Category: Alcohol

One of the new areas that will be covered in the 4^th edition of Manchester on Alcohol and Entertainment Licensing Law when it is published later this year –the book is currently at proof-reading stage, after which it will be ready to go to the printers – is changes made to the Licensing Act 2003 (2003 Act) by provisions in the Immigration Act 2016 (2016 Act) and powers contained in the 2016 Act that might affect premises having a premises licence or other authorisation under the 2003 Act. The latter includes a power in s 38 and Sched 6 for immigration officers to issue an illegal working closure notice (IWCN) in respect of any premises where an employer operating at the premises is employing an illegal worker and there has been a previous breach of illegal working legislation. The IWCN prohibits, for a period specified in the notice, access to the premises and paid or voluntary work being performed on the premises unless in either instance there is written authorisation from an immigration officer. The maximum period is normally 24 hours, although it can be 48 hours if the IWCN is issued by an immigration officer of at least the rank of immigration inspector. Paragraph 2(2)–(5) of Sched 6 provides:

(2) The maximum period that may be specified in an illegal working closure notice is 24 hours unless sub-paragraph (3) applies.
(3) The maximum period is 48 hours if the notice is issued by an immigration officer of at least the rank of immigration inspector.
(4) In calculating when the period of 48 hours ends, Christmas Day is to be disregarded.
(5) The period specified in an illegal working closure notice to which subparagraph (3) does not apply may be extended by up to 24 hours if an extension notice is issued by an officer of at least the rank of immigration inspector.

There is an element of uncertainty here in respect of the extent to which Christmas Day is to be disregarded and the following section is what the 4^th edition will say on this matter.

It is clear from para 2(4) that Christmas Day is to be disregarded when calculating the

48 hour period mentioned in para 2(3) and thus an IWCN issued on the day before

Christmas might extend through Christmas Day and Boxing Day without exceeding

the 48 hour period. Less clear is whether Christmas Day is to be disregarded when an

extension notice is issued extending the period of up to 24 hours by a further period

of up to 24 hours (and the position is the same in respect of closure notices under s 76

of the ASBCPA 2014 – see 11.14.4 above). One view is that it ought not to be disregarded

because, although the period here might be 48 hours, the reference in para 2(4)

to disregarding Christmas Day seems to refer to the 48 hour period mentioned in para

2(3) i.e. an IWCN issued in the first instance for a period of up to 48 hours. This might

be reinforced by the fact that the provision in para 2(4) on disregarding Christmas day

precedes any reference to extending the period of up to 24 hours by a further period

of up to 24 hours, since this provision is contained in a later subparagraph, para 2(5).

On this view, focusing on the wording of para 2, Christmas Day will not be disregarded

but will be taken into account when an IWCN is issued for up to 24 hours on

the day before Christmas and the period is then subsequently extended. Another

view, based on a purposive interpretation of para 2(4), is that if Parliament intended

Christmas Day is to be disregarded when calculating a continuous 48 hour period (the

period specified in para 2(3)) it might reasonably be taken to have intended that it

should also be disregarded when calculating a cumulative 48 hour period (the period

specified in para 2(5)). The period is essentially the same in each instance and if

Christmas Day is to be disregarded in one instance it is difficult to see why it should

not be disregarded in the other. That said, it seems that Christmas Day is not to be

wholly disregarded, since there is no exclusion in para 2 of Christmas Day in respect

of an IWCN issued for a period of up to 24 hours. Such an IWCN might therefore

encompass part or all of Christmas Day, notwithstanding that the specimen IWCN in

Annex B of the IW Guidance appears to suggest to the contrary (‘This notice shall

cease to have effect immediately before [insert time 24 or 48 hours from time of issue

excluding Christmas Day] on [insert date] unless an extension notice is issued or the

court orders that it is to continue in force’). Although the two competing views seem

to be finely balanced and it is difficult to state a ‘better view’, it is submitted that the

balance is marginally tipped in favour of Christmas Day being disregarded under

para 2(4) only in respect of an IWCN issued in the first instance for a period of up to

48 hours. This view seems to accord with the meaning of ‘the period of 48 hours’ in

para 2(4) when taken in the context of para 2 as a whole and with Parliament not

intending, on the wording of para 2, that Christmas Day is to be disregarded in all

circumstances.

