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A Reminder on Prize Competitions

It might be the increase in working remotely, or the pandemic causing more day dreaming, but once again prize competitions and lotteries are on everyone’s mind.

A lottery requires a licence if there is a requirement to pay to enter and the prizes are awarded wholly on chance. This describes a simple lottery, a complex lottery can follow a series of processes to allocate prizes, with just the first step relying wholly on chance.

If you remove the element of chance, it becomes a prize competition.

Prize competitions require an element of skill and knowledge in order to be exempt from the requirement to hold a licence. The biggest question is therefore what qualifies as skill and knowledge. In order to qualify, it must require enough skill or knowledge so as to prevent a significant portion of those entered from winning a prize, or simply prevent a significant portion of people from entering.

As a rule of thumb anything which is widely known, can be found on the same page as the question or is easily searched won’t qualify. Similarly if it is a multiple choice question for which you can have multiple attempts, that won’t cut it either.

But in an age of google in your pocket, surely anything can be easily searched? The Gambling Commission gives an example of a crossword puzzle on the back of a newspaper as being a good example of a prize competition. On the face of it this is understandable, it requires time and effort to complete a number of difficult questions. But what if the questions are not complicated?

It is clear that the validity of a prize competition will turn on the facts of each individual case. For example a maths questions seems like a good option, but a simple maths question follows the same as the above. If it does not require skill and knowledge which a significant portion of those entering will not possess, it will not qualify.

In the event a prize competition is deemed to be a lottery, it will require a licence and the competition will be halted.

Now, to confuse things, you might be thinking “I’ve definitely seen prize competitions which couldn’t possible qualify!”. Chances are such competitions are actually using the free entry route. If the competition question asks the reader to decide whether 2+2 is a) 3, b) 4, or c) 5… this is clearly not a question of skill or knowledge. However you must next look at how the entry is made. Remember; the requirements for a lottery are that it relies wholly on chance AND there is a requirement to pay. If you have not paid, it is not a lottery.

Such questions frequently have an entry route which costs, for example £5, and entry can be made by text, online or over the phone. However you can also enter by first class post and no further cost will be needed. This qualifies as a free entry route.

There are some intricacies of the free entry route- it must be clearly visible and on a par with the paid entry route, it must still be convenient and the costs must be at a normal rate (first class post- not special delivery). The most important point to note is that people must be able to choose to take part without paying and the prizes must not be allocated with any reliance on how entries were made.

A free entry route can be utilised for commercial purposes.

If any of the above interests or alarms you please feel free to contact Amanda Usher at amanda@woodswhur.co.uk or Andrew Woods at andrew@woodswhur.co.uk for more information or to discuss a situation.

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Are we seeing green shoots in the leisure sector?

As we approach the second anniversary of lockdown, when Andy Woods and I wondered whether we would still have a business after COVID, we are starting to see significant green shoots as operators come out of hibernation and fight back.

Even last year when we came out of the lockdowns and tiered system, there were significant difficulties in reopening of premises with the late night sector struggling to get traction with the government to be able to reopen at all.

It appears that we are now in a position where we are “living with COVID.” Surely that has to be the right approach generally, but certainly in relation to the leisure sector. I couldn’t quite understand how I could be going to see Pete Tong and Ibiza Classics at the O2 Arena in London in December whilst there were still talks of entering a further lockdown.

Having just visited France, I have seen how efficient their COVID passport works in getting into restaurants and licensed premises. We never seemed to get to that level of efficiency, but thankfully all of that now seems to be behind us in the UK.

It is unbelievably busy across all of our sectors now. We are seeing quality operators capable of investing in new premises, and receptive licensing authorities, who are even putting their cumulative impact policies on ice whilst they look to generate significant leisure opportunities in their town and city centres.

We are very fortunate in that we act for a number of high quality operators who have engaged in pre-application communications with responsible authorities in a number of town and city centres, and we have received receptive responses from all – even though some applications have still received representations and are going to hearings.

There are significantly large retail units which have come on the market, such as Debenhams units, and other large retailers. We are also fortunate to represent some large competitive socialising operators who need significantly more space to offer everything within their entertainment venues. Again, we have seen some fabulous new instructions in relation to this in Birmingham, Leeds, York and Brighton.

