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In the gambling sector the topic which has caused the most debate over recent times has been Fixed Odds Betting Terminals (FOBT), the higher stake and pay out machine permitted in High Street betting shops. The Gambling Act 2005 classified FOBTs as B2 gaming machines….those who have been involved in the sector pre-dating the Gambling Act will remember that they crept on to the High Street. The betting industry persuaded regulators (and the casino  sector) that FOBT were not gambling machines under the old act and were exempt from regulation, due to the random number generator set up of the machine. To avoid the threat of Court, an agreement was drawn up between the casino trade organisation and the betting industry to put a cap on the number of machines per shop and the maximum stakes and prizes.

Under the Gambling Act up to four can be sited on premises which have a betting premises licence. The maximum stake for a single prize is £100 (in multiples of 10). The maximum prize is £500.

Those who are anti FOBT have christened them the ‘crack-cocaine’ of gambling and allege that they can become instantly addictive . The speed of play, high stakes and prizes have led the anti-FOBT campaign to be highly critical of their exposure on the high street. However, they are legal, permitted as of right to operators who have the correct operating and premises licence. In addition, they are highly profitable for the betting industry and at times over the last 10 years have been a significant reason for the increase in the number of betting shops, in areas of high footfall.

They certainly have their critics and some Local Authorities have attempted to stem the flow of new licences.  They have lobbied the government to try and reduce the increase in the number of betting shops and also to reduce the rate of play, stake and prizes.

The Gambling Industry was holding its breath waiting to see the outcome of the election. The Labour party were pushing for restrictions and changes, but there wasn’t too much known in advance in Conservative policy. Not a great deal was happening in the run up to the election waiting to see what would happen after the new government was established.

The House of Commons Library has now issued a briefing paper on FOBTs for the benefit of MPs. It sets out details of the perceived  issues around them, previous consultations, betting industry initiatives and potential outcomes.

The Government has indicated that it was working with the Gambling Commission and industry to ensure that the Player Protection Measures introduced from April 2015 are to be ‘effectively evaluated’.

On 3rd June 2015 a Private Members’ Bill was introduced into the House of Lords. This has some key issues, which, if it becomes effective legislation, would reduce the maximum individual charge for a single player on a B2 machine from £100 to £2. This would have a massive hit on the profitability of these machines and the Industry is sure to lobby hard against this Bill.

The attention that FOBT’s get is not going to lessen due to the amount of Parliamentary and Regulatory scrutiny and we will continue to track developments in this area.

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When Licensing and the Criminal Law Collide

A recent case that I dealt with in the Midlands provides an insight into the overlapping worlds of licensing and the criminal justice system.

The clients, who run an off-licence, initially approached us to assist them in defending a review of their Licensing Act premises licence. The application had been made by Trading Standards, following a raid on the premises which had turned up a large amount of counterfeit and other illicit tobacco, concealed behind wooden partitions in the stock room. Interestingly, Trading Standards had chosen not to use the summary review procedure, which would have enabled the Local Authority to take interim steps in respect of the licence pending a full review hearing. That procedure was available to them, as the allegation amounted to one of serious crime being associated with the premises, but they chose instead to use the standard review process.

On behalf of the premises licence holding company, it was said that the directors had been unaware of the presence of the cigarettes until the raid took place. An employee, who was also the son of one of the shareholders, had confessed some time afterwards to hiding them there, having been prevailed upon to do so by an acquaintance. He had since been dismissed. This explained why, at the time of the raid and their subsequent PACE interviews, the director and shareholder had been unable to offer any explanation for the find.

We submitted statements to the Local Authority in preparation for the review hearing, setting out our clients’ case and also describing the various measures that the company had put into place since these unfortunate events, including dismissing the employee, passing a company resolution no longer to employ family members, and installing CCTV in the stock room. This was the first time that Trading Standards had heard our clients’ explanation, and they understandably sought an adjournment of the review hearing, in order to enable them to conduct a PACE interview of the employee concerned. We consented to this, and the story he gave in interview was consistent with our clients’ version of events.

