Category: Uncategorised

A case I’ve been involved n recently has served to demonstrate quite how hard it can be to turn the tide if you’re unlucky enough to lose your licence as a result of a review under the Licensing Act.

The premises – a convenience store in a residential area – had its licence reviewed at the instigation of the Police just over a year ago. Police said it was a focus for antisocial behaviour. Youths were hanging around outside, drinking, smoking cannabis, fighting and intimidating passers-by. A large number of local residents had complained to the authorities, and to the owner, who had declared himself unable to do anything to address the problem. The Safer Neighbourhood Team had become involved, and had placed dealing with these issues on its Action Plan. In addition, the premises had made an underage sale to a 15 year old girl and a police officer visiting the premises alleged that he had witnessed a sale being made to an intoxicated individual.

Police asked the Licensing Committee to revoke the licence outright, on the basis that other steps taken to resolve these matters amicably had failed. They had no confidence that other measures, such as imposing conditions on the licence, would work. In the alternative, they suggested a large number of licence conditions as a last resort.

We became involved when we were instructed to apply to get the licence reinstated. The proposed Designated Premises Supervisor was different to previously, a certain amount of work had been done to improve security at the premises, such as the CCTV system, and, largely due to the efforts of the police, there was no longer a problem of antisocial behaviour in the area. The operator had waited a full year before reapplying and was proposing implementing further improvement measures, such as installing additional lighting on the shop front and removing posters and other obstructions from the window, were the licence to be granted.

We recommended that the application include a large number of conditions – all of those sought by the police previously as an alternative to revocation, together with some new ones, and that the applicant try to get as much support from the local community as possible. Sadly, whilst more than 150 local residents did sign a petition in support of the application, several local residents did object to it, and a substantial number signed a petition against.

The Police and Licensing Authority put in strenuous representations against the application. Their take on the situation was that the antisocial behaviour problem had abated, and the only thing that had changed in the area was the removal of this premises’ alcohol licence. It followed, they said, that if the licence were reinstated, the problems would return.

The Licensing Committee considered that they should rely on the Police as the best source of advice on crime and disorder and, whilst they took on board the various things that the applicant said he would do differently in the future, they were not prepared to grant the licence at this stage.

The one positive thing to arise from the hearing process, though, was that it gave a chance for meaningful dialogue between the applicant and the Police. As a result it is now clear that, if the applicant engages with the Police and local community, for example getting the Police to visit to see the various improvements to the premises as he carries them out, attends local community meetings and liaises with the Safer Neighbourhood Team, there is a real chance that a future licence application will go through unopposed.

As a result, the operator is in a far better position in terms of laying the ground for getting his licence back and I am optimistic that he is well on the way to restoring the confidence of both the authorities and his neighbours.

Another thing to bear in mind is that representations about licence applications do not necessarily have to be negative! If you have support for your application in the local community, you should harness that by asking people to make representations in support during the 28 day consultation period. Individual and personal letters are best, but even signatures on a petition or a pro-forma letter will carry some weight.

In this article Andy Woods looks in more detail at the recent decision of the Upper Tier Tribunal which found in favour of the Gambling Commission in its appeal in the Greene King case against the decision of the First tier Tribunal.

The much-awaited decision of the Upper Tier Tribunal in the Greene King/Gambling Commission case was handed down on the 29^th of January 2016 by Judge Levenson. I know that many people have been waiting eagerly for this decision and I have regularly had representatives from both Local Authorities and Operators asking me when the decision would be released and who I thought would win!! The background to the case is that Greene King which operates over a thousand premises with alcohol licenses had applied to the Gambling Commission for an operating licence to provide bingo and ancillary gaming machines in a limited number of premises. The application was made to the Gambling Commission on the 24^th of May 2012 and was refused at a regulatory panel meeting on the 26^th of February 2014. Greene King appealed to the First tier Tribunal and the decision of Judge Warren on the 8^th of December 2014 was to allow the appeal and quash the decision of the Gambling Commission. Judge Warren stated in paragraph 31 of his decision: “…here in my judgment they (GC) were trespassing on territory which the Act assigns to Licensing Authorities…the Commission’s purpose in refusing the applications and indeed the only justification for doing so is to prevent Greene King from applying for a premises licence”.

The Gambling Commission appealed to the Upper Tier Tribunal and, as most of you who read the industry press will know, were successful. The Gambling Commission’s own website has in its latest news section the article “Gambling Commission wins Greene King appeal”.

I have no doubt however that many of you who were waiting for this decision will be disappointed that the decision does not look at the specifics of the actual Greene King application as the decision deals with simply whether or not the Gambling Commission acted within its powers. The debate amongst most people is whether Greene King’s application under the Gambling Act 2005 should be granted or not. Should a pub operator with over a thousand alcohol premises licences be granted an operating licence for bingo and ancillary gaming matters for a limited number of its pubs if it complies with the Gambling Act 2005? This could also be phrased in the following way: why shouldn’t Greene King get a licence to put bingo in certain areas of a limited number of pubs if it complies with the legislation and regulations? One point of view is that the Gambling Commission were trespassing on the actual legislation and trying to create their own legislation rather than merely enforcing what the Gambling Act 2005 stipulates whereas another school of thought argued that the Gambling Commission was perfectly entitled to refuse an application of this nature if it felt it was against the “spirit” of the legislation and did not promote the Licensing Objectives .