The festival and event space is always a fabulous space to be involved in. We have some major clients in this space, and are currently instructed in relation to new festival and event spaces all over the country, including Leeds, Yorkshire and multiple areas within and around London. These multi-use sites ranging from seasonal to significant events involve huge pre-planning and negotiation with all responsible authorities and regularly through safety advisory group meetings, including applying for road closures, liaising with transport operators and neighbours. They are the most interesting applications to be involved in, and particularly detailed. We are, on the whole, receiving positive responses to the applications that we are currently involved in.

The gambling sector continues to be particularly busy with machine operators picking up lots of the redundant betting sites nationally, and also banks and other spare retail spaces on the High Street. We do receive significant concern and regular objections to these applications, and many go before Committee due to the potential issues with vulnerable people and underage gamblers. It is critically import in all of these applications to ensure that operators understand their duties under the Gambling Act and ancillary regulations, and can take into account the local nuances surrounding their application sites. Again, we do not see this sector slowing down for the rest of the year.

It is also worthy of note, with the current Ukraine crisis, to see how many of our operators have gone public in refusing to sell Russian branded vodka and drinks. This is something that we see as potentially growing moving forward, one operator changing the name of their Moscow Mule to a Kiev Mule.

We have been liaising with the Night Time Industry Association and are looking forward to attending their event in Bristol on 7th and 8th April. Michael and his team have been phenomenal proponents and supporters of the night time sector during the most difficult 2 years, and we are excited to be involved. If this is something you are interested in then please register at https://www.eventbrite.co.uk/e/ntia-night-time-economy-summit-bristol-beacon-7th8th-april-2022-tickets-287899303567

We look forward to seeing you there.

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Institute of Licensing Gambling Conference 06 October 2021

Chris Rees-Gay and Amanda Usher had the pleasure of attending the first in person Institute of Licensing Gambling Conference post Covid on 06 October 2021.

A good turn out in the Grosvenor Casino in Manchester, speakers included representatives from the Gambling Commission, GamCare, a Local Authority and the industry. It was lovely to see everyone together in real life again.

First up GamCare took us through the relatively new Safer Gambling Standard and its pros and cons for both operators and local authorities. An interesting idea, and one which some operators have already invested in, however not one without problems. At the cost of the operator, GamCare will assess the practices and procedures of said operator before deciding whether to give it a seal of approval. A useful marker for local authorities when inspecting premises, however not accredited or approved by the Gambling Commission. Concerns were raised about the potential issues, including the costs involved and the actual benefit to such a sticker in the window.

GamCare do have some extremely useful resources for both operators and local authorities, including statistical data of problem gamblers and self-assessment tools (https://www.safergamblingstandard.org.uk/).

Concerns were also raised as to the financial viability of such a venture for many operators, particularly independents. Between the costs of the assessment itself, and the increased RET contributions, many were worried about operators being marked down for not having the stamp of approval.

A representative from a local authority then provided invaluable insight into their experiences of handling contested gambling premises applications. Faced with an application they felt was inadequate, the local authority discussed the trials and tribulations of what they described as the complexities of gambling applications.

The general feeling in the room from the representatives of various local authorities is that contested gambling application are rare beasts… this is certainly not the experience of Woods Whur!

For this particular application, the council felt under a great deal of pressure due to the lack of information provided by the operator, with no operating schedule (unlike in alcohol licensing), basic plans (in accordance with the legislation) and no pre application engagement from the operator.

The Gambling Commission gave a handy summary of the self-exclusion scheme, as well as stressing the importance of customer interaction. The need for robust and workable policies and procedures is now more important than ever, with the majority of current reviews being based, or at least including, customer interaction and responsible gambling failings. The most useful titbit to come from the Gambling Commission is their current opinion of thresholds for customer interactions, being that they are nearly always too high and intervention is happening too late.

Customer interaction policies and procedures must be outcome based to be effective and they must be adhered to. As always- recording is key and this was reiterated. If in doubt; write it down.

The Gambling Commission is struggling for resources, as the industry is aware, and both local authorities and operators are missing their physical presence across the country. It is hoped the increased application fees will help to alleviate some pressure and provide the Commission with some much needed additional resources.

The Gambling Commission also indicated they will be reviewing and updating the inspection guides (https://bizgateway.org.uk/business-support/business-regulation/gambling-commission/gambling-commission-assessment-templates/).