As you can see from the second sentence in the text above, the same point arises in respect of closure notices issued under s 76 of the Anti-Social Behaviour, Crime and Policing Act 2014 (ASBCPA 2014), which have replaced the (now repealed) closure power provisions for identified premises that were contained in s 161-166 of the 2003 Act. This reflects the fact that the IWCN provisions in the 2016 Act were closely modelled on the closure notice provisions in the ASBCPA 2014 and, in consequence, the uncertainty in respect of Christmas Day is not confined to the ASBCPA 2014 but also extends to the 2016 Act!

© Colin Manchester

As I am writing this article my partner Andy Woods is in an Interim Steps Hearing in London for another Summary Review. One thing is for certain: the regulatory impact on the leisure industry does not look to be slowing today as we go forward into 2017, whatever the economic climate and changes to legislation will bring.

There are some key changes which will have an impact on the leisure industry this year, although the full extent and timing of the changes are still up in the air.

Towards the end of 2016, the House of Lords Select Committee on the Licensing Act 2003 called for evidence from stake holders. We are aware that a significant and wide range of interested parties from trade bodies, experts from the licensing world, operators and also the legal profession gave significant amounts of evidence to the Select Committee. The Committee continues to look at the data that it has received, and is due to report its findings by 23 March 2017. It will, of course, be interesting to see what the report contains, and whether Government has any appetite to look to change the overarching statutory framework for licensed premises. The Government is bound to have a huge draw on its time with Brexit this year, and it may well be that, whatever the House of Lords says, the Government may not have the time or inclination to look at wholesale changes, if any are recommended by the select committee.

We could well see revised Section 182 Guidance this year, which is long overdue. There has been considerable tinkering around with the Section 182 Guidance document over a number of years, and this is the longest period since the Act came in force where there have been no changes to the Statutory Guidance.
Many commentators have already looked at the potential impact of the changes to rateable values of premises. The Government’s valuation office issued a new draft rateable value scheme for non-domestic properties in 2016 and we expect to see the final confirmed rates at some stage in 2017. This obviously has an impact on the Licensing Act 2003 fees and the late night levy (if there is one in place). The ALMR have written extensively on how this could have a negative impact on the leisure industry and we await to see what will happen.

We are also waiting to see when the amendments to the Policing and Crime Act will become effective, and how they will impact on key sections of enforcement relating to problem premises.

Last year was particularly busy for new applications and the first week of this year suggests that 2017 will be equally as busy. We have started the year with a significant number of enquiries for new licences for casual dining and late night venues. There does not seem to be any lessening of appetite for new entrants into the market in key commercial centres and we have already received new instructions for London, Leeds, Manchester and Sheffield, which all look exciting.

We are looking ahead to how things may change in the gambling sector. The Department of Culture, Media and Sport is currently reviewing gaming machines and social responsibility requirements. The DCMS is reviewing the number and location of permitted gaming machines in all licensed premises and there is still a call to reduce the suggested impact of fixed odds betting terminals. We will of course report on the DCMS findings as soon as we see them. We are looking forward to dealing with all of the changes and challenges ahead in 2017.

We were exceptionally pleased with the attendance at our Gambling Act and Compliance seminar at the Hippodrome Casino on the 6th of June. As a result, we are going to hold two Licensing Act seminars in late spring, dates to be announced shortly, one of these will be in central London and one will be in Leeds. We are currently finalising the speaker line-up and details of the areas we will cover.
In addition I met with Colin Manchester yesterday and we are delighted that we will be publishing the latest edition of Manchester on Alcohol and Entertainment Licensing Law. The new edition will hopefully be available for sale in the early summer. We are holding this back at this stage to ensure that everything will be up to date and that we will be able to include the imminent changes within the legislation.

Andy and I, on behalf of Woods Whur, would like to wish all of our clients and those who read these articles a successful and safe 2017.

After sitting in the applicant’s chair for eleven years for the Leeds Licensing Sub-Committee I sat in the objectors chair for the first time ever on 29 November 2016.

