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Licensing initiatives from surprising quarters

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Licensing initiatives from surprising quarters.

Getting away from the flurry of stories on the Government’s consultation on their proposed changes to the licensing law (a done deal I think!), a couple of unrelated stories in the Morning Advertiser caught my eye. And I very much doubt they will have been highlighted by the Daily Mail.

The first is the initiative by Nottingham County Council to support and encourage pub lunch schemes for pensioners. Much more interesting than sitting at home alone eating your meal on wheels! The lunch clubs offer set menus for fixed prices of between £5 and £6. What better than to meet up with fellow pensioners down at the local for pie and chips at lunch time? And, what a boost to trade for those pubs getting in on the act! The County Council have so far piloted support for 3 pubs with contributions for marketing materials and menus. If successful, and I have no doubt it will be, they intend to roll it out county wide. Let us see this idea taken up nationwide, as it will help support hard pressed pubs and go a long way to make them the centre of their communities once more. It will also do a great deal for the pensioners’ social life and general well-being. Nottingham County Council are to be applauded for their pro-active approach which provides a “win win” scenario for all concerned.

The second news story is the decision by Bath University Students Union to ban pubs and clubs from advertising drinks promotions at the annual Freshers’ fair, whilst cutting the numbers of late night venues exhibiting, and raising its’ own prices. Who said students are not responsible? I was also impressed to read that the Bath Students Union has been awarded gold status in the Best Bar None awards, and that the National Union of Students has teamed up with the Drinkaware trust to promote sensible drinking amongst students.

It is a great pity that the tabloids and the Government are hell bent on convincing the country that all is negative as far as alcohol is concerned. Perhaps greater support and acknowledgement for initiatives like those in Nottinghamshire and Bath would reap greater rewards.

Nigel Musgrove

Licensing law Specialist

Police to take over licensing?

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Police to take over Licensing?

Perhaps it is going too far to suggest that the Police are taking over licensing, but the trade would be forgiven for thinking that the pendulum is about too swing too far in favour of the Police.

Here I am referring to the Home Office consultation on revamping the licensing laws to put more power in the hands of local Police and communities. A few weeks back I blogged about the Derby Police call for a freeze on new licences in the city. I said that under the existing law that was not possible, but watch this space. The Superintendant knew what was coming. The changes now proposed would allow just such a scenario.

So what is the consultation all about? For a start the consultation period is only 2 months and over the holiday period, from 6 July to 8 September. And the Home Office has made it clear that as the reforms are in the Coalition Agreement they will only be talking about the detail of implementing the proposals. The proposals themselves seem to be set in stone.

So what are we in for? Basically, we are looking at a massive shift in licensing philosophy, which will put all the power in the hands of the Police, local communities, and licensing authorities. Such are the measures that the trade will have little scope for argument against any attack from these bodies.

The main proposals are:

1. Licensing authorities will become “responsibe authorities” and will therefore have the power themselves to refuse an application or call for a Review of a Premises Licence.

2. Licensing authorities will no longer need to justify their decisions as “necessary” for the promotion of the licensing objectives. The standard will be “appropriate”.

3. Licensing authorities will have to accept all the representations and notices from the Police, unless there is clear evidence that they are not relevant. This is the most worrying proposal in my view.

4. The appeals process will be limited, and this will make the licensing authorities and Police more difficult to challenge.

5. Applicants will have to demonstrate how granting an application will impact on the local area and how they will deal with any negative impact.

6. Any person or body in England and Wales can object to an application wherever it is made.

7. Health bodies will become “responsible authorities”, and so can object to applications, and the prevention of health harm will become a licensing objective (as it now is in Scotland). Perhaps this is the thin edge of the wedge as far as the future of alcohol sales is concerned. Is booze going the same way as tobacco?

8. The new power which allows licensing authorities to make “Early Morning Restriction Orders” to prohibit the sale of alcohol between 3 am and 6 am will be extended to allow any hours to be prohibited if considered “beneficial” for the promotion of the licensing objectives.

9. The whole idea of avoiding set hours will be abandoned, so staggered hours, zoning, or fixed closing hours will be possible, giving licensing authorities the “power to make decisions appropriate for their area based on local knowledge”.