The open discussion, which included a panel made up of all of the speakers, was of particular interest. The Gambling Act review is of course at the forefront of everyone’s minds, and a great deal of discussion ensued regarding the possibility of a fourth licensing objective, namely public health. First brought up by the Local Authority early on in the day, many felt that input from their public health teams would be valuable, both when dealing with applications and for contested hearings. Also discussed but to no avail was the issue of gambling related training and the Gambling Commission’s reluctance to accredit, approve or indeed acknowledge any training courses. The operators are left to fend for themselves, which is particularly pertinent given the recent treatment of the PML holders at Caesars.

A legal round up was provided with particular focus on affordability and the upcoming review. It is always interesting to note what sort of problems are felt across the board, and at the moment the biggest problem for everyone is the issue of affordability. It was pointed out that if affordability becomes any more of an issue, gambling will be the only leisure activity for which a regulator can dictate how much a customer is allowed to spend.

The Gambling Act review is naturally capturing the industry’s imagination at the moment, with questions being posed as to which direction it might go in. A complete overhaul? Some tweaks here and there? Almost unanimously the room felt the addition of a definition of ‘vulnerability’ would go a long way to clearing up confusion surrounding the third licensing objection- the protection of children and vulnerable persons. The biggest dividing feature of the current Gambling Act, and consequently its place in any review, are the words ‘aim to permit’ in section 153… no guesses for who comes down on which side!

A major casino operator provided the context for the day. With clear and concise explanations of their business, the day to day struggles of a casino operator and where the big problems lie for operators in current times, it presented much needed balance for the day. The practical application of the rules and regulations is of most importance to operators, and the difficulties surrounding affordability were highlighted, in particular the difficulty in obtaining documents from customers. Many individuals are insulted, and quite often nervous, when asked to supply personal documents of a confidential nature.

The day was rounded off with a tour of the Casino- I don’t think anyone had a flutter but you never know!

If you have any queries on the above or any other gambling related matter please contact Chris Rees-Gay (Chris@woodswhur.co.uk)  or Amanda Usher (Amanda@woodswhur.co.uk).

 

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Welcome to the Tier System

The Government has decided that everything has become too confusing, that people don’t know whether they are coming or going, and that things need to be made simpler so that we can all understand what we’re supposed to be doing at any given time.

Rather than impose a national lockdown like we experienced in March, or continue with specific local lockdowns, the Government has decided to create a tier system consisting of medium, high, and very high tiers together with legislation and guidance to accompany them. The tier system came into force at 00:01 on 14 October.

This article will look at what the rules are for each of the tiers and the differences between them.

Medium (Tier 1)

This is the tier that applies to most of the country and that replicates the status quo prior to the introduction of the tier system. That means:

  • The rule of 6 (e.g. not meeting in groups larger than 6 indoors or outdoors)
  • Restrictions on opening hours for hospitality businesses (e.g. 10pm closure)
  • Restrictions on operation for hospitality businesses (e.g. table service)
  • Most other premises able to stay open
  • Working from home where possible

The medium tier doesn’t introduce any significant changes day-to-day and the situation will be reviewed monthly. The same is not true of the high and very high tiers.

High (Tier 2)

This tier applies to large parts of the north of England. A full list of the areas included can be found in Schedule 2 of the relevant regulations and includes places such as Leeds, Manchester, Birmingham, Nottingham and many others.

The key differences between the medium and the high tier are:

  • A ban on mixing with other households or people outside your support bubble anywhere inside, including in private homes. Seeing other households whilst still keeping to groups of no more than 6 outdoors is still possible
  • The ban above also includes hospitality businesses so premises will need to make sure they aren’t accommodating groups that aren’t from one household/a support bubble

Areas given tier 2 status will be reviewed every 14 days with the rules reviewed every 28 days.

Very High (Tier 3)

This tier applies to the worst affected areas and includes Liverpool and other surrounding areas. It is quite likely that other areas will be added to tier 3 in the coming days/weeks.

The key differences between the very high and the high/medium tiers are:

  • pubs and bars must close. They can only remain open where they operate as if they were a restaurant – which means serving substantial meals, like a main lunchtime or evening meal. They may only serve alcohol as part of such a meal
  • advising people not to travel into or out of an area if it has been categorised as a very high alert level area. This is part of wider measures to help manage the risk of transmission. You can continue to travel into or out of very high alert level areas if you need to for work, education, to access youth services or because of caring responsibilities.

