This month in summary
Operators of licensed premises, for good reason, praise stability when it comes to legislative processes. In an ideal world, a universal system means that an operator can be confident that the same rules apply to their premises in Carlisle as they do in Caerphilly. The flip-side to this particular coin is when local rules and regulations remove all certainty, leaving operators staring through a pea-soup fog when trying to legally operate their businesses. Step up pavement licensing as 'exhibit A'.
Whilst sunny days may seem an age away, we all dream of the time when we can sit outside with friends, drink and dine alfresco and watch the world amble slowly by. For some operators this means taking on the administrative equivalent of the Pamplona bull run; where each bull you encounter has its own personality and tricks to catch you out; the pavement licence…
The legislative framework for pavement licensing begins life as a couple of benign paragraphs in the Highways Act 1980, granting local authorities' power to give permission for items such as tables and chairs, barriers, A-boards to be located on the public highway. Beyond a few additional paragraphs dealing with needing to get consent from 'frontagers with an interest,' there is not much more to it than that. The act gives councils powers to charge for such permissions, but then that would seem reasonable, right?
What this means, however, is that it is pretty much left up to each authority to determine how the process works and what they will charge. This has frustrating consequences for operators with premises across different local authority areas. Sisyphus had his stone, operators have pavement licences.
For instance, in Bristol, there is no formal process. Operators are left to put out tables and chairs, barriers, A-boards on the highway as they please, with a pragmatic approach to enforcement to ensure that the pavements are not blocked and pedestrians, pushchairs, wheelchairs and visually impaired persons are not impeded. Head east along the M4 and you will encounter Westminster. Here, you will need to obtain planning permission to use the highway before attempting the complex application process; and then if you are lucky enough to be granted a licence it will need to be renewed every 6 months- at great expense- albeit with a much simpler process. They want your money, after all.
Like playing chess blindfolded, the number of potential combinations increases exponentially as you encounter each new council. Who deals with the application- highways or licensing? Is planning required? Ban on A-boards? Level of public liability insurance? What should plans show? Do you have toilet facilities? Planters? Umbrellas? Heaters? Each application needs to be individually crafted to meet each individual policy.
Then comes the thorny issue of objections. What rights does an applicant have if someone contests the application before the council? In Camden, a panel sits behind closed doors and determines your application, allowing the applicant to submit evidence supporting the application, but not attendance. However, the make-up of the panel is something of a mystery and the outcome can appear to be bit of a lottery in terms of what gets granted or conditions applied to any licence. Other authorities will simply inform you of their decision to grant or not. Yet others have a hearing process requiring attendance. The difference this makes to the chances of obtaining a pavement licence, let alone the cost of getting one, needs to be factored into any decision to apply.
Finally, policy updates can make something that was perfectly legal yesterday, illegal today, with significant cost implications. Two recent examples are the apparent changes in policy in Cardiff and Chester dealing with the use of A-Boards. In Cardiff, the council appear to want to introduce a blanket ban on them from April 2019. Given the expense in having decent A-boards made, this will leave a lot of frustrated operators with expensive advertising structures that will no longer be usable. Chester are currently looking at how they licence A-boards, with what would seem to be an inevitable additional cost for operators looking to use them in the city.
Oh, and to cap it off; pavement licences are almost always non-transferable, so if you take on a premises with a pavement licence, beware: You may be told that you have to remove furniture whilst you re-apply for a new licence. Worth factoring into the completion process for taking on a new site.
Now does the Licensing Act look so bad?
The merger of ALMR and BHA has been finalised, with a new organisation, UKHospitality, set to take their place. ALMR Chief Executive Kate Nicholls will take up the position of UKHospitality CEO with BHA Chairman Nick Varney and ALMR Chairman Steve Richards appointed Chair and Deputy Chair respectively. Further details will no doubt follow in due course as to the how the new organisation will continue to serve its members in relation to lobbying and representing the hospitality sector going forward.
New standards announced by the Committees of Advertising Practice (CAP) and enforced by the Advertising Standards Authority (ASA), have been announced and come into force from 2 April. They will apply across the gambling industry. The new standards look to:
One of the primary targets for the new measures appears to be the in-play betting market that is heavily advertised during live sport broadcasts on commercial television. In particular, the changes are focussed on ensuring consumers are able to make informed choices about how and when they gamble and not feel pressured into making decisions that could cause them harm.
In another sign of the Gambling Commission doubling down on its pledge to take operators to task where failures to protect problem gamblers or prevent money laundering are identified, William Hill have been fined £6.2m in relation to breaches of anti-money laundering and social responsibility regulations. This is one of a number of significant fines levied by the commission since their much publicised change in stance on enforcement and follows on from the £7.8m fine levied against 888.com in 2017 for failures to protect problem gamblers.
The Gambling Commission's press release states that: 'Senior management failed to mitigate risks and have sufficient numbers of staff to ensure their anti-money laundering and social responsibility processes were effective. This resulted in ten customers being allowed to deposit large sums of money linked to criminal offences which resulted in gains for WHG of around £1.2m. WHG did not adequately seek information about the source of their funds or establish whether they were problem gamblers.'
The clear message here is that companies are expected to probe into their customers' finances to such a degree that they are not only satisfied that the customer is gambling within his or her means, but that the money they use is from a legitimate source. A simple verbal confirmation from the customer as to where his money comes from and how much he earns is not enough, in particular for high stakes gamblers. The Gambling Commission have identified the following questions as being key to establishing whether internal systems are likely to be robust enough in this regard:
The full regulatory settlement can be found here.
TLT licensing team are proving themselves to be a hardy bunch- albeit we accept our Scottish colleagues may legitimately lay claim to the tougher weather conditions. We have been involved in hearings in Bristol, Birmingham, Islington, Cardiff and Winchester to name a few destinations and have had further meetings with clients and various bodies around the country. January saw a spike in enforcement action, a legacy of the busy Christmas and New Year period, we suspect; but also as a direct result of single incidents of serious violence. As is always the case, it is often the reaction of the DPS or management team to the incident that defines what the final outcome of any review procedures are. Where management is proactive and engages with all stakeholders in an open and honest way, the result is inevitably better than where the police or licensing authority feel frustrated by what appears to be attempts to either cover up or not accept the serious nature of the incidents. Incidents can, and unfortunately will, occur. Showing that one is willing to learn the lessons from them is without doubt the best way to proceed.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions