Posted on by

Gambling Commission Reminds Operators About Fee Categories

The Gambling Commission (“GC”), in its latest E-Bulletin, has reminded operators that they must ensure that their licence sits within the correct fee category.

Due to the timing of the coming into force of the Gambling Act 2005 and its associated transitional period, July every year sees the issuing of the bulk of annual fee demands. Your annual fee must be paid on or before the anniversary of the issuing of your operating licence.

Gambling operators are required to provide three years’ financial projections when they apply for an operating licence, and the application and annual fee are dictated by gross gambling yield (“GGY”). GGY is, broadly speaking, defined as the total amount received in stakes minus prizes paid out and estimating this, particularly in the case of a start-up, can be an art rather than a science – expectations may be exceeded, or not be met.

This means that your operating licence may be sitting in the wrong fee band and that you may be paying too much, or too little for your annual fee. I often am asked by clients as to what they should do, or would have to do, if this proves to be the case and I know that it does cause some anxiety.

The simple answer is that you must apply for an operating licence variation to either go up, or drop down, a fee category (or more).

There is some good news: the GC’s advice is that the variation process should be completed “as soon as possible” – this suggests to me that it will not penalise operators who have already inadvertently slipped into a higher fee category than originally envisaged, for example. Of course, those who may be aware that they are in the wrong category and have failed to disclose it to the GC, or who are deliberately under-declaring their GGY, are in breach of their duty under the Licence Conditions and Codes of Practice to co-operate with the GC in an open and transparent manner and face a real prospect of enforcement action.

The other piece of good news is that the GC fee for altering your GGY band – whether up or down – is a fixed fee of only £25.

The application may be made via the eServices link on the GC website. Please contact me at anna@www.woodswhur.co.uk, should you require any assistance.

Posted on by

Changes to the Licence conditions and codes of practice – April 2018

In this article, Andy Woods looks at the new version of the Licence Conditions and Codes of Practice (“LCCP”) and, in particular, highlights some of the key changes.

In many ways the LCCP should be the heartbeat of any gambling business and should form the basis of policies and procedures implemented by all gambling operators.  The Gambling Commission (“GC”) defines the LCCP as setting out “the requirements you must meet in order to hold your operating licence and your personal licence.  It is a very important part of running your business…”

It is a general requirement of the LCCP that all operators keep themselves up to date with any changes to legislation and to the LCCP and it is extremely important that operators understand that the LCCP is a changing document and updates and that amendments are made regularly, to take into account developments and innovations in the industry and to set out the most effective way of promoting the licensing objectives, in particular, promoting social responsible gambling.

The LCCP is not a “one size fits all” document, as there are sector specific sections and, if at all possible, the GC will make it clear what it expects operators to achieve in certain policies and procedures but allows them to write their own policies and procedures to deal with its requirements.  What is relevant to a Mayfair Casino dealing with high stake customers may not be relevant to an operator who only trades one betting shop.  However, the general principles that both will have to abide by remain the same.

The latest LCCP came into effect on 4 April 2018 and there are particular changes relating to Society Lotteries and the regulatory data that is to be provided to the Gambling Commission.  These were the two matters that the Gambling Commission consulted on in 2017.  There have also been minor changes to the social responsibility code provisions 3.5.3 and 3.5.4 and an update to the reference for the online portal for information at 15.3.1.

  1. The requirement to report the number of Suspicious Activity Reports (“SARs”) on regulatory returns has been removed and the information on discounted relationships will be collected through the key events reporting mechanism (via the eService Portal on the GC website). This change to the LCCP requires discounted relationships to be reported alongside information on SARs as key events.
  2. Information about game faults which result in over- or under-payment to customers needs to be reported as a key event.
  3. The existing requirement to report group advertising to a new jurisdiction has been widened to include a new requirement to report where there has been sustained/meaningful generation of the 3%/10% threshold being passed for the wider group.
  4. The definition of “low frequency lottery” has been updated to include those lotteries offered by local authorities.
  5. A new social responsibility code provision has been added to require operators to publish the proportion of lottery proceeds returned to the purposes of the society or local authority.