In addition to these restrictions the Government guidance also suggests they will consider:

  • restrictions preventing the sale of alcohol in hospitality or closing all hospitality (takeaway and delivery permitted)
  • closing indoor and outdoor entertainment and tourist attractions and venues
  • closing venues such as leisure centres and gyms (while ensuring provision remains available for elite athletes, youth and disabled sport and physical activity)
  • closing public buildings, such as libraries and community centres (while ensuring provision remains available for youth clubs and childcare activity and support groups)
  • closing personal care and close contact services or prohibiting the highest-risk activities
  • closing performing arts venues for the purposes of performing to audiences

In short, the types of restrictions imposed under Tier 3 are not far short of those experienced in March.

If you are a premises that is affected by the new system and would like advise on what the system means for you please contact us for support.

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Local Lockdowns – What Does This Mean for You?

The powers available to implement a local lockdown are contained under the Coronavirus Act 2020 and also under the Public Health Act 1984 in which the government can make new health protection regulations to initiate local lockdowns.

We have seen that Leicester has been subject to a “local lockdown” due to the disproportionate rise in Coronavirus cases in that area. The “local lockdown” restricts movement of people, in particular the restriction of events or gatherings in accordance with Schedule 22 of the Coronavirus Act 2020. Leicester has also seen the delay of reopening of their pubs and non-essential retail have been forced to close again as a result of the “local lockdown”.

The above poses practical questions as to the effect of the “local lockdown” has on organisations and, in particular, how your organisation is affected even if you operate beyond the lockdown area. You may need to consider how your operations could be affected by reliance on  suppliers, employees, customers located in these areas or are there areas which if subject to lockdown could expose your organisation to difficulty in operating there and perhaps nationally.

Enforcement available within the “local lockdown” area is the same as that in which we all faced in March, April and May which was in place across the whole country. Insurance considerations are also important and it would be a good time to review any insurance policies you have that may include cover for such disruption or contingencies.

It is likely that the government will seek to implement further “local lockdown” areas depending on where outbreaks occur in the country and we will be keeping a watchful eye on how this will be enforced and the practical issues that will arise as a result of “local lockdowns”.

It is important that you consider within any contingency planning or risk assessments how a “local lockdown” in the current climate may affect your operations and certainly any employees that may not be able to attend in person where usually the easing of the lockdown restrictions would allow this to happen.

If you have any questions or concerns about how this will affect your operations, then please contact us to discuss your options. You can reach the regulatory team by contacting James or Sarah on james@woodswhur.co.uk or sfrow@woodswhur.co.uk or alternatively by calling 0113 234 3055.

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Changes to Large Society Lottery Financial Limits – 29 July 2020

On 16 July 2019, the Government published a response to its consultation on whether to increase the amount of money that society lotteries can raise for good causes. This was welcome news to the society lottery sector, as some operators were considering applying for a second operating licence, in accordance with the regulations, to increase a potential fundraising ability by way of a lottery product.

Despite the response to the consultation, there was little action  by the Government immediately to allow this to be confirmed in law by way of a Statutory Instrument. This is largely down to Government time being spent mainly on Brexit and then, more recently, the General Election in December 2019.

On 19 December 2019, in anticipation of the changes to the law regarding the financial limits, the Gambling commission opened a consultation into the changes to the financial limits and also social responsibility changes. This consultation was titled ‘society lottery reform’. The consultation closed on 12 March 2020 and the response was published on 30 April 2020.

The response from the consultation confirmed that the Gambling Commission will amend the Licence Conditions and Codes of Practice (LCCP) to come into effect from 29 July 2020.

The amendments to the LCCP include amendments to licence conditions:

  • 11.1.1.2;
  • 11.2.1.2;
  • 11.1.1.5;
  • 11.1.1.6; and
  • Addition of social responsibility code 4.3.3.

These changes stipulate that a lottery promoted in reliance on the licence may not exceed £5 million and the aggregate of the proceeds of lotteries promoted wholly or partly in a calendar year may not exceed £50 million. These changes will come into effect immediately from 29 July 2020, therefore there is a further licence condition setting out the financial limits applicable for 2020 only. This licence condition reads:

2b –  In 2020, the aggregate of the proceeds of lotteries promoted wholly or partly in a calendar year may not exceed £31,311,475”.

