Understanding Premises Licences Under the Licensing Act 2003
This content provides detailed information on premises licences under the Licensing Act 2003, covering topics such as types of licensable activities, licensing objectives, regulated entertainment, and issuing authorities. It includes practical considerations, case studies, appeals, and the importance of promoting public safety and preventing crime and disorder.
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Licencing Update Belinda Moore Weightmans LLP www.emlawshare.co.uk
Contents Premises Licence Variations of premises licences Review of premises licences Practical issues to consider Review of licences Case studies Hearing Appeals Summary review Alcohol sales ASBOs/antisocial behaviour injunctions www.emlawshare.co.uk
Premises licence www.emlawshare.co.uk
Premises licence The Licensing Act 2003 (LA 2003) defines the types of activities which require a licence under the Act (s1(1)). It consolidates and defines four specific types of licensable activity a) The sale by retail of alcohol b) The supply of alcohol by or on behalf of a club to, or to the order of, a member of the club c) The provision of regulated entertainment d) The provision of late night refreshment Authorisations to carry out licensable activities are granted by licensing authorities Regulated entertainment is caught by the Act www.emlawshare.co.uk
Premises licence The aim of the Licensing Act 2003 is to promote the four licensing objectives which are: 1. The prevention of crime and disorder 2. To promote public safety 3. The prevention of public nuisance 4. The protection of children from harm www.emlawshare.co.uk
Premises licence Regulated entertainment is entertainment provided with a view to profit, inclusive of charity fund raising. The question is whether there was an intention to make a profit. Examples include plays, showing of films, all indoor sporting events, music events unless incidental to some other event Live Music Act 2012 Exemptions may include religious places of worship, garden fetes, vehicles in motion www.emlawshare.co.uk
Premises licence When thinking about restrictions concerning certain premises such as garages and service stations, consider: R v Liverpool Crown Court Ex p. Goodwin (1998) The question must be what was the intensity of use by customers at the premises? www.emlawshare.co.uk
Premises licence Q. Who issues the licence? The authority with the greater part of the premises, in which area the premises is situated. Q. Who can apply for a licence? Anyone who carries on, or proposes to carry on, a business involving licensable activities on the premises. Q. How is an application made? In the appropriate form prescribed by the Secretary of State to the relevant licensing authority and accompanied by: an operating schedule, a plan of the premises, consent of an person nominated as designated premises supervisors, the appropriate fee www.emlawshare.co.uk
Premises licence The applicant must publish a notice on at least one occasion not more than 10 working days after submitting the application to the authority, either in a local newspaper, newsletter, or similar document. Unless any relevant representation and made to the authority, the application must be granted www.emlawshare.co.uk
Premises licence Made by a responsible authority relating to the effect of the grant of the licensing objectives. It will be the decision of the licensing authority as to whether the applications are irrelevant or not. What are relevant representations? An irrelevant representation would not be directly related to the application such as: A vexatious application based on business rivalry A frivolous application considered to be lacking in seriousness www.emlawshare.co.uk
Premises licence Applications authorising the sale of alcohol must state: details of a designated premises supervisor who is holder of a valid personal licence Every sale of alcohol must be made or authorised by a personal license holder Schedule 4 of the Policing and Crime Act 2009 introduced other mandatory conditions applicable to all premises licences authorising the sale or supply of alcohol: www.emlawshare.co.uk
Premises licence Reasonable steps should be taken to ensure staff on the licensed premises: Do not promote games or promotions encouraging excessive drinking Ensure tap water is available Put in place an age verification policy Ensure the availability of smaller measures of alcohol www.emlawshare.co.uk
Premises licence The applicant must be informed of a successful/refused application, and on approval, should be issued with the licence and a summary of it Q. How long does the licence last? Unless transferred, surrendered or revoked, it will last as long as the licensee continues to operate the business. If the license was for a specified time, it will expire on completion of that time. Licensing authorities cannot time limit a premises licence. The applicant must ask for this in their application. www.emlawshare.co.uk