I am sure that some of the above points will come up at our seminar at The Hippodrome Casino on 8 May 2018.  There are still a few places available and if you would like to come please contact sarah@www.woodswhur.co.uk.

If you have any questions in the meantime on the above, please do not hesitate to contact me.

Posted on by

Licensing Hours Extended for the Royal Wedding.. but just for alcohol

This article looks at the Government’s decision to extend licensing hours to mark the wedding of Prince Harry and Meghan Markle on 19 May 2018 but notes that the extension only applies to the sale of alcohol.

Earlier this year, the Government consulted as to whether or not to extend licensing hours for the Royal Wedding of Prince Harry and Meghan Markle on 19 May 2018 and after the consultation period ended, the Government decided to make an Order to extend licensing hours on the following dates and times:

  • 11:00pm on Friday 18 May to 01:00am on Saturday 19 May
  • 11:00pm on Saturday 19 May to 01:00am on Sunday 20 May.

It is to be noted however, that the effect of this Order allows licensed premises to remain open until 01:00am for the sale of alcohol but it does not apply to the sale of hot food or provision of regulated entertainment.

Any restaurant, therefore, that wishes to stay open later and use the extended hours  may have to apply for a Temporary Event Notice if it wishes to sell hot food and similarly, advice will have to be taken as to whether any exemptions under the Live Music Act 2012 apply, or whether an application for a Temporary Event Notice is required for entertainment.

In announcing the decision, Amber Rudd said: “The Royal Wedding is a chance for communities across the Country to join together and celebrate this momentously happy occasion for our Royal Family and for our nation.  As shown by the support for the proposal to extend licensing hours, it is clear that the public back the idea of having more time to raise a glass to Prince Harry and Meghan Markle on a day of national celebration”.

The Home Secretary has special powers to allow licensing hours to be extended for a celebration period to mark an occasion of exceptional international, or local, significance and since the power was introduced in 2003, it has been used a number of times, including on the occasion ofthe Duke and Duchess of Cambridge’s wedding in 2011, the Queen’s Diamond Jubilee in July 2012 and the Queen’s 90th birthday celebrations in 2016.

If anyone requires advice as to whether or not a Temporary Event Notice is required on this occasion for the sale of hot food or provision of regulated entertainment, please contact me at andrew@www.woodswhur.co.uk.

Posted on by

Paddy Whur saves the Shindig Festival

As my current workload has been largely wrapped up with live music venues and festivals, I am very pleased to say that I have resolved issues on behalf of Shindig Weekender with the Licensing Authority and objectors in Yeovil.

My clients had attended a Licensing Sub-Committee for this year’s premises licence for the Shindig Weekender in May. As a result of opposition received from Councillors and residents, the hours of the premises licence were pulled back, to such an extent that the festival was about to be put at risk. If the hours had not been rectified, there was a real risk that my clients would not have been able to hold the festival that they wanted to, and this could have had a big impact on festival-goers attending Weekender.

Shindig Weekender is one of the Country’s few genuinely “boutique” festivals, presenting an opportunity to experience acts up close and personal.

This year’s line-up includes Soul II Soul, Stereo MCs, Mr. Scruff, Norman Jay and a huge undercard of fabulous talent.

As well as this, there will be a comedy and cabaret tent which is headlined by Phill Jupitus.

The event had sold out and there was obviously  a significant fear that, with the reduced hours, the line-up would not all be able to play at the times the organisers wished.

I was instructed after the initial Sub-Committee decision.

We lodged an appeal immediately to Yeovil Magistrates’ Court and were under considerable time pressure to resolve the issues to allow Weekender’s hours to be advertised and for the event to take place as promoted.

Fortunately, the Council were particularly proactive and were agreeable to meeting us on a “without prejudice” basis to discuss whether we could settle the appeal without the need for a contested hearing. None of the responsible authorities had objected to the application and there were a small number of local residents and one Councillor who had persuaded the Licensing Sub-Committee to prune the hours of the event. I am delighted that my clients’ acoustic expert and the very helpful Environmental Health Officer of Yeovil Council worked together to improve the event management plan in relation to the event and, in particular, the potential for noise nuisance from the festival.