This will be welcome news to society lotteries that have been edging closer to the previous limit of £10 million aggregate proceeds in one calendar year and considering its long term lottery strategy. The changes to the financial limits mean an increase of £40 million in a calendar year for aggregate proceeds.

In addition to the “main news” relating to the financial limit increase, the consultation resulted in an addition to social responsibility code 4.3.3.  This social responsibility code states:

1. Licensees must ensure that clear, transparent and easily accessible information is made available to consumers to enable them to make an informed choice prior to participating in a lottery.  This must include, but is not restricted to details of how proceeds are used and the likelihood of winning a prize and how prizes are allocated. 

2. Licensees must take into account the Commission’s guidance on information to lottery players”.

 The Gambling Commission have published a guidance note dated April 2020 that goes into a little more detail regarding how to be transparent and easily accessible for the purposes of meeting this social responsibility code.  It is likely that this guidance will raise further questions to ensure compliance, but it appears to promote transparency, similar to what the Charity Commission requires for registered charities.

Both of the changes mentioned above to the LCCP will be in effect from 29 July 2020 which alongside the ban on credit cards that came into  effect from 14 April 2020, shows that the Gambling Commission are making big changes this year. This is somewhat overshadowed by covid-19 and what operators have had to deal with as a result of this disruption. However, it carries on the line of stricter regulation by the Gambling Commission and an increased focus on protection against gambling harms.

If you would like to discuss the change to the LCCP and how this may affect your operations, then please do not hesitate to contact Sarah Frow (sfrow@woodswhur.co.uk) or Andy Woods (andrew@woodswhur.co.uk), in the lottery and gaming team.

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COVID-19 – Guidance for businesses and the inevitable disruption to come

What’s happened?

The Government have put in place emergency measures as a result of the coronavirus outbreak. Almost every business is affected as all individuals have been advised to work from home unless it is absolutely necessary and essential that they leave their home.

What does this mean?

As a result of this, businesses face unprecedented challenges to continue to operate and ensure employee safety whilst remaining the least disruption to ensure commercial consistency. Government advice appears to be updated and rapidly moving and it is important that businesses check this on a daily basis.

There is currently an emergency legislative bill going through the House of Commons that we expect to receive Royal Assent immediately. This, amongst other emergency measures, sets out amendments to the Statutory Sick Pay (SSP) regime and protection for commercial tenants as follows:

  • SSP will be paid from day 1 rather than day 4. This will apply retrospectively from 13 March 2020;
  • SSP will be fully reimbursed by the Government to the employer (that employs fewer than 250 employees) for up to two weeks to ensure that individuals are encouraged to stay at home whilst they experience symptoms;
  • Commercial tenants who cannot pay their rent because of coronavirus COVID-19 will be protected from eviction. The Government have specifically confirmed this is not a rental holiday and tenants are still liable for rent.

In addition to the bill, there are a number of schemes that have been set up the Government as a result of the restrictions placed on individuals and businesses because of the coronavirus outbreak. To summarise, these are as follows:

  • Protection of income for employees under the ‘job retention scheme’. HMRC will reimburse 80% of furloughed workers wage costs, up to a cap of £2,500 per month. This is currently being set up by HMRC and we continue to review any news on this in the near future;
  • Schemes regarding grants and loans for businesses;
  • VAT and income tax deferral for all businesses;
  • Business rates cut for businesses in the retail, hospitality and leisure businesses or small business rate relief/tapered relief businesses.

The full support for businesses guidance is available on the following Government web page: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-support-for-businesses#support-for-businesses-through-the-coronavirus-job-retention-scheme

What’s next?

The Government are providing daily updates and also publish emails to any changes to advice online at the gov.uk/coronavirus webpage. Please keep checking this page for any changes to advice for employers and, if you are unsure about something, contact Woods Whur for further assistance. These are unprecedented times and the details in the guidance provided by the Government is changing daily to ensure clarification and avoid confusion.

In the meantime, businesses may wish to review their insurance cover terms and conditions to ascertain whether this disruption is covered under its relevant commercial insurance.

FAQ’s

  • What happens if everyone is working from home and we have to complete our lottery draw on-site?