The Gambling Commission in various publications since the First Tier Tribunal’s decision has argued and is consulting on the fact that there should be a “graduated regulatory framework” (paragraph 2.10 Gambling Commission consultation document November 2015 “controlling where gaming machines may be played”). In paragraph 2.10 the Gambling Commission continues, “at the lowest tier are unlicensed family entertainment centres and pubs. They are subject to minimal regulation (a simple permit from or notification to the Licensing Authority) but offer very limited facilities for gambling. Bingo, adult gaming centres and betting premises in turn offer gambling activity of increasing “hardness” and are consequently subject to increasing levels of regulation.” If you are a pub and customers think they are entering a pub then you should not have a bingo operating licence, argues the Gambling Commission. Greene King on the other hand would argue that they will comply fully with all codes of practice, regulations and legislation and therefore should be granted the licence.

The Upper Tier Tribunal was not asked to and therefore did not determine the actual application by Greene King. The Upper Tier Tribunal was asked to rule on whether the First Tier decision was legally flawed in two ways:

1. The First Tier Tribunal erred in law in finding that the Commission had taken into account matters which were exclusively for the Licensing Authorities on a premises licence application. This finding was contrary to the statutory scheme of the Act and the functions of the Commission as the national regulator:
2. The First Tier Tribunal erred in law in requiring the Commission to issue an operating licence it had found to be inconsistent with licensing objectives in circumstances in which no factual finding had been made by the First Tier Tribunal which overturned that conclusion.

The Upper Tier Tribunal allowed the appeal on point one above and therefore did not consider point two. The Gambling Commission decision of the 26^th of February 2014 had not taken into account matters which it should not have done by law but there is no ruling on whether the decision was factually correct based on the evidence before it.

It is necessary in order to fully understand the Upper Tier Tribunal decision to look at what the Gambling Commission said in its substantive decision in February 2014. The following is a summary of paragraph 66-69:

66 – GC is concerned about the development of commercial bingo in pub premises and whether this has a potential impact on the licensing objectives. The GC approach is a precautionary approach.

67 – GC must aim to pursue and wherever appropriate have regard to the licensing objectives and must permit gambling in so far as it thinks such permission is reasonably consistent with those objectives.

68 – The regulatory panel did not consider that granting these applications would be reasonably consistent with the pursuit of the licensing objectives. Putting high stake bingo and category B gaming machines in a pub environment could potentially jeopardise the second and third objective.

69 – The intention of the Act is to create a graduated regulatory regime and there are different expectations of those frequenting pub or bingo premises as to their primary purpose and taking a precautionary approach the application was refused.

Judge Levenson in the Upper Tier Tribunal also made the following comments:

• GC has an integral role with oversight over gambling policy and regulation and issues statements of principles of codes of practice and “acts as a gatekeeper”.
• Although Local Authorities consider individual premises licence applications this does not mean that the Commission has no power to consider matters relating to the operating environment.
• The functions between the Gambling Commission and Local Authorities overlap to some extent.
• The Commission has the function of setting policies at a national level.
• It would be contrary to the GC’s statutory duties to grant an operating licence if the Commission was of the view that an operational model cannot be delivered consistently with the licensing objectives.

It will be interesting now to see what Greene King decide to do. As the Upper Tier Tribunal has ruled that there was no error in law in the Gambling Commission’s original decision and whilst everybody will tell you that each application is taken on its merits and a differently constituted panel will sit and decide the Greene King application it would be reasonable to guess that the Gambling Commission regulatory panel which will now have to look at the substantive application again will make the same decision as the original panel. It will refuse the application.

I have made several applications for new operating licences for bingo clients in the last two or three years and well in excess of 50 applications for bingo premises licences and the decision of the Upper Tier Tribunal supports the clear message that my clients have been given by the Gambling Commission. If you want to be a bingo operator with a bingo operating licence and a premises licence then your premises must be bingo premises, appear to be bingo premises and must not look as if they are something else. I have represented clients who have converted snooker clubs to bingo premises and we have never had an application refused but my clients have always made sure that the conversion of the premises is not a sham and that the converted premises are clearly bingo premises to the outside world whether or not they offer alcohol, food and snooker tables as well. There is nothing wrong with Bingo Premises offering a range of activities as long as the Premises appear to be Bingo Premises. The practical issue that the Gambling Commission and the Upper Tier Tribunal appear to have with Greene King is that whilst Greene King may comply with all the regulations in a certain part of a limited number of pubs the fact is that the premises will still be pubs, will look like pubs and will be a pub environment in all areas other than an area set aside for the playing of bingo. Greene King will continue to argue that their applications comply fully with the Gambling Act 2005 which “aims to permit” applications to be granted and they will be compliant with all codes of practice and regulations then their applications should be granted.

We will now wait further developments in this case but I have to say that I agree with the Upper Tier Tribunal’s comments that the Gambling Commission has to look at the way that premises will actually operate when considering an operating licence application and that cannot solely be a matter for the Licensing Authority. It would make no sense to me for the Gambling Commission to grant operating licences knowing full well that they themselves will then object to every single premises licence application on the basis that in their opinion the premises would not be suitable.

 

 

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

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

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

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

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

Please see below the criteria again for the candidates:

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

 Please see attached leaflet for more information. ARAR Leaflet

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The new policy can be found via this link:

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

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

RED

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

AMBER

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

GREEN

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

In summary the policy states:

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

• refuse new and variation applications in the red area

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

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

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

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

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

 

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

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

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

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

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

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

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

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