I was representing objectors to the application for a premises licence at the former Elinor Lupton Centre Headingley Lane in Leeds by JD Wetherspoons.

There were a number of residential and business objectors to the application but no valid objections persisted by the responsible authorities.

Wetherspoons made their application for premises which they suggested could hold up to 500 people – the premises falling in the Cumulative Impact Policy Area for Headingley.

Hearing evidence from myself, residents and ward councillors the Licensing Sub-Committee took a week to release their decision which we received on Friday 9 December 2016. They formed the view that “The application would be likely to add to the cumulative impact on the crime and disorder and public nuisance objectives. The premises would have a large capacity and, on the applicant’s own case, would be attractive to a broad customer base.”

The committee, in their reasons, went on to say, “There was absolutely no criticism from the committee in respect of the business aims or strategy of the enterprise. Irrespective of the steps taken by the operator to control or moderate the behaviour of customers, the committee considered that there would be an increased impact on public nuisance and crime and disorder as a consequence of the numbers of people who would be attracted to the area – whether taking part in the Otley Run or otherwise – and subsequently dispersed, including via the surrounding residential areas, at least some of whom would in all probability be intoxicated.”

In refusing the application the committee said that, in their view, there was an absence of measures that it considered as demonstrating that there would be no additional impact. The committee in ultimately refusing the application said “The committee reminded itself that the councils policy is just that – a policy – and that each case must be considered on it’s particular circumstances and with an open mind. However, despite good intentions of this well established operator, the committee were sympathetic to the concerns of the local residents about such a large premises obtaining a licence and the impact it would have on this residential area.”

On the evidence that was before the committee I am certain that this was a correct decision and it will be interesting now to see whether Wetherspoons decide to the appeal the decision as there are robust reasons in the notice of determination that would be considerably difficult to overturn on appeal.

It still surprises me that we often get calls from some clients asking us fairly basic questions. Who is the designated premises supervisor at these premises? What time can I operate until on New Years Eve? The police tell me I’ve got a certain condition on my licence Is this correct?

It is easy for an operator to become wrapped up in running the business and doing the day to day tasks for them sometimes to forget to take a step back and ensure that their house is in order. Christmas and New Year are always an exciting time for the trade with business opportunities at their best and customers who generally want to have a good time. It is reported that 400 million pints will be drunk in pubs in December and this does not include cocktails, wine and other drinks.

I think the start of November is a great time to take stock of licensing matters and to ensure that your licensing file is in order. I would always task one of the management team to do a presentation to all staff on the premises licence, conditions and undertakings, licensing objectives and other general responsibilities. Whilst Christmas and New Year can be a profitable time for the industry is also a time when resources can be stretched and some customers may want to partake in the festivities more than usual. I would draw up a list of matters to check and go through this with the whole team to ensure that everybody buys in to a general commitment to promote the licensing objectives and comply with conditions on the premises licence. Each list may be different but examples of matters which I would include in the list are as follows:

• Have all Temporary Event Notices been applied for the Christmas and New Year period?
• Have all risk assessments been undertaken for temporary events?
• Do we actually know what sort of party or evening we are expecting at temporary events which are booked by private individuals?
• Are all risk assessments generally up to date?
• Have health and safety and fire checks been undertaken?
• Are the management team fully aware of the conditions on the licence?
• Are the management team fully aware of the operational hours on the licence in particular for Christmas and New Year?
• Who is responsible for social media?
• Is the social media message the message that the management team want to send out in to the public forum?
• Are any special nights involving pub games legal?
• Are all staff fully aware of the mandatory licensing conditions?
• Are staff aware of the duty not to sell to customers who appear to be intoxicated?
• Have additional staff been obtained for the exceptionally busy nights?
• Will the requisite number of door staff be available?
• Are training records up to date?
• Is it a time to undertake some refresher training?
• Have a meeting with the local police and see if there are any local initiatives.

The above list is of course not exhaustive. Christmas and New Year will be a fantastic time but it is very important to ensure that all folders and risk assessments are up to date and that staff are fully aware of their obligations to the general public during the Christmas period.