The lottery must still be operated and run in a fair and open way, in accordance with the licensing conditions and codes of practice. The current restrictions do not waive operators obligations and duties of being a responsible operator in accordance with a licence provided by the Gambling Commission. There has been no announcement as to relaxation of this and therefore if the draw cannot be completed with the relevant people there and in accordance with the games relevant terms and conditions then the draw must be suspended. Communication of this to players and payment must be managed accordingly.

  • What if someone is displaying signs of illness and continues to come into the workplace, can we send them home?

Yes. The Health and Safety at Work Act 1974 imposes a duty on employers to take reasonable steps to protect employees health and safety. There is guidance issued by the Government specifically for employers and employees and employers should be asking employees that are displaying symptoms to read that guidance as it may affect others in the household (i.e. if someone else within the house is experiencing symptoms then the household should remain in self-isolation for 2 weeks). Please note the Government advises that no employees should be at work if they are able to work from home, without symptoms.

  • How will this affect the Gambling Commission and contact with them?

The Gambling Commission have published a press release and confirm they are now working remotely. The Account manager details you have on your e-services platform will still be the same and, if you need to make contact, you should do so by email or leaving a message on the telephone, which has been in place before the restrictions were put in place.

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Woods Whur and Innpacked

We are delighted that our relationship with Innpacked is going from strength to strength. Our clients are benefiting from our hook up with them and many are already taking advantage of the direct link into their training packages. We have also had some real success with bespoke packages being tailored to our clients needs.

Innpacked is one of the most successful training companies in the UK hospitality industry. Their client base ranges from large multinationals to individual clients who are just beginning their career. The reason for our hook up with them is their ability to provide training that suits our client’s individual needs. They deliver mandatory courses that vary from the Level 2 Award for Personal Licence Holders, which is required to gain a personal alcohol licence, to the Level 4  Award in Food Safety in Catering. They also design bespoke courses which are written and delivered to our client’s exact requirements, such as employee and management induction courses. Their  main goal is to not only deliver quality training, but training that is relevant and adds value to your business or career.

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

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fabric – a rollercoaster ride of a case

Having concluded the successful appeal for fabric in 2015 the operators and myself hoped for a quiet year in 2016. Unfortunately the issues of young people taking recreational drugs at social gatherings and in music-led environments came to a head again this year.

Two further young lives were lost by individuals who were determined to take MDMA as part of their night out. Ultimately this led to the summary review of the premises licence at fabric, the suspension of the premises licence, the revocation of the licence and the eventual reinstatement of the licence after significant time was invested by the operator, the police and the licensing authority in coming to a compromise which all parties were able to sign off – removing the need for a week long appeal at Highbury Corner Magistrates’ Court.

The case in itself highlights the huge challenges to the leisure industry and enforcement agencies surrounding issues in the night time economy.

I think the hardest part for me in the whole process was attending the inquest at the Coroner’s Court when the family, friends, staff and medic who tried to save Ryan Brown’s life all gave evidence before the coroner. I had been working on this case for several months by that stage, and had looked after fabric’s licensing affairs for three years. Everything was brought into sharp focus when I saw young men similar to those who socialise with my elder daughters emotionally giving evidence about the loss of their friend. The Coroner highlighted that the evidence had shown a naivety in drug use and she expressed concern that whatever she would say, young people would still run the risks associated with taking recreational drugs. She highlighted the need for better education systems and praised the medical facilities that are available at fabric.

The proceedings before the Licensing Authority and in the run up to the appeal again stressed the difficult circumstances that operators have in keeping drugs away from their venues. I represent bars, hotel operators, restaurants and venues more traditionally associated with the late night sector. None of these types of premises are immune from people taking drugs within them. I am constantly surprised at where drug taking now takes place and by huge challenges for operators and enforcement officers alike.

The fabric case has re-emphasised the need for operators to never stand still. One of the key offers which has been put in place by fabric moving forward is a “Target Hardening Programme”. This will see significantly different types of searching and management of the front door of the premises in an attempt to make it harder for individuals to take drugs into the premises. The difficulty is that searching cannot be intimate and it is so easy for tablets and small amounts of powdered MDMA to be smuggled in intimate places.

The more I am involved in cases such as this, the more I am of the view that enlightened enforcement protocols, which include education rather than just prohibition, are the way forward. As the coroner emphasised, nothing she was going to say would stop young people who believe they are invincible.