This notwithstanding, Trading Standards asked that a new date be fixed for the review hearing, and this was duly done. In the intervening period, however, the prosecution brought by Trading Standards against the licence holding company and its director came up for hearing before the Magistrates’ Court and we were instructed to defend both parties at the trial.

There were some 22 charges brought, arising under the Consumer Protection Act 1987 and the Trade Marks Act 1994. The allegations related to possessing for sale counterfeit tobacco and products not bearing the health warnings required by law. The prosecuting authority had no evidence of actual sales of the articles in question being made: indeed, the premises had passed a number of test purchases aimed at flushing out illegal tobacco sales.

This being the case, the Prosecution had to prove to the requisite criminal standard of proof, beyond all reasonable doubt, that the company and its director were aware that the illicit tobacco was on the premises and were keeping it there with a view to selling it, or that they had failed to exercise all due diligence in allowing it to be there. We were instructed to enter not guilty please to all charges on the basis of the employee’s claim that he had been bullied by a third party, without anyone else’s knowledge, into stashing the tobacco at the premises.

Both the employee and the company director appeared as witnesses at the trial, and their accounts were entirely consistent with everything that had been said previously. The Bench of lay Magistrates listened to all the evidence, which took all day, and concluded that the Prosecution had not proved its case beyond all reasonable doubt. The employee’s explanation was sufficiently credible to cast a doubt upon the guilt of the company and its director. Not guilty verdicts were returned in respect of all charges and we were able to recover some £14,000 in costs against Trading Standards.

It is somewhat unusual for costs to be recovered against a Local Authority upon a successful defence of a prosecution, as it only happens when the Court considers that the Authority has acted unreasonably in pursuing the case. Here, because the flaws in the evidence and the Defence’s explanation had been repeatedly set out to the Council’s lawyers in correspondence in the run-up to the trial, the Court felt that proceeding with the prosecution had been unreasonable.

Our clients were, understandably, delighted with the result in the Magistrates’ Court, but there remained the question of the review proceedings, which were listed for hearing some weeks afterwards. It came as something of a surprise, then, when, a couple of days after the acquittals, the Local Authority got in touch to say that Trading Standards were prepared to abandon the review, as long as our clients would consent to a condition being placed on the premises licence to the effect that the stock room be covered by CCTV. As mentioned above, this had already been put in place and so this represented an excellent result for our clients, who were otherwise potentially facing the revocation of the licence.

The simple fact of the acquittals on the criminal charges did not, of itself, prevent the review from going ahead. As noted above, the standard of proof in a criminal case is extremely high – beyond all reasonable doubt, or “99.9% certainty of guilt”- in order to secure a conviction. The same high standard does not apply in civil cases, which are decided on the balance of probabilities, otherwise known as the principle of “more likely than not”. Although the employee’s version of events in this case was enough to cast sufficient doubt in the minds of the Magistrates, it might not have satisfied the Licensing Committee to their required standard. Furthermore, the Committee might well have felt that the management of the premises generally demanded scrutiny and standards to be addressed, due to the fact that, even on the Defence case, the employee had been able to stash a large amount of illicit tobacco on the premises without being detected. It is also worth noting that costs are not recoverable at licensing hearings until the matter reaches the appeal stage.

In the event, though, Trading Standards clearly decided to take a pragmatic approach in a case that had already consumed very significant time and resources. It appears that they felt that the introduction of back-of-house CCTV would be sufficient – when taken together with the other measures that our clients had already put in place – to prevent similar problems from arising at the premises in the future. Such pragmatism does not invariably manifest itself in the licensing field, however, and it is worth remembering that an acquittal in a criminal trial does not necessarily preclude a review of the licence being pursued on grounds of crime associated with the premises.

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Can Poker Bring You A Full House?

The British have certainly caught the poker bug from their US counterparts. The recent Gambling Prevalence Study published by the Gambling Commission shows that online gambling continues to grow at a rapid pace, and online poker is responsible for a significant part of the figures. Meanwhile, face-to-face poker tournaments are increasingly popular.