10. It will be much easier for licensing authorities to introduce Cumulative Impact Policies. These restrict new applications and variations in a given cumulative impact zone. Alcohol Disorder Zones will be abolished. Not one licensing authority has introduced one due to the cost and doubtful benefit.

11. There will be a huge change for Temporary Event Notices. I am not aware of any abuses to the system but certain police authorities in the largest cities have never liked them. Already in the pipeline is a change coming into force in October increasing the time for Police objections from 48 hours to 2 working days. The proposal is to:
a. increase the time for objections to 5 working days,
b. to require notices for premises with an existing Premises Licence to give a minimum of one month’s notice, and other notices 15 working days,
c. to allow any “responsible authority” to object (not just the Police as at present),
d. to allow existing licensing conditions to be attached if the premises concerned already has a Premises Licence,
e. to allow objections on any of the 4 licensing objectives (not just crime and disorder as at present),
f. to restrict a Personal Licence holder to just 12 in a calendar year (currently 50), (this could impact on event traders)
g. Restrict the number of notices for a single vicinity to just one. This could have huge implications for fairgrounds and other outside venues which may in future require a Premises Licence.

12. For the persistent sale of alcohol to children (twice in any 3 month period) the maximum fine will be increased fro £10K to £20K, and the voluntary closure provisions will be increased from up to 48 hours to a minimum of 168 hours (7 days), with a new upper limit to be decided!!! This is what they were hinting at when saying they were giving the Police new powers to close licensed premises. In the current economic climate this would be a death sentence for many. And even then there will be an automatic Review of the Premises Licence in every case.

13. A ban on “below cost sale” of alcohol. This is aimed at the supermarket promotions which are seen as fuelling binge drinking through the pre-loading culture. What this will mean in practice is difficult to say. There is a danger that any scheme would be in breach of EC trade and competition laws. They are looking at “net invoice price”, or “average cost”, or making it a licensing condition not to sell it below cost.

14. Allowing licensing authorities to set fees on a local level to allow “full cost recovery”. This could herald a massive rise in fees in large cities with aggressive licensing authorities. Given the expected significant increase in work as a result of the proposals mentioned above, this must be very worrying for a hard hit trade. And to add further misery, licensing authorities will have the power to impose a late night levy on all premises open after a specified time.

15. The only good news for the trade is that the recent additional 5 mandatory conditions (the last 2 coming into force in October) may be axed after consultation, and the application forms for a Premises Licence and the Temporary Event Notice will be simplified. But this will be little comfort given the draconian powers given to the Police in particular.

The biggest fear for the trade is that local Police are rarely impartial. They are constrained by a tight budget and are being asked to make significant cuts. They see policing town centres late at night as being a huge drain on their resources. They are not concerned with a vibrant economy or other social and economic drivers. Their budget restrictions will motivate them to do everything possible to limit opening hours of licensed premises. It is also clear that the Police are not always the best when it comes to knowledge of licensing law and how to run a licensed business. The tales of recent World Cup Police intervention in certain areas are a good example.

It is clear that the trade is in for a very rough ride and even the best run establishment will have plenty to be worried about. Outside agencies will be interfering more and more in their business, and the cost to businesses is set to rise significantly. I see little evidence of removing red tape as far as the trade is concerned.

We will have to wait until the Police Reform and Social Responsibility Bill is published in the autumn before we know how much the government has listened (probably not at all) and what lies ahead. What we know already is bad enough but the devil will be in the detail.

Nigel Musgrove

Licensing law Specialist

Control over alcohol licenses

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Earlier this month the Morning Advertiser ran a story about the Derby police chief wanting a temporary ban on new licences in the city. It immediately struck me that the Chief Superintendant either did not know his licensing law or he was making a point to provoke a change to the existing law. So what is the law?

Quite simply the licensing authorities have no power whatsoever to impose a blanket ban on the grant of new Premises Licecenses to sell alcohol. The Licensing Act clearly states that each application must be considered on its own merits. Only if objections are made will a hearing take place, and only then does the licensing authority have the power to refuse the licence, and to refuse it it must consider that to grant the licence would undermine one or more of the licensing objectives. To remind you these are the prevention of crime and disorder, the prevention of public nuisance, public safety, and the protection of children from harm. The licensing authority must consider whether any additional conditions would allow them to grant the licence. Refusal of the licence is the last resort.