The statistics which Professor Measham has shared with us during these proceedings all push in that direction. There are significant issues with creating environments where naïve drug users are prepared to risk taking all of their drugs in one go – the consequences being potentially fatal when individuals “Double Drop”.

One of the key issues that has come about during the fabric case is the potential loss of the cultural and late night entertainment sector in major cities.

There is a need to invest significant sums in opening and maintaining premises such as fabric. They clearly serve a huge, loyal market. I have never been involved in a case before where a review managed to engender 872 positive representations in the review. This then led to 160,000 people signing a petition to save fabric. Many thousands of people then contributed over £300,000 to create a fighting fund to give fabric an opportunity to fight the revocation and re-open. The press coverage and reporting of the case has been at a level that I’ve never seen before and this is not purely because of the premises themselves but also the fact that people are awakening to the possibility that summary reviews could be used to remove other premises in a similar fashion.

I formed a view very early in these proceedings that a summary review was a blunt tool used to deal with the issues at the premises. If you read the preamble to the Violent Crime Reduction Act (the legislation that brought in summary reviews to the Licensing Act 2003) and all of the guidance documents since, you will see that this mechanism was brought in primarily to deal with premises associated with serious violent crime and weapons at premises.

Some months on we are in a position I genuinely believe we could have reached without the need for the premises to have closed for 4 months and this could have saved huge amounts of money on all sides, and the potential financial ruin of the business.

There have been instances during this period where I have been asked to advise police forces as to whether a summary review should be launched in certain circumstances. I have been slow to advise their commencement in a particular case which was associated with violence during football matches. We managed to set up a level of communication between the operator and the police, where everything was achieved by way of a minor variation rather than going down significantly costly litigation. It is still my advice that taking the foot off the gas and making a careful, considered approach can be significantly beneficial to all parties.

This is not written with criticism of the police in mind, in the circumstances of the fabric case. I accept entirely that the pressures in place are considerable when young people have lost their lives at licensed premises and there is a belief that the operator could do more to manage out drugs in their premises. However, as was borne out in the significant discussions with Islington Council and the police in the run up to the appeal in fabric, with a will on the part of all parties, a sensible conclusion can be reached which promotes the licensing objectives and hopefully allows the late night industry to flourish.

 

 

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Shisha Smoking – a “hot topic”

The increasing popularity of shisha smoking in recent years has led local authorities to consider the various powers at their disposal to address the activity. For councils such as Westminster, the issue might be said to be “smoking hot” at the moment, with the authority looking at measures to control it and seemingly set on a course to reduce the harm it perceives it to cause.

Westminster issued its draft strategy, “Reducing the Harm of Shisha” in December 2015, citing a British Heart Foundation study from 2012, which showed a 210% increase in the number of premises in the UK offering shisha over the five years to then from 2007. Westminster says that its document is aimed at enabling people to make informed choices, to help businesses operate in a sustainable and responsible way, and to protect and enhance the amenity of every neighbourhood within its area of responsibility.

Consultation on the document closed on the 12 February this year, with the final strategy due to be published this spring: it has yet to appear, and enquiries of the council this week revealed that publication has now been deferred until spring 2017, for undisclosed reasons. Nevertheless, the council has confirmed that the issue of shisha smoking is still very much in its spotlight.

Responsibility for public health shifted to local authorities from 1 April 2013 and in addition they have powers under licensing, planning and environmental protection legislation at their disposal.

Westminster’s Draft Strategy proposes a three-pronged approach to the issue, as follows:

  • To educate people about the harm associated with shisha;
  • To regulate the activity; and
  • To lobby and form partnerships with other authorities and organisations such as the UK Healthy Cities Network and the Smokefree Alliance.

This approach, the council believes, will increase its effectiveness and ability to improve health outcomes and reduce nuisance.

Shisha involves smoking tobacco or herbal smoking products through a water pipe or hookah. Historically most prevalent in Africa, the Middle East and South East Asia, the activity has in recent years gained popularity in Europe and North America. Although traditionally carried on by members of the aforementioned ethnic groups, it has become popular with students and other young people from all ethnic backgrounds in recent years. It is instructive to note that shisha smoking is banned in public places in some countries such as Pakistan, with other Middle Eastern and Asian countries considering similar restrictions.