By contrast, the Study reports that participation rates in poker played in pubs and clubs are declining. Given the draw nowadays of poker, though, it’s worth considering running a poker night as an alternative, perhaps, to a quiz night, as a means of attracting more customers into your business and persuading them to stay longer.

There are various different ways to run a poker tournament legally, as set out in the Gambling Act 2005 and enforced by the Gambling Commission and your local council.

You can host a poker league for customers, with a maximum stake of £5 per player per game. Combined stakes across all games must not exceed £100 per day, though, and the maximum prize is £100 per game. This includes the value of goods and donated prizes, as well as cash. A poker night will bring additional custom over the bar, but you are not allowed to charge a fee for participating – this includes, for example, having entrants pay a compulsory charge for a meal or a drink during the evening.

Alternatively, you might consider running a poker game and donating the profits to charity. If you do, players must be told what the good cause is, and you can’t charge them more than £8 to play, whether this be as a stake, a participation fee, or the two combined. There’s no limit on the overall stakes from all participants, though, and the value of prizes can be up to £600. Again, this includes cash and money’s-worth in the form of goody-bags or donated items. If you host a series of events where people qualify by playing a number of rounds, the total prizes can amount to as much as £900.

If you have a function room, why not let a group of friends use it to stage their own poker game? You can’t charge for participation or for use of the room, but there are no limits on stakes or prizes and it’s a way of bringing in additional spend. Make sure that the room is properly segregated and monitored, so that it’s not accessible to other customers.

Finally, you could run poker events under temporary use notices on up to 21 days in any 12 month period, in partnership with a company that has a casino operating licence. Unlikely as it may seem, these do happen and bring huge benefits in terms of turnover and publicity.

Poker is certainly a revenue-driver, but the rules surrounding it are complex and the penalties for getting it wrong potentially heavy. It’s always best to get some specialist advice before advertising – let alone running – a poker night, if you want a flush, rather than to fold.

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Conditions On Premises Licences…How Can We Modernise Them?

I have a real problem with some converted licences which came over from the previous legislation…can you believe it…10 years ago!

What were we doing 10 years ago? We were trying to hit the deadline of Grandfather Rights to ensure that everyone kept their authorisation after the transfer to the Licensing Act. With the benefit of 10 years worth of hindsight a lot of what we believed/were told at the time has led to some of the issues which cause me concern now.

In the last month I have been looking after a restaurant with nearly 100 conditions and a bar with nearly 200 conditions. Do the operators comply with them all…or know them all? Do the regulatory authorities enforce them all…or know them all? I doubt it.

We have a significant amount of operators around the country who grandfathered the conditions of their old licences on to their premises licences during the period of transition. This means that a significant number of redundant conditions are attached to licences from old Children’s Certificates, Supper Hours Certificates and Special Hours Certificates. Under the old legislation (s77 Licensing Act 1964); to get extended hours the sale of alcohol had to be:

  • in a casino;
  • premises for which a music and dancing licence was in force, and
  • that the whole or any part of the premises is structurally adapted, and bona fide used, or intended to be used, for the purpose of providing for persons resorting to the premises;
  • in the case of casino premises, gaming facilities and substantial refreshment, and;
  • in the case of any other premises, music and dancing and substantial refreshment, to which the sale of intoxicating liquor is ancillary.

So where does that leave us…in a mess to be honest! There are operators who still do not realise that they have a condition on their licence whereby alcohol should only be sold when ancillary to the provision of music dancing and substantial refreshment. It is the duty of the operator to comply with all of the conditions on their licence…or apply to have them removed.

Most Licensing Authorities have a pool of “preferred conditions” which, in the most enlightened authority areas, change and are modernised through the passage of time. Leeds City Council has produced the Proforma Risk Assessment V7 document which is hugely helpful in this regard.

So what to do…

We can make an application to “modernise” the licence by way of a minor variation or during a full variation. However, this can be frustrated by responsible authorities who have a desperate urge to control. Surely the minimum number of conditions that are required the better for all. Easier to comply….easier to enforce. Not always the case though. I have recently tried to tidy up a licence and was met with requests for additional conditions from the authorities which would have left us with more conditions than we started with!

