October 2007

Legal News

october 2007

operational, Legal News, October 2007, COMMENTS

There have been a variety of recent legal developments which are worthy of note and indeed mention in this month’s article. In the current era of licensing there seems to be a relentless stream of legislative changes which – to a greater or lesser degree – present as a challenge, and in some cases even a threat, to operators of late night premises. The arrival of the Licensing Act 2003 seems like a long time ago regardless of the huge upheaval which it caused and largely due to the succession of legislative changes which have taken place since.

One of the major ones was obviously the Smoking Ban which kicked in on the 1 July 2007. This has obviously been covered in recent articles. I thought, however, it might be of interest to you to be aware of some of the experiences which we have had in dealing with enforcement authorities with regard to this issue.

It was never realistically anticipated that all authorities would deal with the legislation in the same manner, neither in terms of the advice they would give to operators nor in terms of the way that they would ultimately enforce the legislation. Bearing this in mind, we have come across some interesting and unusual examples.

Some local authorities have taken it upon themselves in the course of the legally required review of their licensing policy to make stipulations in terms of smoking. We have seen policies which indicate the minimum distance that a shelter must be positioned away from the premises and others making stipulations to avoid smoke wafting back into the main body of the premises where the shelter is located near to doors or windows.

None of this is backed up in the regulations under the Health Act. These regulations simply dealt with the maximum area of walls which can support a roof where smoking is to be permitted within the structure. Licensing policies have no business whatsoever going further than Parliament have seen fit to.

Another interesting interpretation is where one major local authority has indicated that it will not be taking any enforcement action against individuals smoking in contravention of the ban. It will rather concentrate its efforts upon the operators of the premises involved and look to prosecute them for failing to prevent smoking rather than the individuals for actually smoking. Their suggestion, by way of justification, is that this is due to concerns over the safety of Environmental Health Officers who challenge individuals with regard to their smoking when they have clearly had a few drinks. They seem to feel that it is safer and easier to confront the manager of the premises who is likely to be much more reasonable. Should this prove to be the case then it seems to me that it is completely the wrong approach. No authority has the ability to pick and choose which aspects of a piece of legislation they like and which they do not. Surely it has the duty to enforce all provisions equally?

On many High Streets there will be a row of premises – licensed or otherwise – which effectively share a frontage which will probably just be cordoned off to delineate individual areas. What if this whole frontage is covered by a roof and, at each end of the row of premises, is a solid wall jutting out to the extent of the frontage?

Looking at the area as a whole, it would seem to be substantially enclosed yet the individual frontages are not as they would have no walls supporting the roof over the frontage of their own individual premises. Some authorities are taking a more pragmatic view than others in terms of issues such as these.

We have also come across an example of the Police threatening to close down premises due to the number of people congregating on the pavement outside having a cigarette. It cited public safety as the reason which forms no basis for any Closure Order I am aware of.

It must surely be accepted that the arrival of the Health Legislation – with the wisdom of the Government behind it – was bound to lead to a knock on effect in terms of people being outside licensed premises. What is the operator realistically supposed to do in accommodating those who want to smoke?

Previous articles have also referred to the proposed minor variation process which will hopefully be introduced in due course into the Licensing Act 2003. This will enable matters such as minor interior alterations to be dealt with without the requirement for a full variation application. Whilst some licensing authorities are being pragmatic at the present time in permitting such alterations to take place without a variation being required, many are not and the cost of permitting such alterations is therefore greater than it need be.

In respect of this issue a consultation document is expected to be forthcoming in November of this year. It will examine the various options that are open to the Government in leaving this area untouched or changing it to enable some more flexibility. The main area of debate at the moment seems to be whether the licensing authority should be given full discretion in determining what a minor variation is or whether they should be provided with a list of applications that either do or do not amount to minor variations. There are clearly difficulties with each approach with the former arguably leaving less pragmatic authorities to view everything as major rather than minor and therefore requiring the operator to go through the full variation process.

This would effectively make no difference to the current situation. Equally, the latter option might lead licensing authorities to take a very black and white view. If something is not mentioned on the list of applications which may be considered minor then it must be major. We will see what ultimately transpires.

Finally you may have heard mention of the expedited power of review. This arrives under the Violent Crime Reduction Act of which some provisions are already in force. These particular provisions have come into force on 1 October. Essentially, if a Senior Police Officer issues a certificate indicating that a particular premise are associated with serious crime, serious disorder or both, an expedited review will follow. This enables immediate sanctions to be issued against the premises at the request of the Police which largely mirror the powers of the Licensing Committee on full review.

The premises hours could be curtailed or its ability to sell alcohol suspended without the operator having an option to have their say! To be fair, if the operator decides to challenge the ‘interim steps’ a hearing will be fixed very quickly indeed where both sides of the argument may be aired. The new provisions therefore operate in a not dissimilar manner to Closure Powers. The Police effectively decide for themselves what needs to be done with a formal decision following from the Licensing Committee when the damage has arguably already been done!

Words: Jeremy Allen

From: October 2007 Issue

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