Variation of licence www.emlawshare.co.uk
Variation of premises licence The holder of a premises licence can apply to vary the licence to include a new activity or extend the licensing hours, or vary substantially the premises to which the licence relates. The application to vary should be made in the same way as a new application, and if no relevant representations are made the variation will be granted. www.emlawshare.co.uk
Variation of premises licence If relevant representations are made, the licensing authority must arrange a Hearing, unless representations are deemed frivolous vexatious , or all parties agree to the Hearing being dispensed. The licensing authority should consider, if appropriate for the promotion of the licensing objective, the modifications or rejection of the conditions of the licence. www.emlawshare.co.uk
Variation to premises licence Variation of licence to supply of alcohol from community premises: Where a management committee holds a premises licence in respect of community premises, it can vary the licence, and replace two mandatory conditions with an alternative condition. The condition to be replaced are those requiring the premises to have a designated premises supervisor, and for the sale of alcohol to be made or authorised by the management committee The Chief Officer is the only person who can object to such an application and only on the basis that he is satisfied that granting the application would undermine the crime prevention objective. www.emlawshare.co.uk
Variation to premises licence Provisional statement Intended for use in relation to premises being used, extended or altered for licensable activities. This allows a person interested in the premises to obtain an indication of the likely effect of the intended licensable activity on the licensing objectives. This application must be advertised in the same way as a premises license. www.emlawshare.co.uk
Variation of premises licence Transfer of licences Can be made with immediate effect, with the consent of the holder of the premises licence s.44 The licensing authority must reject application unless: i) The transfer application has been given immediate effect ii) The existing licence holder has agreed to the transfer iii) The applicant has been exempted from the need to obtain that consent www.emlawshare.co.uk
Minor variations There is no real definition of minor variation although the Act prohibits certain applications from being subject to minor variations such as: Transfer of a licence or certificate Specify a new Premises Supervisor Add the sale, by retail or supply, of alcohol at any time between 11pm and 7am Authorise an increase in the amount of time on any day during which alcohol may be sold, by retail or supply. www.emlawshare.co.uk
Minor variations The application must be made on the prescribed form, submitted to the licensing Authority, advertised on or near the premises concerned for 10 working days. A decision should be reached within 15 days of receipt of the application. After this time the application will be deemed to be rejected, although an extension of this time can be agreed with the applicant. Power to make the decision lies with the Licensing Officer, who should consider if the variation adversely affects any of the Licensing Objectives, in which case it will be refused, and the fee returned. www.emlawshare.co.uk
Minor variations Change of supervisor: The holder of a premises licence can apply to substitute a different person as the designated premises supervisor The application should be accompanied by signed consent of the proposed premises supervisor, and the police notified. Any designated premises supervisor can give notice to the Local Authority to stop acting www.emlawshare.co.uk
Practical issues www.emlawshare.co.uk
Practical issues to consider Death of the premise licence holder A premise licence will lapse if the holder dies or becomes mentally incapable or insolvent. Or, in the case of a company, if it has dissolved. An interim authority can be obtained by the licence holder representative and should be passed to the chief officer of police within 7 days. This will reinstate the lapsed premises licence. www.emlawshare.co.uk
Review of licence www.emlawshare.co.uk
Review of licence The Act provides for the licence of premises causing problems to be reviewed and, if necessary revoked, suspended or amended. The basic procedure: An applicant seeking review must give written notice of the same application to the licensing authority, and give a copy to the premises licence holder, and to each responsible authority The authority must reject an application unless it is relevant to at least one of the licensing objectives, or is, frivolous, vexatious, or repetitious. www.emlawshare.co.uk
