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Licensing news Scotland - October to November 2017

This issue in summary

Dundee licensing board launch public consultation on overprovision

Dundee Licensing Board have released a public consultation on the adoption of a new overprovision policy.

Dundee had a pre-existing overprovision policy which applied to the whole of Dundee with the only exclusion the Waterfront V & A.  That meant that any new licence application of any sort of licence, anywhere in the city, other than the Waterfront had to overcome the presumption against grant.  Aldi Stores Ltd successfully challenged the old policy on the basis that it was fundamentally flawed in its adoption.  This resulted in the previous overprovision policy falling. 

The Board have now announced that having considered material presented in a report from the Alcohol and Drug Partnership, they have reached the view that it “…is satisfied that there is, in principle, overprovision of off-sales and public house-type premises in Dundee. The Board has determined that the whole of its area should be the locality for this purpose”.

In short, the Board is minded to introduce a rebuttable presumption against the grant of applications relating to off sale or public house type premises, i.e. new grant applications or major variations seeking capacity increases or licence extensions. It appears that restaurants, cafes and hotels would be exempt.

Responses are sought prior to 29 December 2017 and you can read the consultation and respond here.  

Christmas – a time for celebration or enforcement?

Whilst we wouldn't suggest licensing authorities are Grinch or Scrooge-like, we see a significant rise in the amount of enforcement during the festive season.  So use our 12 top tips to navigate the 12 days of Christmas and beyond:

  • even seasonal staff must undertake the 2 hours mandatory training before they engage in the sale or service of alcohol and all training records must be available and up-to-date
  • review your licence to check whether you benefit from season variations to allow longer trading (see Question 4 in the operating plan)
  • check your licensing board's policy statement for seasonal variation dates and importantly, whether you need to apply for, or notify them of the dates you wish to use (do often 4 weeks notification is needed)
  • get advice before undertaking alcohol based promotions
  • avoid "all inclusive" party nights
  • ensure large office bookings are aware of your children's access permissions so you don't disappoint the office junior
  • risk assess your security needs, SIA stewarding may be a worthwhile investment
  • ensure your entertainment is covered in your licence (see Question 5 in the operating plan, in particular "live performance" and "recorded music" )
  • communicate early with your bands or DJs so they are aware of any noise conditions on your licence
  • check the statutory prescribed notices etc are up and they aren't obscured by the Christmas décor ( including section 110, summary licence, weights and measures, challenge 25)
  • if any incidents do occur, record them in the incident book and, if appropriate proactively involve the police and seek their assistance
  • have a safe, hassle free and profitable Christmas and New Year's trading

Scotland gets green light for minimum unit pricing

The case of the Scotch Whisky Association v The Lord Advocate came to its final conclusion in a hearing before the Supreme Court in London in July 2017.  On 15 November 2017 Lord Mance delivered the Judgment on behalf of the Court, with all seven Justices in agreement.

Background

In 2012 the Scottish Parliament legislated to introduce a minimum pricing regime aimed at addressing the health and social consequences it attributed to the consumption of cheap high strength alcohol. 

A mandatory condition was to be applied to every licence in Scotland which would state that alcohol must not be sold at a price below a minimum price per unit of alcohol. The minimum price is to be set by Scottish Ministers.   The Scotch Whisky Association ("SWA") and others challenged the lawfulness of the measure on the basis of non-compliance with EU law.  The appeal ran through the courts and was heard by the Inner House of the Court of Session, remitted to the European Court of Justice and then refused in the first instance.  The SWA subsequently appealed to the Supreme Court.

Outcome

The Supreme Court unanimously found that Minimum Pricing is a proportionate means of achieving a legitimate aim and thus complies with EU Law.  On the SWA's point of taxation being a better means of achieving the aim, the Supreme Court found that Minimum Pricing targets the health hazards of cheap alcohol and the groups most affected in a way that an increase in tax or VAT does not.

The minimum unit price for alcoholic drinks is likely to be set at 50p but a consultation will be announced on Tuesday 21 November by Shona Robison, MSP as part of the timetable to implement the new regime.  The minimum unit price therefore will not be known until after the consultation.  The commencement date for the regime is likely to be spring 2018.

Unusually the legislation includes a “sunset clause” under which minimum pricing is withdrawn unless Holyrood passes a renewal bill within six years of the Act coming into force, it obliges the Government to assess whether it has achieved its stated aims.

Whilst the minimum unit price only applies to Scotland, Wales have signalled intent to follow suit and press will grow on England to follow.

Edinburgh licensing board launch informal consultation on its licensing policy

The consultation has been released on Edinburgh's hub and can be accessed here  

Whilst responses will be sought on all parts of the liquor licensing policy it particularly hones in on the following: :

  • Children and Young Persons’ access to licensed premises
  • Use of outdoor drinking areas
  • Licensing of “pop-up” bars
  • Extended use of Occasional Licences
  • Overprovision
  • Use of Extended Hours for events

The consultation outcome will shape the capitals licensing policy for the next five years.  It closes on 22 December and all parts of the trade are encouraged to engage and respond

Scottish Government consults on Sexual Entertainment Venue Licensing

A Consultation on Guidance on the Provisions for Licensing of Sexual Entertainment Venues gone live.  The guidance will be aimed at local authorities to help them implement the impending new regime governing the sexual entertainment licensing regime.