Some people may think that if the licensing authority has declared a saturation zone in it's licensing policy, that this will allow them to impose a blanket ban. Not so. Each application must still be considered on it's merits. The ony difference is that if there are objections to the applicaton, it is for the applicant to show that the grant would not undermine one or more of the licensing objectives, rather than the objector to show that it would.

Of course all this may change when the government complete it's review into the Licensing Act. It has promised to strenghthen the powers of the police and licensing authorities. The news just in that the licensing portfolio is after all moving back to the Home Office from the Department for Culture, Olympics, Media and Sport, will send a shiver down the spine of all those in the industry who fear that the Home Office has it in for the trade.

Nigel Musgrove

Licensing law Specialist

A call for optimism for SMEs

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The Emergency Budget showed that the government are seriously committed to reducing the budget deficit, primarily through public sector cuts and an increase in VAT.

Predictably the politicians have since been arguing about whether this is too much too soon (with the risk of a double-dip recession) or exactly what was needed due to the frightening increase in the deficit. Whilst all this argument makes good headlines for the politicians, the truth is that no one can say for sure how the economy will perform.

This leaves SMEs in a difficult position when it comes to planning for the future. Will there be growth or not? When will it be time to start investing in new projects and jobs? I believe that the uncertainties will mean that many SMEs will still be focusing on survival or slow growth rather than investing heavily. What is needed is an injection of confidence into the economy and the politicians won’t be providing that at the moment: the government needs to stress how bad things are to minimise opposition to their spending cuts and it serves the opposition to argue that government policy will only make things worse.

Nevertheless, some of the statistics seem encouraging. The last published insolvency figures (for the year to April 2010) showed an overall drop in business insolvencies compared to the year before (11.4%), with businesses between 51 and 100 employees showing the most insolvencies and businesses under 26 employees the least.

According to Experian, micro businesses with 1 to 2 employees are fairing best, and this correlates with Companies House statistics that new company registrations are up 10% compared to the year before. It appears that, as in previous recessions, many people made redundant are now starting their own businesses. Some of the budget measures will assist these small firms.

Business confidence overall will not return until we see a period of economic stability and steady growth. I fear that this will not happen until we have seen how the public sector cuts and VAT rise affect demand overall, and it will still be at least another year before we will know that for sure.

However, I believe that what SMEs really need now are some politicians to champion our sector, and to start talking in more optimistic terms. We know things are still bad; what we need is to see the light at the end of the tunnel.

Gary Cousins
Business Solicitor

Military ID to buy a pint

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It seems strange that Military ID may not be accepted as poof of age when buying alcohol. You may think that Military ID is the most secure form of ID. But for a long time the acceptable forms of ID have been a Passport, European Driving Licence (with photo), and a PASS accredited card.

All the training and literature and signage has been geared to these forms of ID. And many Premises Licences will have conditions endorsed on them insisting on specific accepatble forms of ID, and Military ID is seldom among them, if at all. So the Challenge 21 schemes and the like will not help our young soldiers who are fit to fight and die for our country but cannot use their Military ID to buy a pint. It's a strange world!

But change may be afoot. Perhaps the sacrifices of our young lads (and lasses) is striking a chord of common sense. The British Beer and Pub Association is backing the use of Military ID as an acceptable form of ID for licensed premises. The issue will probably only occur near barracks, but perhaps there should be a recognition everywhere that Militray ID is ok. At the end of the day it is a matter for the management of premises which ID they will accept (subject to any licence conditions), but perhaps it will not be too much of a burden to include Militay ID in training so it can be accepted by bar staff and off licence staff.

It always bemuses me that in this country we can marry at 16 and raise a family and at 17 can go to war and die for our country, but until you are 18 you cannot buy alcohol. As I said it is a strange world.