I suppose that one of the more interesting aspects of working with the Licensing Act 2003 is that we regularly get involved in cases in which there is a disagreement over the interpretation of the Licensing Act 2003. This also just goes to show that the best way to fully understand the Act is to be involved in the legislation on a daily basis and we are certainly fortunate to be in that position. We regularly get telephone calls from clients and Local Authority officers alike asking for our interpretation of various sections of the legislation which are not commonly used and which are the subject of a debate.

I don’t think that I personally have been involved in a contested Temporary Event Notice (TEN) for a few years. I have been involved in lots of discussions with clients and Local Authorities with regard to applications for TENs. We submit a large number of TENs in Westminster and work closely with Westminster Police and Westminster Licensing Department on these applications. The police will regularly ask us for a “last entry time” or for confirmation that all existing conditions on the licence will be adhered to with the TEN but very rarely do we actually go to a hearing for a contested TEN.

In one recent case that I was involved in the police (and I will not name the premises or the Local Authority area) visited some premises during a TEN when the TEN had been applied for to start prior to the end of permitted hours on the Premises Licence. If a terminal hour for alcohol is 11pm on the Premises Licence the TEN had been applied for from 8pm to 1am giving the applicant a two hour extension but also the ability to operate under the TEN between 8pm and 11pm. This was for a particular event and the TEN had been applied for with the intention of the existing conditions on the Premises Licence not being complied with during that period from 8pm to 11pm. The police were adamant that as the premises were trading at 8pm then the existing conditions should have been complied with but I am afraid that this is not correct. The premises were operating not under the Premises Licence but under the Temporary Event Licence. The Temporary Event Licence was being displayed on the premises and as the police had not objected to the TEN and no conditions had been placed on the TEN then the premises could operate under the TEN without conditions at all.

We did not submit the aforementioned application and it may be that if we had submitted the application we would have specifically noted on the TEN that the existing conditions on the Premises Licence would not be complied with during this period of time and we would have set out the reasons why this was the case. The applicant had applied in person and not done this but nor had the police raised the question and this just goes to show how important it is for the police and Local Authorities to check that their understanding of the TEN applied for is correct.

In a second case I have recently been involved with the police did object to a TEN and the matter did proceed to a hearing before the Licensing Committee. During the hearing there were submissions as to various conditions which should be considered if the Licensing Authority were prepared to grant the application. There is then a debate as to what conditions the Licensing Authority can impose and this dealt with very clearly in the guidance issued under Section 182 of the Licensing Act 2003 at paragraph 7.37.

The 2003 Act provides that only the Licensing Authority can impose conditions to a TEN from the existing conditions on the Premises Licence and the Licensing Authority can only do so:

• If the police or EHA have objected to the TEN;
• If that objection has not been withdrawn;
• If there is a licence or certificate in relation to at least part of the premises in respect of which the TEN is given; and
• If the Licensing Authority considers it appropriate for the promotion of the licensing objectives to impose one or more conditions.In this particular case the Licensing Authority did impose all existing conditions on the Premises Licence onto the TEN. The applicant had offered one or two other measures during the course of the hearing and the Licensing Authority and their decision noted this and made it quite clear that they expected the applicant to comply with this additional measures as well even though they were not conditions on the TEN. There is no doubt that the applicant will have to comply with these additional measures or else there is a significant risk of future action being taken against the premises if incidents occurred on the evening of the TEN and the applicant had not been complying with the measures that were promised to the Licensing Committee.
• The decision is one for the Licensing Authority alone regardless of the premises users views or willingness to accept conditions.

The Licensing Authority is not able to impose conditions on the TEN which are not conditions on the existing Premises Licence.

I was asked to advise in a case this week which brought up a much-discussed topic. Is there always a need to jump to formal proceedings when problems occur at a premises or can voluntary action by the operator save a huge amount of time and money?

The main issue was the violent disorder that had taken place at a pub in London where there had been issues on football match days. The specific facts of the particular incident were relayed to me and I was asked to advise whether I thought there was sufficient evidence to bring about a summary review of the premises licence or whether it should be a standard review.

When assessing the track record of the premises and the level of the issues which had brought about the concern, I advised that I did not think a summary review was an appropriate course of action. No one had been arrested and charged as a result of the public disorder and, whilst the flash point had happened within the public house, the main disorder had happened away from the premises. In my view, and this was reflected in my advice, there were insufficient grounds to suggest that the premises were “associated with serious crime or disorder”.

There was clearly evidence of live management issues at the premises and I advised in the circumstances that a standard review would be appropriate to deal with those issues, if the operator was not prepared to make changes voluntarily.

A meeting took place between the relevant police licensing department and the operator and as a result of that meeting, the operator agreed to make a minor variation to the premises licence to change management style and have this recorded on the licence with additional conditions. This was clearly targeted at the issues which had brought about the police concerns in the first place.

In the circumstances the police accepted that there was no need therefore to go to formal review proceedings and the operator moved to lodging the minor variation application immediately and volunteered to make changes prior to those new conditions being endorsed on their licence.

What a fantastically enlightened way of dealing with issues. This has removed the need for detailed and expensive proceedings before the licensing authority which would probably have achieved exactly the same result, but some six weeks further down the line.

It just goes to show that with a positive will on both sides there are real opportunities to solving these issues without the knee-jerk decision to go direct to formal proceedings.

The sum total of work involved for all parties was half a day rather than all of the work and expense that would have been needed to bring about formal review proceedings.

Hopefully this enlightened approach taken by the police and a responsible operator in these circumstances can ripple around to other areas where voluntary interaction can be used to save significant man power and cost.

Many of you will have noticed reports in the press that the sale of alcohol at airports and on planes is currently being reviewed by Lord Ahmad, the newly appointed Aviation Minister.

I enjoy the first G&T of the holiday at the airport, before boarding – who doesn’t? It helps to ease the process of passage through an airport, which, let’s face it, can be something of an ordeal. The question now, though, is whether the irresponsible few are going to spoil things for the rest of us.

Lord Ahmad has said that “I don’t think that we want to kill merriment altogether”, which is reassuring to a degree, but it will be interesting to see what the outcome of his review is, especially given statements by the Government even relatively recently that it had no specific plans to address the issue of alcohol-related disorder on flights.

Police statistics obtained by the Press Association in response to a Freedom of Information Act request disclose that at least 442 people have been held on suspicion of being drunk on an aircraft or at an airport in the last two years. In one recent incident, a female passenger punched an Easyjet pilot in the face, and a Ryanair flight from Luton to Bratislava had to be diverted to Berlin following a mid-air fracas involving members of a stag party.

However, when one considers that over 251 million passengers passed through UK airports in 2015 and there were over 2.1 million flights, the conclusion that such incidents are very rare indeed is inescapable.

In legal terms, the Licensing Act 2003 does not apply to alcohol sales on aircraft or airside at an airport (once through check in, passport control and security). This means that there is no need for a premises licence, with the attendant restrictions on operating hours or, indeed, age for those purchasing alcohol. This means that, technically speaking, an 11 year old could purchase a pint at 5 in the morning.

It would be open to Lord Ahmad to change this position in relation to sales of alcohol at airports because the relevant section of the Act, s173, gives the Secretary of State a reserved power to remove the exemption that applies to them. However an amendment to the primary legislation would be required to bring about a need for a licence for sales of alcohol on aircraft themselves.

Of course, the fact that the Licensing Act does not apply to these sales of alcohol does not mean that they are taking place without any controls whatsoever. If that were the case, then the number of incidents would doubtless be a lot higher. Airside operators and airlines alike have their own policies and procedures in place to ensure that alcohol is sold responsibly, and certainly would not want to jeopardize their relationship with airport operators such as Heathrow Airport Holdings, formerly BAA. I have seen age verification being carried out at an airside bar and of course those operators will be implementing Challenge 21 or 25 policies in line with their internal procedures for sites elsewhere in their estate.

The Airport Operators Association has recently published the UK Aviation Industry Code of Practice on Disruptive Passengers, in conjunction with UK Airport Police Commanders and organisations such as the Association of Licensed Multiple Retailers. Signatories to the Code participate voluntarily. The Code emphasises three core principles: passengers are responsible for their own behaviour, disruptive behaviour cannot and will not be tolerated, and reducing disruptive behaviour is a shared responsibility of all partners on the ground and in the air. However, it also says that, whilst alcohol consumption is a factor contributing to disruptive behaviour, it is not the only factor.

