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pas-logo-64INFORMATION FOR PUB TENANTS AND LESSEES

Expert advice from industry professionals


 

Licensing

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How Does Licensing Work? What does it mean for those running a licensed premises?

“A lot of problems in relation to a premises licence arise because Licensees and their staff simply do not know enough about the licence that they hold.” Sarah Clover – Barrister

The Licensing Act 2003 –

In 2005, the whole legal regime for licensing law changed. After hundreds of years of the “Licensing Justices”, the system for obtaining a licence for alcohol and entertainment switched to the Local Authorities. It was a radical change, and  swept away much of what anyone had previously understood about licensing law.  Everyone had to start again. It has taken a long time for the system to settle down, and for everyone to understand what they are supposed to be doing under the new law – and that included the Local Authorities. Even now, mistakes are occasionally made with the law, and that is why it is important to have a basic understanding, and then to seek competent professional advice when things get more complicated.

The Licensing Act 2003 introduced a two tier system, whereby premises are licensed in their own right for the licensable activities that go on there, in a “Premises Licence”, and individuals who are involved in the sale of alcohol also have their own “Personal Licences”. The two types of licence are no longer linked together, so that the premises can continue to be licensed, even if the operators leave, and individuals can move anywhere they like, and take their personal licences with them.

The Licensing Act 2003 brought together a number of pre-existing legal regimes, including entertainment licensing; film and theatre licensing; food and refreshment; sport and, of course, alcohol.  For the first time, all these activities were brought under the same umbrella, in a twenty six page application form to the local Council. It is up to the licence Applicant to set out clearly what they want to do, and at what times, on what days for their premises.  This has to be accompanied, on the same form, by a risk assessment known as the “Operating Schedule”. In it, the Applicant sets out all the risks that they identify might be caused by their licence in action, and what steps they think they can take to address any problems before they occur.  This includes things like installing CCTV, and having doorstaff,  or implementing a drugs policy, or putting up notices requiring customers to leave quietly.  There is no fixed list of the sort of things that can go in an Operating Schedule, and it is for every licensee to identify the specific needs of their operation.  This is one area where expert help can make a difference.

The application form for a premises licence with the Operating Schedule is submitted to the Council, ( the “Licensing Authority”),  and also to all the “responsible authorities”, including the Police, Trading Standards, the Environmental Protection Department of the Council, Child Protection agencies, and others. The application also has to be advertised in the local newspaper, and a notice put up at the premises, much like a planning application.  If local residents do not like what is proposed, then they can object to the Council, and their objections will be heard before the grant of any licence.

If there are no representations from anyone, then the licence can be granted straight away.  This becomes the Premises Licence for the venue, and it lasts indefinitely; running with the premises for as long as the annual fee is paid.  It only ends if the Licensee surrenders it, or becomes bankrupt, or incapable through health problems, or dies.

If there are objections to the licence being granted, then there must be a hearing at the Council.  This is where professional advice is required, as it can be difficult to secure a licence at a hearing where responsible authorities or residents are objecting.

Designated Premises Supervisor.

The Designated Premises Supervisor, or “D.P.S.”  is a very important person in the running of a Premises licence.  The role of DPS is not defined in the Licensing Act 2003, but the Act requires a person to be allocated this role wherever alcohol is to be supplied under the licence.  The Guidance makes it plain that the DPS is supposed to be responsible for the day to day running of the premises, and is intended to be the point of contact for the Responsible Authorities. The DPS can be but does not have to be the same person as the Premises Licence holder.  The name of the DPS will appear on the premises licence, and will be displayed somewhere in the premises on the Summary Licence, which must be visible.  The DPS must agree to take this role, and they remain the DPS until the formalities have been completed that transfer that role officially to someone else.  They can remain DPS even if they leave their job and the premises, and this is an area that can require some advice. If the DPS no longer wished to hold this role, they must notify the Licensing Authority and the Premises Licence holder – they cannot just walk away.