A significant amount of work had to be undertaken very quickly but as a result of this, the Authority were persuaded to compromise the appeal and allow the hours that were applied for to be substituted for the shorter hours that had been granted at the Licensing Sub-Committee hearing.

This was a fabulous example of all parties working together to negotiate a workable resolution, without the need for a matter going to a contested hearing at the Magistrates’ Court. I hope everybody has a fabulous time at the Shindig Weekender in May.

Posted on by

Paddy Whur starts with a big win for the MJR Group

Contested hearings are always stressful, but when it is the first hearing for a new client, that adds significantly to the challenge. I have just being successful in extending the hours at the Tramshed, one of MJR Group’s major venues, against Environmental Heath, Police and Ward Councillors and local resident opposition.

The MJR Group is an events promotion and venue development company based in Bristol. They manage and own multiple venues in major UK cities, as well as promoting touring productions and festivals throughout the UK, Australia, New Zealand, Dubai and Ireland. They are one of my most interesting recent new client acquisitions and I am delighted to be acting for them. The MJR Group operate from the following venues:

  • The Engine Rooms, Southampton;
  • Marble Factor, Bristol;
  • Motion, Bristol;
  • The Globe, Cardiff;
  • Tramshed, Cardiff;
  • Dingwalls, Camden;
  • Plug, Sheffield; and
  • The Assembly, Leamington Spa

Our application for the Tramshed in Cardiff was to extend the hours of operation from Midnight to 3AM on 20 occasions a year to allow Club Nights to be operated at the venue, with quality, high-end DJ talent being booked for these events.

The company has invested over £1m in the refit of the Tramshed, which is a phenomenal premises on the outskirts of the City Centre in Cardiff. The former Tramshed had been derelict for a significant number of years before MJR Group took it over and invested heavily in it. The Police, residents and Ward Councillors had concerns that our extension in hours would not promote the licensing objectives of:

  • The prevention of crime and disorder;
  • The prevention of public nuisance; and
  • The promotion of public safety

The Police produced evidence of dispersal issues arising from the premises when live music events are finishing at midnight.

I was able to explain to the Licensing Sub-Committee that there would be significantly less impact from the events that my client wished to offer, on the basis that there would be a much more gradual dispersal from the premises from a club night than a live music event. The issue with live music events is that there is an immediate finish to the concert, with up to 1200 people leaving the venue very quickly. This wouldn’t be the case with the extended hours events, where there would be a much more gradual dispersal from the premises.

In addition, as a result of the application, my clients had agreed to offer a significant number of additional conditions to assist in promoting the licensing objectives. On top of all of this, they had devised significant new dispersal policies with the use of a rear area for taxi pick-up points and creating a new dispersal zone towards the City Centre and away from residential properties. Whilst the police still opposed our application, they were very fair during the hearing, telling the Licensing Authority that, although they didn’t think the extension in hours would promote the licensing objectives, they felt that the premises were not problematic, on the whole.

The incidents of crime and disorder at the premises were significantly low for the number of people that the premises have seen coming through the doors in the last 2 and half years since they have opened. The Licensing Sub-Committee felt, on balance, that they could allow the application in the terms that we sought, as long as the additional conditions that we offered were attached to the premises licence.

My clients offered to meet with Ward Councillors and residents to explain the nature of the operation of the premises and seek advice from the residents as to improving dispersal and preventing any nuisance issues arising from the premises. I am certain that this proactive approach toward the local residents and Ward Councillors will bear fruit, not only in reducing incidents of public nuisance, but also in securing the premises’ future as a community hub, as well as a live music venue.

Posted on by

Asbestos – Your duty to manage it

Two recent instructions by clients concerning exposure of their employees and contractors to asbestos has prompted me to discuss the issue in this edition.

Although the use of asbestos has been prohibited for a number of years in building and refurbishment works, it is still present in a vast number of premises across the country. Even premises which you consider to be relatively modern may well still present hidden dangers from asbestos.

Whether you own a building, are a tenant or, indeed, have some degree of control over a building without any form of contract or agreement, you will be deemed to have a duty under the relevant asbestos regulations. This means that you have an obligation to manage the threat from asbestos within the premises. Depending on the degree of control you have, this will cover all non-domestic premises and the common areas of domestic premises, such as halls and stairways.