We also made an application in Liverpool for a convenience store and volunteered a security guard as and when we risk assessed the need to use. The police wanted this as a condition and we went to committee to argue that if we had already traded from a number of licences in the city promoting the licensing objectives with us doing this voluntarily then why did it need a condition on the new licence?

After a good debate with an enlightened and sensible committee we were given a decision that there was no need for this to be a condition on the licence….I wish this was the same throughout the country.

A reminder please:

The S182 Guidance document has a chapter given over to conditions on premises licences. This should be our starting point, applicants/advisors, responsible authorities and Licensing Sub-Committees/advisors. Relevant consideration should be given to the following paras:

1.16 Conditions on a premises licence or club premises certificate are important in setting the parameters within which premises can lawfully operate. The use of wording such as “must”, “shall” and “will” is encouraged. Licence conditions:

  • must be appropriate for the promotion of the licensing objectives;
  • must be precise and enforceable;
  • must be unambiguous and clear in what they intend to achieve;
  • should not duplicate other statutory requirements or other duties or responsibilities placed on the employer by other legislation;
  • must be tailored to the individual type, location and characteristics of the premises and events concerned;
  • should not be standardised and may be unlawful when it cannot be demonstrated that they are appropriate for the promotion of the licensing objectives in an individual case;
  • should not replicate offences set out in the 2003 Act or other legislation;
  • should be proportionate, justifiable and be capable of being met;
  • cannot seek to manage the behaviour of customers once they are beyond the direct management of the licence holder and their staff, but may impact on the behaviour of customers in the immediate vicinity of the premises or as they enter or leave; and
  • should be written in a prescriptive format.

The whole of Chapter 10 should be considered but in particular:

10.10 The 2003 Act requires that licensing conditions should be tailored to the size, type, location and characteristics and activities taking place at the premises concerned. Conditions should be determined on a case-by-case basis and standardised conditions which ignore these individual aspects should be avoided….Licensing authorities should, therefore, ensure that any conditions they impose are only those which are appropriate for the promotion of the licensing objectives.

And don’t get me started on British Summer Time…..

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Irresponsible Drink Promotions..Are We Any Closer To Understanding What Is And What Isn’t Irresponsible?

This is still a question which generates great debate. I can’t see that we have any great certainty of what falls into the category of an irresponsible drinks promotion.

In my view there are some definitive positions where there would be an irresponsible promotion, some which would not…and a huge grey area. Lawyers like grey areas….

What is an irresponsible promotion?

Anything which breaches the mandatory condition on the premises licence. A breach would mean that the premises licence holder would be committing a criminal offence under s136 of the Licensing Act. .

The mandatory condition states:

  • 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 premise.
  • 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.
  • 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).

So if you fall in one of the prescriptive categories above then in the circumstances you would be carrying out an irresponsible drinks promotion and capable of being prosecuted (£20,000 fine and or 6 months imprisonment). .

Guidance has been given by the Home Office and can be found at the following link: .

What is not an irresponsible promotion?.

I would advise that any promotion which does not specifically fall within one of the above prescriptive definitions, and does not have any effect on the licensing objectives, would not fall in to that category. .

The “Grey Area”.

Now it gets interesting…..

What about heavily discounted nights at venues? I would suggest that if these are managed properly, and people are not sold more alcohol if they clearly have had enough to drink then they are permissible. I would always advise that there is good staff training and risk assessments in place to ensure all staff are aware of the potential issues. .

What about Beer Pong? Hugely popular with a number of venues now. Again, I would suggest that with proper parameters that this is not immediately a breach of the mandatory condition. I take the view, therefore, when reading the specific wording of the mandatory conditions that Beer Pong does not contravene the mandatory condition. Clearly the consumption of alcohol by individuals whilst they are playing is something that should continue to be monitored by staff, but I do not think that the game could be seen to be breaching the mandatory condition. .

I have just heard that there was some very zealous policing of some premises over the weekend where, in my view, the police were wrong with their approach. I understand that premises were threatened with immediate closure (no power) if they did not cease the promotion (which did not per se breach the mandatory condition). .