Review of licence An applicant seeking a review must give written notice of the application to the licensing authority, who should advertise the application and invite representations from responsible authorities. This must be advertised in the appropriate form, at least A4 in size, for not less than 28 days post application. The licensing authority must arrange a Hearing at which all parties may put their case. www.emlawshare.co.uk
Review of licence Following this Hearing the authority may take the following steps: Modify the condition of the licence Exclude a licensable activity from the scope of the licence Remove the designated premises supervisor, where they authorise the sale of alcohol Suspend the licence for a period not exceeding three months Revoke the licence www.emlawshare.co.uk
Review of licence Any party to the Hearing may appeal against the decision within 21 days of being notified of it The review decision does not have effect until the time for bringing an appeal has expired When considering a case regarding conditions imposed on a premises licence at the second stage review for underage sales of alcohol, the High Court made the following observation: www.emlawshare.co.uk
Review of licence R v Hinkley Magistrates Court & Blaby DC (2011) L.L.R. 669 on a second review, rather than start with a consideration of the evidence and what was proportionate for the promotion of the licensing objectives, there would be a presumption of revocation. It would be of no consequence that the revocation was not imposed, but that revocation was a starting point. www.emlawshare.co.uk
Case examples www.emlawshare.co.uk
Some current case examples: Case study 1 County of Suffolk loses licence after knife incident Feb 2012 A pub in the centre of Ipswich lost its licence after a number of incidents including some being threatened with a carving knife. Police revoked the licence in order to maintain public safety. As per the procedure discussed, Licence holder Scottish & Newcastle said an appeal could be lodged. www.emlawshare.co.uk
Some current case examples: Case study 1 continued The police became involved in February, when a noise abatement officer from Ipswich Borough Council was confronted by an aggressive crowd at a private party. He said police began to work with the pub but further incidents led them to believe that it was not a "safe place for the public". After hearing the submissions, Ipswich Borough Council's licensing sub- committee determined the licence should be revoked. A spokesman for Scottish & Newcastle said, "We understand we have 21 days within which an appeal could be lodged. We are currently in the process of liaising with our legal representatives." www.emlawshare.co.uk
Some current case examples: Case study 1 continued The Appeal -August 2012 Scottish & Newcastle Pub Company, which owns The County of Suffolk in St Helen s Street, made an application before magistrates in Ipswich to lift a licence revocation order made in May. During the unopposed application, magistrates agreed to replace the order with another suspending the licence temporarily; Magistrates heard the underlying objective of the licence revocation in May was to get the tenant evicted and replace them with a new one, so the pub could be run properly. www.emlawshare.co.uk
Some current case examples: Case study 1 continued. The Appeal -August 2012 Police, the borough council and the brewery were all said to be in agreement the licence should now be suspended rather than be revoked. After May s revocation hearing Pc Craig Lannigan of Ipswich s licensing unit, said: This result will resonate with the licensed trade in Ipswich and will send a strong message that licensees have strict responsibilities under the Licensing Act and should continually monitor their performance to ensure the public are kept safe while enjoying a night out The Pub has since reopened under new management. www.emlawshare.co.uk
Some current case examples: Case study 2 Closure of Long bar, Leicester A city centre bar that police said was like a "boxing ring" because of the number of violent incidents inside and outside the premises has had its licence revoked. A member of the force's licensing team told the Town Hall hearing how customers had been involved in 19 violent incidents in five months, between July and December. "There is responsibility for the venue management to prevent these issues, which they have failed to do. They have worked with us but what they have done does not work. www.emlawshare.co.uk
ANd9GcQH0qJuaH8XrZgJjkea34aXklG-EdAFoASe0g3LEgAv3-8gcWdO Some current case examples: Case study 2 continued Licensing committee chairman Councillor Adam Clarke said: "We have a lack of confidence that the Long Bar owners are able to uphold any of the licensing objectives. Therefore, we have no choice other than to revoke the licence." The owners have 21 days to lodge an appeal once they have received formal notification of the decision. The bar can remain open for that time or until the result of an appeal, if one is lodged. www.emlawshare.co.uk
