report that we were successful with this application which shows that the policy will not look to supress genuine applications which are exceptional and will not add to the issues of cumulative impact of licensed premises.

 

As previously reported, the date upon which the European Online Dispute Resolution (“ODR”) forum will become available via a portal has slipped from 9 December to 15 February. From that date, all businesses trading online – including remote gambling operators and those who install gambling software using remote communication – must signpost customers to the forum by providing a link to the ODR platform on their website, informing them of its existence and of the possibility of using it to resolve disputes. This information must also be contained in the business’s terms and conditions.

The relevant Guidance, issued by the Department for Business, Industry and Skills (“BIS”), makes it clear, however,  that it will remain possible for businesses to refer customers to their existing approved Alternative Dispute Resolution (“ADR”) provider if it is in the same jurisdiction as the customer, if they consider that this is a simpler route to attempt to settle the dispute.

It has now been confirmed that providing an online contact form on websites that does not show the email address will not be sufficient to comply with the requirements. In addition, if an offer of a product or service is made to a customer by email, that email must contain a link to the ODR platform. Further, online marketplaces, which may not sell products direct to customers but instead facilitate transactions between traders and consumers, must also provide the link. Included within this category are online auction websites and online retailers that allow third-party sellers to trade through their website, and may well include, for example, External Lottery Managers whose websites allow customers to enter the lotteries of their commercial partners.

The Gambling Commission has suggested that, in order to comply with the requirement to make the information on ODR easily accessible to customers, operators include it alongside their existing complaints procedure information on their websites. It also suggests that, if they wish to use their approved ADR provider to handle ODR-filed disputes, they include contact information for that ADR provider.

All approved ADR providers are capable of handling disputes filed through the ODR platform. This means that, when a customer files a dispute in this way, the platform will identify a suitable ADR provider. ADR will then proceed, provided the customer and provider both agree. ADR providers can inly refuse to deal with a complaint in a limited set of circumstances, such as in the case of a frivolous or vexatious claim, or one that falls outside the minimum and maximum values of claim that the provider handles.

Failure to comply with the new requirements may lead to Trading Standards applying for a court order to force the operator to comply. If there is still non-compliance the maximum penalty is an unlimited fine and/or two years’ imprisonment.

BIS has said that it expects the ODR platform to be of particular benefit in cross-border cases, because it will offer a translation facility. It has published updated Guidance as an Annex to the existing detailed ADR Guidance for Businesses previously published on the Chartered Trading Standards Institute’s Business Companion website. A link to the updated Guidance is here: https://www.businesscompanion.info/en/quick-guides/business-information-other/alternative-dispute-resolution

BIS anticipates that it will further update the Guidance once it has more details on how the ODR platform will work in practice, nearer to the time of its launch, and we will keep you updated through future editions of this E-News. In the meantime a link has been provided to a provisional ODR page: http://ec.europa.eu/consumers/odr/http://ec.europa.eu/consumers/odr/   Although this page does not allow traders or consumers access yet, it does provide an opportunity to operators to prepare their websites in advance of the ‘go live’ date of 15 February.

 

In a recent piece for, and first published in, the World Online Gambling Law Report, Anna Mathias examines three Advertising Standards Authority rulings against advertisements by betting companies on Twitter.  Click on the link to view the article.

Have you ever thought why some customers are friendly, some are unfriendly, some are interesting and some are exceptionally dull. Well the answer is they are all complex people, they live with all of the pressures of modern life, family, debt, work or the lack of it and they all have their good days and of course their bad days. As a licensed retailer it is our job to ensure that whatever mood our customers arrive in, they leave feeling that they have enjoyed their visit and want to return. In the words of the theme from Cheers “Sometimes you want to go, Where everybody knows your name, And they’re always glad you came; You want to be where you can see, Our troubles are all the same”. A little corny you may think but in essence this is what people young and old are looking for, to be made welcome and have a great social experience. Invariably that is what we all set out to provide for our guests but how and why does it occasionally go wrong? And what is the best way to deal with customers expectations not being met when it all goes a little “pear shaped”?

Thoughtfully trained staff are the key to the customers experience and whilst most of us are aware of this, it is surprising how many staff are either so over trained in the products being sold that they turn into robots who seem to view guests as cattle or so under trained that they have to make it up as they go along. I am sure we all know venues where these strategies exist and still seem to make money but neither method is of any help when things go wrong and customers get annoyed or angry.

A good staff training strategy should start and end with the customer as they are the reason the industry exists and without them we go bust. Staff need to be trained to be proactive in service delivery from the moment the customer arrives using such antiquated phrases as “hello how are you” , “I’ll be with you in one moment” and the use of a smile never goes a miss either.

I am obviously over simplifying customer service but these little things make all the difference to being able to deal with people, if at some point later in their visit the customer is unhappy about something and is looking to share their opinion. They are far less likely to be aggressive about their situation if they have been made to feel welcome when they arrived and have been treated as a valued customer by the happy, courteous staff. Not rocket science I agree but I am always amazed as to why staff who have not exchanged a word with a customer up until they have to deal with a complaint expect anything but antipathy from the customer.

Over the past 12 years Innpacked has delivered thousands of qualifications to the licensed trade but in my humble opinion the most valuable course we deliver to staff is our Conflict Management course. At the mention of Conflict Management most people seem to think it will involve showing staff how to throw out trouble makers using secret body pressure points or disarming an angry stag party with only a banana for protection. This could not be further from the truth! Conflict management is about being proactive and aware of customers and how they are enjoying their evening. It’s about ensuring that conflict never takes place by dealing with issues long before they start and using great customer care as a weapon. We deliver our conflict management course in conjunction with the BIIAB Award for Responsible Alcohol Retail in a one day training package which allows us to make conflict management relevant to serving staff.

If you would like to discuss this course or any of the many other training packages that Innpacked deliver please contact me Ian Crockard on 08000 786 056
Please either click on the following link to see their APLH courses:

http://www.innpacked.com/course/aplh/

or for the whole suit of courses on:

http://www.innpacked.com/courses/

or email us direct on:

woodswhur@innpacked.com