If you are an operator of licensed premises or an enforcement officer and you are unsure on any of the above then I would be delighted to discuss this issue with you.

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Special Needs

Many of you will have heard of “special policy areas”, “stress areas” or “cumulative impact zones” in the context of alcohol licensing – but what effect do they have? A case I was involved in recently demonstrated just how powerful these policies can be.

It was a David vs Goliath scenario. I appeared on behalf of a residents’ group (albeit well- organised and funded) against one of the giants of the fast food sector. The company wanted an increase in hours on a site that had previously been occupied by a traditional restaurant within Camden’s Seven Dials Special Policy Area (SPA). Residents were extremely concerned about the premises trading later and about the increased footfall that the new style of operation would bring.

Camden’s Statement of Licensing Policy says that any new premises licences, or relevant variations to existing licences such as extensions to hours or increases in capacity, should be refused in their SPA. This is, however, a rebuttable presumption that can be departed from in exceptional cases. The question was, could the applicant in this case prove that it deserved to be made the subject of an exception to policy?

It certainly thought so, having paid a large premium for the site and spent three months fitting it out. It turned up mob-handed at the hearing, too, with a barrister, two solicitors and a host of people occupying various roles within the company. Somewhat unusually for a case involving a residents’ association, the applicant’s corner outnumbered that of the objectors.

The applicant came armed with a huge raft of policies – all formulated at HQ and passed on to its franchisees to dictate the way in which their outlets are run. They took issue with the statistics on crime quoted by the police who, interestingly, were supporting the application as a way of getting a condition on to the licence requiring door supervisors.

Company policies covered everything from CCTV to litter-picking. The premises would, the applicant maintained, be well- managed and run.

Camden’s Councillors, however, were not persuaded. They stressed that applications in the SPA will be refused in almost all cases. This one, they felt, fell very short of being exceptional. The fact that the applicant might run the place well, or that it operates similar premises elsewhere without complaint, were not good enough reasons to depart from the policy.

If you are thinking of acquiring premises, or looking to extend your licence, in a stress area, you should be aware that you will have to work hard to show that your case is exceptional. Examples where you might succeed include very small capacity (50 or so) premises which do not trade late, food-led premises with restricted hours and instances where you have surrendered a licence for similar premises in the area with similar activities.

Due diligence on the licensing authority’s policy is therefore crucial before you consider embarking on such a project, if you do not want to risk having a site that you cannot operate as you wish.

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Manchester And Westminster City Councils Launch Their Gambling Research Project

On 4 March 2015 Anna Mathias and I were invited to attend the launch of Manchester and Westminster City Councils’ gambling research project. The event was hosted by Kerry Simpkin of Westminster City Council and Fraser Swift of Manchester City Council and short speeches were made by Councillor Tony Page of the Local Government Association and Rob Burkitt of the Gambling Commission. Councillor John Longsden (Manchester Licensing Chairman) and Councillor Tim Mitchell (Westminster Licensing Chairman) gave a summary of Manchester and Westminster’s current gambling scene and local concerns and Fraser Swift and Kerry Simpkin gave Manchester and Westminster’s reasons for commissioning this project and how it will be used. The back drop to the project is the number of gambling venues and in particular betting offices in Manchester and Westminster, although all present were careful to confirm that the project was a general project and not aimed at Betting Offices or Fixed Odds Betting Terminals.

Rob Burkitt from the Gambling Commission explained that Section 153 of the Gambling Act 2005 sets out the legal framework for Local Authorities to consider new applications for gambling premises licences and pointed out that whilst the starting point is “aim to permit”, licensing authorities must do so in accordance with the Gambling Act, Codes of Practice, Gambling Commission Guidance and Local Authority Policies. It did appear to me that Rob Burkitt was not correct in his interpretation of the legislation, but the thrust of his argument related to the fact that if the local authority policy highlighted specific concerns in specific areas (for example, a concern about protecting the vulnerable in an area with a lot of Homeless Projects etc) then the Licensing Authority has to consider these concerns when considering new licence applications.