The Code requires signatories to train their staff to ensure that alcohol is sold responsibly, and airports to ensure that their bars, lounges and restaurants implement best practice, including establishing Best Bar None or equivalent schemes. The Code prohibits sales of alcohol to intoxicated persons and limits the consumption of alcohol on flights to that sold there – as opposed to passengers dipping into bottles of spirits that they have bought in Duty Free.

Against the background of what is a comprehensive, if voluntary, Code, it remains to be seen what further measures the Government might introduce. In the meantime, for those of you still to depart on holiday this year, I hope you enjoy your pre-flight G&T. Cheers!

 

In July 2009, the Department for Culture Media and Sport issued Supplementary Guidance on “a simplified process for minor variations to premises licences and club premises certificates”. Part One of the Guidance repeats the wording: “a simplified process for minor variations to premises licences” This July 2009 Guidance replaced the Guidance on variations of premises licences published on the 28^th of June 2007. It was envisaged that a minor variation was a “small variation that will not impact adversely on the licensing objectives”.

The July 2015 Guidance issued under Section 182 of the Licensing Act 2003 repeats the same phraseology of “a simplified process”. The question to be asked to determine whether an application is to be classified as a minor variation or not is whether the variation proposed could impact adversely on the licensing objectives. Paragraph 8.48 of the Guidance confirms that “in considering the application the Licensing Authority must consult relevant responsible authorities if there is any doubt about the impact of the variation on the licensing objectives… and take their views into account in reaching a decision”.

There are then cited some very helpful examples of what may be a minor variation, including small changes to the layout of premises, as long as the change does not increase the capacity for drinking, or affect access between the public part of the premises and the rest of the premises, or impede the effective operation of a noise reduction measure. Variations to extend licensing hours for the sale or supply of alcohol for consumption on or off the premises between the hours of 23.00 and 07.00 or to increase the amount of time on any day during which alcohol may be sold or supplied for consumption on or off the premises must be treated as a full variation, whereas applications to reduce licensing hours will normally be processed as a minor variation.

Paddy, Anna and I have all been involved in many applications for minor variations and generally Licensing Authorities take a sensible view as to whether an application can be classed as a minor variation or not. I am currently dealing with premises which have been taken over by one of our clients and a new layout plan has been submitted. There is no increase in the public area for drinking, no increase in bar serveries and the Licensing Authority has agreed that this application can be a minor variation.

We have however had instances where we have not agreed with a licensing officer’s decision and it may be that there will be further articles on this point, should one of our cases end up in the High Court. The Guidance confirms that, in some circumstances, it would be possible to amend or remove an existing condition as “premises may change over time and the circumstances that originally led to the condition being attached or volunteered may no longer apply” (paragraph 8.64). For example, there may be no need for door supervision if a bar has been converted into a restaurant.

 What if a door supervision condition had been placed on a licence requiring door staff on a Monday night because, when the licence was granted, Monday night was a busy night (perhaps a student night) and door supervision was required at that time? If the circumstances change and Monday night is no longer a busy night and the premises may only have 20 to 30 customers, then it must surely be appropriate to use the minor variation process to remove a specific requirement for a certain number of door supervisors and replace it with a condition that asks the premises licence holder to risk assess whether and when door supervision is required. I would suggest that this should be treated as a minor variation, especially if the police agree with the application being treated as such.

 Would it be appropriate in such a case for a licensing officer, who has received advice from the police suggesting that from a crime and/or disorder point of view there is no risk to the licensing objectives, to conclude that this particular application should be a full variation as opposed to a minor variation? Although the Guidance asks licensing officers to consider whether an application could impact on the licensing objectives, there clearly needs to be some evidential basis for a licensing officer to reach a particular decision. I do not think it is appropriate for licensing officers who have received advice from the police or environmental health that an application to vary a condition will not impact on the licensing objectives to then rule that the application is not a minor variation and a full application is required. A full variation does of course require a 28 day consultation period, an advertisement to be placed in a local newspaper and of course a significantly increased fee, which could be over £1900 if the multiplier applies… or am I being cynical?