I am constantly asked by clients about asbestos-related problems that can arise, particularly during refurbishment works. If you sublet a premises to a tenant who then carries out some refurbishment works or you carry out works yourself, there is a duty to cooperate with all the parties involved.

Normally, as the person owning or controlling a premises is best placed to understand what asbestos is present, there is an obligation on that person to share that information with those who potentially may come into contact with it, be that tenants or contractors or anyone else.

The law is quite clear on what you should you do: find out if there is asbestos in your premises and, if in doubt, make an assumption that some materials within the premises may contain it, in the absence of evidence to the contrary.

You also need to keep an up-to-date record of the location and condition of asbestos in the premises and assess the risk from it. This will allow you to prepare a plan on how you intend to manage that risk and then put that management plan into action.

In reality, it may be that if the asbestos is in good condition and is in an area that is confined, such as a locked room, that may be sufficient to manage the risk. If the asbestos is deteriorating, however, it may be that you need to secure the services of a licensed contractor to remove it or in some way manage it to prevent further deterioration.

No matter what steps you take, these need to be recorded and reviewed regularly.

Generally speaking, the best way to ensure that you are compliant is to commission a competent asbestos surveyor to produce a survey of your premises which confirms the presence or absence of asbestos-containing materials. Such a survey would effectively form the foundation of your management plan and any actions that will flow from it.

When you are commissioning work or allowing work to take place, you should share the survey and any other information that you have regarding the presence of asbestos and its condition with those who could be affected by it.

Importantly, you must always maintain a record of who you share information with and what information has been shared, to prevent any issues in the future whereby contractors or others deny being made aware of asbestos within your premises.

Clients are regularly caught out by their duty to manage asbestos and, as a result, expose themselves to civil claims by all those potentially affected by an exposure to the material, as well as prosecution for failures under the relevant regulations.

Don’t just assume that your premises does not have asbestos in it. You need to take positive action to check, to record what you find and plan accordingly.

Don’t let the first time you identify asbestos in one of your premises be when an employee or contractor is exposed to it, and you are faced with the consequences of this.

Posted on by

Gambling Commission publishes its views on FOBTs

The Gambling Act requires the Gambling Commission (“GC”) to provide advice to the Government on all matters gambling, including its effects on the public. On Monday, it provided its “formal advice” to the Department for Digital, Culture, Media and Sport on the review of gaming machines and social responsibility – which, as we all know, has focussed primarily on B2 machines, or Fixed Odds Betting Terminals (“FOBTs”).

The advice was not circulated by the GC as an update or in a newsletter, which I find surprising- I heard about it on the news on Radio 4 (some of you will know that this is my station of choice) – although it is available on the GC website, here: http://www.gamblingcommission.gov.uk/PDF/Review-of-gaming-machines-and-social-responsibility-measures-–-formal-advice.pdf

It’s fair to say that the GC’s advice has caused some consternation among those campaigning for a reduction in the maximum stake for FOBTs to £2. This is because the GC has opted for a stake limit “at or below £30”.

Some might think that this represents the GC sitting on the fence – after all, “at or below £30” could mean anything between £0 and £30 – but the GC is at pains to point out that the final decision is one for Ministers to make.

The GC’s advice centres around the need to reduce the risk of harm to consumers – who are the focus of its present strategy – particularly the vulnerable. It believes that action needs to be taken, not just by government, but also by operators and the GC itself. The conclusion in the formal advice is that “the case has been made for action to be taken on B2 machines to reduce the risk of harm, and that this should include a stake cut.”

So, why has the GC not fallen in with the £2 maximum stake being campaigned for so strenuously by campaigners? The answer it gives is that it has identified four criteria to take into account in setting any maximum gaming machine stake. These are:

  • Impacts on gambling harm – the GC is concerned that merely reducing the stake might encourage players to adopt riskier strategies, play for longer or switch to other gambling products, particularly online;
  • Categorisation of gambling premises and a concern that any proposed change might mean that a “harder” form of gambling product is available in arcades, bingo halls and pubs, which are less tightly regulated than the betting and casino premises in which FOBTs are currently allowed;
  • The need to preserve consumer choice and to avoid eliminating the very popular game of roulette from betting shops; and
  • The need to take everyone’s views into account, being those of stakeholders such as Parliamentarians, Local Authorities, operators, faith groups and local residents.