You can view the consultation and respond here.

Gambling news

The Department for Digital, Culture, Media & Sport launches 12-week consultation on stake reduction for FOBTs

Gambling Minister Tracey Crouch has announced the Government will review the maximum stakes on Fixed Odds Betting Terminals (FOBTs) with a view to reducing them.  As Gambling is reserved to Westminster the effect of a reduction would be U.K. wide.

The Government Consultation is looking at cutting maximum stakes of B2 gaming machines, otherwise known as FOBTs, from £100 to between £50 and £2

Pressure has been mounting on regulators with headlines like "crack-cocaine of gambling" being attributed to the machines.  The Government has also asked the Gambling Commission for more information on monitoring player and also if spin speed (on games such as roulette) should be modified.

Find the full consultation here.

Christmas: Not always a time for goodwill…

Christmas tends to bring out a number of contradictory narratives from the press to do with gambling. The "Christmas lottery miracle" winners' tales vie with the "my hubby gambled away our Christmas money" tabloid stories for prominence. 2017, it is fair to say, has seen a change in the focus of the Gambling Commission in terms of its stated aims and this has driven a lot of the narrative in public.

Public image of gambling

The difficulty that the gambling industry has to deal with is that it is often hamstrung in terms of how to get out a positive message around gambling. Tighter restrictions on what is considered socially responsible advertising, the LCCP Code of Practice Provision 5 in relation to marketing and restrictions on sponsorship, whilst all invaluable tools in ensuring gambling is only undertaken by responsible adults, also make it difficult to promote a strong positive message around gambling. This, coupled with the Gambling Commission's restatement on how it will deal with breaches of codes of practice and licence conditions, can lead to a feeling of negativity around a certain gambling products, in particular certain on-line products and off-course betting. Operators are having to look harder for a means of promoting their products positively and engaging with the public.

Some areas, such as lotteries and on-course horse and dog racing can emphasis the social aspects of what they offer, such as raising money for good causes and bring people together for social events. However, this does not work so well in other areas. In particular, betting shops have been increasingly feeling the strain in terms of negative press and the backlash against FOBT's. However, without a stronger affirmative message, this negativity will permeate throughout gambling.

The positives that perhaps need to be emphasised include the work that the industry has done to protect problem gamblers and encourage a responsible attitude to gambling. In particular, this will help to counter the negative press whenever a company statement comes out through the Gambling Commission on a finding that the system has failed. In addition, where there is a social story to tell, this needs to be emphasised, as does the message of how much the industry spends in each sector on good causes. It's not just the lottery that gives money to charity, in the same way it's not just people having a day at the races that benefit from social inclusion around gambling.

There will always be a certain stigma that some people will attach to any and all gambling, just as there will be for alcohol; but it is not the only story out there. Perhaps it's just that at the moment, the negatives seem to be gaining more traction than the positives?

The Gambling Commission endorses October's industry led initiative

The Commission has praised the Industry Group for Responsible Gambling initiative aimed at raising awareness of responsible gambling.  Running at the start of October it saw more than 10,000 gambling venues and websites in Britain taking part.

Its theme was ‘let’s talk about responsible gambling’.

Sarah Harrison, Gambling Commission chief executive, said:

“It is imperative that gambling operators meet their obligations and take every step to ensure gambling is safe so we're pleased to see the industry coming together to raise awareness of responsible gambling."

Gambling Commission calls for removal of ads that may appeal to under 18s

In an open letter the Commission has reminded online operators about the safeguards needed to protect under 18s.  They have asked that they check all adverts for images or the like that are likely to appeal particularly to under 18s.

Renowned poker player loses Supreme Court case worth £7.7m

Poker legend Phil Ivey has lost his court his cases seeking winnings from Punto Banco at Crockfords Club in Mayfair dating back to 2012.

In the judgement the court had to establish if dishonesty was a prerequisite to cheating.  The background was Mr Ivey admitted to deploying a technique, called edge-sorting (noting small differences on the back of the cards).  The casino argued it was not a legitimate strategy, while Ivey maintained it was fair.

Five Supreme Court Justices unanimously found that dishonesty was not a necessary element of “cheating” and therefore he was not entitled to his winnings.

Out and about

October has seen a busy month for Board hearings with the team on their travel to hearings across the country including Aberdeen, Glasgow, Edinburgh, North Ayrshire and Highland.

In addition the team were active supporting trade charity the BEN with Stephen, Caroline and Niall hosting a table of clients at the BEN Barrel Ball in Edinburgh. 

Stephen also chaired the inaugural Best Bar None Licensing Conference in Glasgow.  Stephen and Michael presented at the CLT Licensing Conference at Murraryfield and Niall hosted a half day CPD licensing session through CCPD for commercial property solicitors in Glasgow.

November sees the team cover Board hearings across Scotland including Fife, Glasgow and West Dunbartonshire.

Awards season is also in full swing with Stephen and Niall cheering on client successes at the SLTN Awards and Niall attending the Best Bar None Awards.  We also will be supporting the SLTA annual lunch and the BII Scottish Region's AGM.

Stephen and Caroline are speaking at the IOL National Licensing Conference in Stratford Upon Avon. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions.



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