A DPS does not have to be present on the premises at all times, and can go away from the premises; on holiday; to hospital and so on, and still remain the lawful DPS. It is important, however, that the whereabouts of the DPS are known, and that they can be reasonably contactable, in order to carry out their duties, and remain the point of contact for the Licensing Authority and the Responsible Authorities. It is possible to be the DPS of more than one premises, as long as these responsibilities can be complied with.   It is important that the DPS has clearly authorised others on the premises to supply alcohol, and that this authorisation, which ought to be in writing, can be produced if required. The DPS must be a Personal Licence holder, but not everyone that he or she authorises to supply alcohol needs to be a personal licence holder themselves.

Only the police may object to a DPS.

Licence Health Check -  Get to know and love your licence.

A lot of problems in relation to a premises licence arise because Licensees and their staff simply do not know enough about the licence that they hold.  On the one hand this is not so surprising – it is a technical, sometimes lengthy document, and it has a legal look about it, with which many people do not feel comfortable. On the other hand, it is vital that the Licensee, and the Designated Premises Supervisor in particular clearly understand the terms on which the Premises are being run, and can answer questions about it when the Authorities come to call.

The Summary Licence must be displayed prominently in the premises, and failure to do this is an offence under the Act.  It is also important to be able to locate and present a copy of the full licence when requested to do so by the responsible authorities.

Know your conditions. Most premises licences will have numerous conditions upon them, relating to the way in which the premises are to be operated, and any steps that need to be taken in order to ensure that the premises are operating in accordance with the four licensing objectives.  These can range from keeping doors and windows closed if there are entertainments, to maintaining working CCTV cameras, to clearing beer gardens by a certain time.  The range of conditions that can be imposed upon a licence is very wide ranging indeed.  If these conditions are broken at any time, then this is an offence under the Act which is punishable with a fine of up to £20,000 or six months imprisonment, imposed by the Magistrates.  It is a serious matter, therefore.  It is quite rare for prosecutions to result from breaches of condition, but it is much more common for the responsible authorities to ask for a review of the licence where there are concerns that the conditions are not being complied with.

2.         PRSR – What is coming next….? To be continued….!!

4.         Noise and Neighbours

One of the most difficult relationships to manage and maintain can be between licensed premises and their nearest neighbours.  Probably no other area of licensing causes such problems as premises trying to trade near residences where the neighbours are upset for one reason or another.  Sometimes the residents’ concerns are entirely understandable, and it is clear that the balance between the operation of the premises and the right of the residents to peace and quiet, especially at night, has broken down.  At other times, residents can become intractable and over-zealous in their campaigns against local premises, and this can become a very difficult problem for licensees to handle.
What is the best approach when faced with such situations?

If complaints are coming through, either directly from neighbours, or via the Environmental Protection department of the Licensing Authority, then these should always be taken seriously.  If the complaints are justified, and there is too much noise, either from rowdy customers as they leave, or in a beer garden, or from musical entertainments, or from taxis arriving late at night, or anything of this sort, then Licensees are very well advised to get on top of these issues, and put steps in place to control the noise as soon as possible.  If the situation is more complicated than this, then Licensees will want to engage with their local environmental health officer to take some advice as to whether there is a genuine problem, and what could be done about it.   This might be the time to seek some independent legal advice as well, as views can often differ as to what is reasonable and what is not, in the emotive area of noise.  Environmental Protection departments have certain duties in relation to noise, which can range from issuing Noise Abatement notices under the Environmental Protection Act 1990, to asking for a review of the premises licence.  It is always wise to try and avoid these actions by positive engagement with the authority at an early stage, but sometimes, resolution is not possible via this route.

It can be helpful to engage Sound Acoustic experts to take independent readings of how loud the sound actually is, which can be a definitive answer to complaints that are not, in fact, reasonable.

Excessive noise can breach the licensing objective of “prevention of public nuisance”, and is possibly one of the most contentious areas of operating a licence. Early advice is recommended, as there is a lot of support that can be offered in this area.

Author Sarah Clover can be contacted via the form below...

Pubs Advisory Service Ltd.

PO BOX 237
HAILSHAM
BN27 3TQ

Tel: 0203 651 3351

Email This email address is being protected from spambots. You need JavaScript enabled to view it.
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