It is between these competing considerations that the GC says it is for Ministers to decide. However, its advice does seek to draw a distinction between B2 slot-type machines (for which it believes that there is a case for limiting stakes to £2) and those that offer roulette, for example – the most popular game played on B2 machines – (for which its view is that the maximum stake should be £30 or less).

The GC also believes that limiting stakes is not enough to deal with gambling-related harm, and its prevention: it favours a comprehensive approach, and believes that there is a “strong case” for making tracked play mandatory across all B1, B2 and B3 machines, giving consumers access to information that will help them keep track of their play and make informed decisions about whether to continue gaming.

We’ll be monitoring this proposal carefully, as it will affect a large number of operators. The GC’s formal advice presents various matrices relating to the costs and benefits of introducing tracked play on this scale, but admits that, so far, the GC has “only limited information on the costs”, so we will have to wait to see if and how this proposal develops.

The GC’s advice has been met with a great deal of disquiet from campaigners pushing for the maximum stake on FOBTs to be reduced to £2. Tom Watson, Labour’s Deputy Leader, called the advice “deeply disappointing”, and accused the GC of having “caved in to industry pressure”. Carolyn Harris, the Labour MP who chairs the all-party Parliamentary group investigating FOBTs, said that she was confident that “Government will see past this and do the right thing, as the moral argument has been made so overwhelmingly for £2 [stake]”. John White, Chief Executive of the anti-FOBT amusement machine industry trade organisation BACTA, also weighed in, saying that “whilst a stake reduction is a step in the right direction, merely reducing this to £30 is still dangerously high…With a 20 second play duration on FOBTs, the proposed £30 stake will generate a loss of £90 within one minute. Within 10 minutes it is £900… [this] does not do enough to protect the consumers who are vulnerable.”

The GC says that it has drawn on a “a broad evidence base”, including on data from the Responsible Gambling Strategy Board and 20 billion plays on B2 machines. BACTA have rejected this as being “drawn from a narrow interpretation of a limited range of evidence and [focussed] on the theoretical rather than the reality.”

Matt Hancock, the Culture Secretary, is rumoured still to favour limiting the maximum FOBT stake to £2, but he is apparently under pressure from the Treasury, who get £700m in machine gaming duty every year, a large proportion of which is represented by revenue from FOBTs.

A decision by Government is expected in the next couple of weeks and we will, of course, update you in future editions of our Newsletter.

Posted on by

Happy Easter from all the team at Woods Whur!

And in the blink of an eye it is Easter. It doesn’t seem like 5 minutes since we were breaking up for the Christmas holidays. It has been an unbelievably busy start to the year. All sectors seem to be particularly busy. James Thompson and Vinnie Schumacher have been tied up with the Uber litigation and are currently involved in a week-long inquest in Newcastle. The Regulatory practice at Woods Whur has really taken off since James joined us and he is not only servicing his own client base, but has also taken some significant instructions from long-standing clients of the firm. Unfortunately, from time to time, accidents can happen in licensed premises and it is really important to have first-rate systems in place so as to be able to deal with the regulatory fall-out after the event. What we have been learning from James is how important it is to be pro-active and not just re-active. We will be announcing some Regulatory and Licensing breakfast briefings for later in the year, so please feel free to book up for these when they become available.

There is a real buzz in Leeds and around the country, with new instructions significantly more numerous than in previous years. The recent news that some casual dining operators are struggling is bound to have an impact. Prezzo have announced that they are closing a number of units and we have already taken instructions to change premises licences from food-led offers to a wider leisure operation. This could have some very interesting consequences for premises which sit in Cumulative Impact Policy Areas. I have always been nervous about how CIPs can stifle development and keep potential new quality operators out of them. We have already started advising clients who are looking at sites in which they would need to remove restrictive conditions from a premises licence. These applications could well trigger local CIP – based objections and it will be interesting to see how the regulatory authorities view them. I have recently had a meeting with the Police and Licensing Authority in one town which has already started to look at the wording of its CIP. They have rightly assessed that there is the potential for a number of boarded-up frontages if they aren’t forward-thinking with their policies and approach to sites like this.