Case Study 2- timetable of events: September 7, 2.30am: Men fighting. One man had ear bitten. September 15, 2.50am: Male customer found in possession of cocaine. July 25, 3.05am: Fight outside. Victim with head injury. August 17, 23.55pm: Group of males fighting inside and outside. One arrested for carrying offensive weapon. October 5, 5.34am: Male unconscious after fight. October 13, 4.54am: Man stabbed four times inside bar. September 1, 5.27am: Four 16- year-olds who had been drinking inside and fighting www.emlawshare.co.uk
Case Study 2- timetable of events continued : October 24, 3.29am: Man with broken jaw after fight inside and outside. November 30, 4.54am: Large- scale disorder on street. Twenty officers involved, four injured. December 7, 6.02am: Door staff member arrested for possible assault. Alleged victim arrested after assaulting police. www.emlawshare.co.uk
Hearing www.emlawshare.co.uk
Hearing Whenever relevant representations or objections are made to an application, or if an application has been made for a review of a premises licence, a Hearing has to be held, unless all parties consider it unnecessary. Before a hearing A Hearing will normally need to be commenced within 20 working days of the end of the period for making Representations. However this can be extended where it considers public interest, although notice of this should be given to all parties. www.emlawshare.co.uk
Hearing Mediation It may be possible to seek to mediate between an applicant for a premises licence and other parties to avoid the Hearing. This can be done by correspondence, or by convening a meeting between the parties with an officer who will facilitate, but not pass decisions. The licensing authority will arrange a date, time and location for the hearing, whilst reviewing the application to see of there will be points on which clarification will be required at the Hearing www.emlawshare.co.uk
Hearing This hearing can be dispensed with at the agreement of all parties, if confirmed in writing. Notice of the Hearing should be given no later than 10 working days before the Hearing, and should contain: The rights of the parties at the Hearing and the consequences if a party does not attend or is not represented at the Hearing The procedure to be followed at the Hearing Any particular points on which the authority considers it will want clarification at the Hearing www.emlawshare.co.uk
Hearing On receipt of the notice the parties should, no later than 5 working days, give a notice to the Authority stating: Whether they intend to attend or be represented Whether he considers a hearing to be unnecessary The Authority may adjourn a Hearing to a specified date should it be necessary in expediting an agreement between parties www.emlawshare.co.uk
Hearings Hammersmith & Fulham LBC v Food Express Ltd (2010) L.L.R 292 Applicant arrived late to a Hearing as the decision to reject a 24hr alcohol licence was announced. They appeal the decision on the basis there had not been a fair Hearing as the parties had only waited 10 minutes before commencing. This was not upheld on the basis that the time to wait is for the sub committee to decide. www.emlawshare.co.uk
Hearing Shortly before the Hearing, an Officer should prepare a report determining the application, so as to familiarise themselves with the case. This should include: the nature of the application any relevant background application Details of the promotion of the four licensing objective 1. The prevention of crime and disorder 2. Public safety 3. The prevention of public nuisance 4. The protection of children from harm www.emlawshare.co.uk
Hearing Q. What happens at a Hearing? The procedure is generally at the discretion of the licensing authority but must conform to the regulations. At commencement the authority will explain the procedure to the parties, and consider any request Any hearing must conform to European human rights legislation. Any licensing authority can still be subject to Judicial Review, even if they follow the Regulations, if their conduct does not promote natural justice and fairness. www.emlawshare.co.uk
Hearing Reg 23 states the Hearing will be in a discussion format held by the authority, without cross examination unless the authority considers it necessary. Any disruptive persons will be requested to leave the hearing and may be: 1. Refuse to permit that person to return 2. Permit him to return only on conditions 3. They may continue to make written submissions www.emlawshare.co.uk
Appeals www.emlawshare.co.uk
Appeals An applicant who has a licence/attached conditions refused may appeal the decision. An appeal must be commenced within 21 days of notification of the licensing authority s decision. The Magistrates Court can make an Order for costs of the appeal. R v City of Magistrates Court (2011) L.L.R. 105 Appeals are a rehearing, therefore new evidence can be introduced www.emlawshare.co.uk