Shisha bars are found across the UK and, whilst they tend to be concentrated in cities such as Manchester and Birmingham and in other boroughs of London, such as Brent and Tower Hamlets, Westminster has seen an increase in the number of premises within its area offering shisha smoking, to a total of some 132 businesses at the end of 2015, with the number continuing to grow. In Westminster, the greatest concentration of such premises is around the Edgware Road Stress Area, although some are also found in the Queensway Stress Area, the West End Stress Area and elsewhere throughout the borough.

In the consultation paper, the council points to the fact that many of those who smoke shisha are unaware of its health impact, often wrongly believing that because the smoke is inhaled through a water pipe that is “safer” than traditional cigarette smoking. Studies looking at the long term health effects of shisha smoking are few and far between but, says the council, there is an increasing amount of evidence which suggests the health effects of shisha smoking are similar to, or worse than, those of cigarette smoke. It also points to health and safety issues arising from sharing water pipe mouth pieces and the fire risk associated with burning charcoal. In addition, the consultation paper highlights the possible amenity impacts of shisha smoking caused by noise and fumes and crime associated with the activity in terms of illicit tobacco and the evasion of excise duty.

The council is engaged in various smoking cessation campaigns, including some that target shisha smoking specifically, particularly amongst students. It is also in the course of drawing up guidance for businesses on the range of regulatory requirements associated with shisha smoking that need to be met, and on good practice to address health and amenity concerns.

Turning to the regulation of the activity, Westminster’s Consultation Paper highlights the wide range of powers that the council has at its disposal to control shisha smoking. These include:

  • Smokefree Legislation – The Health Act 2006 bans smoking in “substantially enclosed premises”, imposing various rules concerning the structures in which smoking can and cannot take place. Such matters are also governed by the Health and Safety At Work Act 1974.
  • Highways Law – The Council’s Highways Department has various powers to prevent shisha smoking obstructing the pavement and to require tables and chairs on the pavement to be licensed.
  • Environmental Protection Act 1990 – This gives the council various powers to curb statutory nuisance arising from fumes or noise. Such matters are also covered by the Anti-Social Behaviour Act 2003.
  • The Licensing Act 2003 – Although public health is not currently a licensing objective under this legislation, many in the sector expect it to be introduced as one shortly. This notwithstanding, there may nevertheless be conditions on premises licences as matters stand, which serve to limit to shisha smoking by, for example, preventing the use of outside areas after a certain time, or limiting the number of patrons allowed in outside areas. Should premises be found to be causing a public nuisance through shisha smoking activity, the council has powers to add such conditions to the licence upon a licence review.
  • Planning Legislation – The council has powers to tackle shisha smoking by alleging that, by offering it as an activity, premises have unlawfully changed planning use.

I am currently involved in a case in Westminster where the council, having attempted to use tables and chairs legislation to control shisha smoking at a set of premises, is now using the planning legislation and alleging that the shisha smoking at the premises amounts to an unlawful change of planning use from A3 (restaurant) to a mixed A3 and sui generis use. An application was made for a Certificate of Lawfulness on the basis that the shisha smoking at the premises is merely ancillary to the restaurant use. However, this was turned down flat by the authority, without any opportunity being given to lodge additional evidence. That decision has been duly appealed to the Planning Inspectorate, and a decision on that appeal is awaited early next year.

In what I believe to be a robust case, the arguments advanced included the following:

  • Shisha smoking is demonstrably a very small part of the business’s turnover (being approximately 5%);
  • There is no specifically designated shisha area at the premises;
  • The number of customers partaking of shisha is very low;
  • The number of menu items represented by the shisha activity at the premises is very low when compared to the number of food and drink items on offer;
  • The appearance and presentation of the premises remain very much those of a restaurant;
  • The shisha smoking at the premises isn’t leading to any intensification of their use; and
  • Shisha smoking at the premises has never given rise to any complaints, whether they be about noise, fumes or anything else.

It will be interesting to see what the outcome of this appeal will be and also what Westminster’s final shisha strategy document looks like when it finally comes out. I know that there is considerable concern amongst the business community in Westminster, with an increasing number of outlets offering shisha or wishing to do so. We will update you on the outcome of the appeal and on Westminster’s strategy in future editions of this newsletter. In the meantime, should you have any questions or concerns, please contact one of the team.