Live music venues appear to be flourishing and we currently have applications running in Cardiff, Birmingham and Bristol–it is fantastic to see operators investing in bespoke music venues and we are excited to be involved. I am also currently working with the operators of the Shindig festival in Somerset and that sector shows no sign of slowing down. I have, however, worked out that Yeovil is a long way from Leeds!

The gambling market is still moving on apace. Andy and Anna are both very busy with exciting casino projects in London and Brighton in particular: the sector looks like it is in for an era of change and development. Anna continues to receive fantastic instructions in the lotteries sector which never seems to slow down, and we all have interesting instructions in the on-line sector at the moment. Don’t forget to register to come along to our gambling conference and networking event at the Hippodrome Casino in Leicester Square on 8th May.

Please email Sarah@www.woodswhur.co.uk if you would like to attend.

There are not many spaces left so please do not miss out if you are intending to come along.

There are always challenges to face in the leisure industries and the betting industry is waiting with bated breath to see what the Government does about stakes and prizes for fixed odds betting machines. Anna deals with this in her detailed article on what could be a game-changer for the betting boys. It is a very interesting balancing act, that the Government must now wrestle with.

We are delighted that we have a new solicitor in the team. Leigh Schelvis has joined us from another Leeds firm and has already become immersed in our case load. Leigh is a two year-qualified lawyer and has strong connections with many of the independent operators in Leeds (working for them…not just socialising in them.) He will be supporting all of the senior lawyers at Woods Whur and, in particular, helping me in the Leeds and Yorkshire markets. We all hope that Leigh has a long and enjoyable career with us. Being Australian, we have been able to tease him about the disgraceful ball-tampering by his Country’s cricket team in South Africa. That said, our Kiwi, Vinnie Schumacher, has the bragging rights after we lost the first cricket test in New Zealand.

Let’s hope we do not see “the Beast from the East 3” over Easter and that all of our clients have a profitable long weekend.

 

Posted on by

Warrington fight gets the green light…Paddy Whur secures new premises licence for Elland Road

I am delighted that I have secured Leeds United a new premises licence for the Josh Warrington against Lee Selby IBF world championship featherweight boxing bout at Elland Road Stadium on 19 May.

Josh is a lifelong Leeds United fan and for him to get his tilt at this world belt on the pitch at Elland Road in May is fantastic for him and the City.

We had to work quickly and engage the relevant authorities and local Ward Councillors in pre-application meetings.

It has been really encouraging to see how the Police, Local Authority and all those charged with maintaining safety at the venue have worked with us to turn this round so quickly to allow the fight to take place.

The licence will also accommodate Leeds United’s exciting plans for some major music events to take place at the ground.

Everyone at Woods Whur wishes Josh all the best in what will be a real battle to take the belt.

 

Posted on by

Health and Safety Sentencing – 2 years on!

As those of you who have been reading my commentary on the sentencing guidelines since their introduction will know, there has been a significant rise in the fines handed down by the Courts since the guidelines came in two years ago.

In effect, the guidelines set a tariff for the Courts to follow when dealing with offenders under health and safety, corporate manslaughter and food safety legislation.

Recently released figures show that, in the period 2015/2016 before the guidelines came into effect, total fines imposed were £38.8 million.

Contrasting this with the first full year when the guidelines were in operation, a rise in fines to £69.9 million occurred.

This gives an average fine per offence of £126,000. In order to put that into context, when I started practising in this area, the average fine for a health and safety offence nationally ranged between £5,000 and £7,000.

Whether you operate in the private or public sector, whether you are a small or a large organisation and whether you are prosecuted because someone is injured or killed or where just a risk exists and no injury has been caused, the fine levels are significant.

I know I am in danger of repeating myself, but you cannot prepare and protect yourself enough in terms of health and safety as well as food safety.

Take expert advice, review your documentation, police your systems and record the results. The best way to prevent having to pay a significant fine is ensuring that you never have an accident or risk in the first place. There is no fool-proof solution, but robust systems, equally robustly policed are your best defence.