The research is being undertaken by Geofutures and Heather Wardle who is a research director at Nat Cen and heads their research in to gambling and leads key studies in to the British Gambling Prevalence Survey. Geofutures are a data science practice who map out data on to reports. Heather Wardle explained that she would be speaking to a large cross section of people and would be looking at different sectors of society who may be harmed by gambling and then mapping out hot spot areas in which there was an abundance of these sectors. The work would try and look at how characteristics of vulnerability data map out and would be a localised investigation. The work would take approximately four months and Westminster City Council and Manchester City Council would integrate their research in to their local policy.

It was noted during the launch event that there is no definition of vulnerable persons and no real evidence as to what type of person may gamble more, beyond their means or fail to make an informed decision.

During the question and answer session it became clear that the research would identify groups of people who may be vulnerable to gambling problems. This may be a certain group of people such as “homeless people” or it may be a certain ethnic group. Indeed it may be some other group that the research would come up with, but it did not seem particularly clear to me as to whether the research would actually find that a particular group is being harmed by gambling. The question and answer session appeared to me to lead to the conclusion that a number of groups would be established who may be harmed from gambling. Geofutures would then map out areas within Manchester and Westminster where these particular groups of people may be and the Local Licensing Policies would set out that these areas are areas of concern.

I am delighted that we have been invited to take part in the research and will be meeting with Heather Wardle in the near future. It will be interesting to see the results of the research which will be published hopefully within the next four months.

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Changes to Planning Legislation for Betting Offices

In this article Andy Woods looks at the impact of The Town and Country Planning (Use Classes) (Amendment) (England) Order 2015 and the Town and Country Planning (General Permitted Development) (England) Order 2015, both of which came into force on 15 April 2015.

I have written many articles and spoken at many conferences on the impact of the Gambling Act 2005 on Betting Offices. I have regularly faced questions at Licensing Committee hearings from both objectors and Councillors on to the number of betting offices on a particular high street or the impact of betting offices on a particular high street.

The Daily Mail newspaper has continued to express its own views on betting offices – views which have been taken up by a number of politicians and councillors in their opposition to betting offices generally. However, despite a plethora of newspaper articles and “comments” about the adverse impact of betting offices generally – there has still not been any clear evidence supporting the opposition to betting offices and the number of betting offices in the UK had reduced in recent years.

The Government (whichever party is in charge) is fearful of touching the Gambling Act 2005 and sees any political debate as a “no win” situation. After months of speculation Planning legislation has been changed as of 15 April 2015, which will have an impact on the Betting Industry in England. All new betting offices will require a specific planning permission and have been taken out of a general ‘A2’ financial and professional service use class. Under the previous legislation a betting office fell in the same category as an estate agent / bank / restaurant etc. and did not require a change of use application. This is not now the case.

There were transitional provisions in place to cover the process of conversion to use as a betting office but the transitional period was incredibly short and only lasted up until 15 April 2015. If an operator has a Betting Premises Licence in place before 15 April 2015 then they would have a period of three years up to 15 April 2018 to open the betting shop and trade the premises. It seems very surprising that this transitional period did not even cover the 28 day period which is the consultation time for a new Betting Premises Licence Application. I represent clients who had submitted an application for a Betting Premises Licence prior to the implementation of the new legislation, but their betting premises licence will not be granted until after 15 April 2018.

The new planning legislation will clearly impact to a certain extent on the industry. It is important to note, however, that the planning legislation does not prevent “change of use” and the Planning Authorities will have to process applications in the usual way and applications will be the subject to the usual considerations. There is no “need or demand test” – there is no reference in the legislation to a “concentration or cluster” of betting offices to be a reason for refusal and there is no limit in planning terms on the number of machines allowed in certain areas.

Any application for change of views to a betting shop will be decided on the individual merits of each case and subject to the local authority policy. I have no doubt that a number of “change of use” applications will be refused by local authorities who do not want any more betting offices. We will have to wait to see how those refusals are dealt with on appeal before the new planning legislation settles down.

Should you require any further information please contact me at or on 07738 170138.

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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

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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.