Nigel Musgrove

Licensing Law Specialist

Licensing consultations steaming ahead

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The new government is moving ahead rapidly with consultations in a number of areas effecting the licensed trade. It is rumoured that the fast track review of the licensing laws will result in measures being introduced in parliament in the autumn.

And let us not forget the promise to get rid of red tape where possible. The Your Freedom initiative is gathering suggestions via its website www.yourfreedom.hmg.gov.uk So now is the time to put forward suggestions. My pet hate is the Designated Premises Supervisor. It was a last minute concession to the Police in the new Act of 2003 and has simply added to both the cost and confusion of licensing. The Licensing Act does not identify any roles or duties for the DPS and yet the government through the Guidance, and the Police, have been inventing roles for the past 7 years. With a Premises Licence holder and Personal Licence Holders, why add to the red tape with a DPS? What do you think?

It will be very interesting to see what the government come up with to "strengthen" the licensing laws. In my opinion the existing laws have more that sufficient strength. There are a host of different ways the authorities can enforce the law, with very stringent penalties for breach. The problem has been the confusion caused by the multitude of enforcement measures, and more critically the lack of funding for the enforcement agencies. I hope that the new government does not follow the error of the last government in believing that all problems will be solved simply by pasing new laws. I will let you know my thoughts and feelings on what they propose immediately they put forward their ideas.

Nigel Musgrove

Licensing Law Specialist

Electronic Licensing-not what it says on the tin

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You may remember the flurry of activity by the last government during the last few months of 2009 to introduce electronic licensing via the web. It was all done in a rush to avoid breach of EC legislation. I said at the time that it was a pig's ear, was full of flaws and uncertainties, and that Licensing Authorities would not be geared up either then or in the near future to deliver the promised package.

Six months on and nothing has changed. The system should allow licensing applications such as Temporary Event Notices, applications for new Premises Licenses, and for variations, to be conducted on line with a streamlined sysytem and potential big saving in red tape and costs. But I have not used the system because of the uncertainties, and my fellow professionals seem to be share my distrust. It is also difficult to identify the few Licensing Authorities who are actually able to undertake on line licensing. They do not have in place the necessary sytems for processing the applications or for taking on line payments, necessary for the applications to be valid.

It is unlikely that the situation will improve in the near future. With the new government and wholesale cuts I suspect that Licensing Authorities will be tightening their belts further and will not be investing in systems for licensing on line. So my advice to everyone is to stay with the paper applications, however tedious and unnecessary is most of the red tape attached. Better the devil you know.

Nigel Musgrove

Licensing law Specialist

Small Business Rate Relief News

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The temporary increase in small business rate relief has been confirmed by the new government.

The increase will apply for 12 months from 1 October 2010 and means that eligible businesses occupying premises with a rateable value of £6,000 or less will pay no business rates for that period. For properties with a rateable value of between £12,000 and £6,000 there will be relief on a sliding scale from 100% to zero.

For more information on how this will affect your business rates bill contact Paul Harrison.

Your Freedom website - tell the government what laws you want scrapped

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I have blogged before about the coalition government's promise to remove excessive red tape and to allow businesses to nominate their most hated business laws.

Well, at last our chance is here. The government has now launched its Your Freedom website where we can tell it what regulations we want to see removed.

They promise to listen. Now let's see how good they are at acting.

Gary Cousins
Business Solicitor

What is a rent deposit?

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When entering into a lease of business premises the landlord may require the tenant to provide a rent deposit. This is a sum of money equivalent to, for example, 6 months’ rent. A rent deposit gives the landlord some security in the event that the tenant fails to pay the rent on time or does not comply with its other obligations in the lease. In these circumstances the landlord can deduct sums from the deposit to cover the arrears of rent.

It is crucial from the point of view of the tenant that a formal rent deposit deed is signed. This is a document that sets out when the landlord can call upon the deposit; when it will be repaid and to whom interest will be paid. It should also provide that the rent deposit is kept in a separate account otherwise it could be lost if the landlord gets into financial problems.

If you are in the process of negotiating a lease of business premises or worried about a rent deposit held by your landlord please contact Paul Harrison, Property Solicitor on 01604 456591.

For information on tenancy deposits for residential premises follow the link Tenancy Deposit Scheme