Publication - Consultation paper

Section 142 of Licensing (Scotland) Act 2005: consultation on draft revised guidance for licensing boards

Published: 19 Mar 2019
Directorate:
Justice Directorate
Part of:
Law and order
ISBN:
9781787816602

We are inviting your views on reviewed guidance for alcohol licensing boards.

142 page PDF

1.1 MB

142 page PDF

1.1 MB

Contents
Section 142 of Licensing (Scotland) Act 2005: consultation on draft revised guidance for licensing boards
Footnotes

142 page PDF

1.1 MB

Footnotes

1. Under section 147(1) of the Act, the "relevant Health Board", in relation to a Licensing Board, means (a) the Health Board for the Licensing Board's area, or (b) if the Licensing Board's area forms part of the area of more than one Health Board, each such Health Board.

2. As amended by The Licensing (Fees) (Scotland) Amendment Regulations 2018 (SSI 2018 No. 256).

3. The Licensing Conditions (Late Opening Premises) (Scotland) Regulations 2007 (SSI 2007 No. 336) provides the mandatory licence conditions for late opening premises.

4. As mentioned below at paragraphs 5.13 to 5.18, the Board 'locality' can include the whole of the Board's area as a single locality.

5. Sections 23(5)(e) and 30(5)(d) of the Act, respectively. See Chapter 8 of this Guidance for more on premises licence applications and for variations of premises licences.

6. If there is more than one Health Board in the area, the one whose area contains the larger, or largest part of the Local Licensing Forum's area will nominate the Health Board representative.

7. The relevant council here is the council for whose area the Forum is established, or if the Forum is established for a licensing division, for the area of which the division forms part

8. As amended by the Premises Licence (Scotland) Amendment Regulations 2018 (SSI 2018 No. 49).

9. Regulation 2(b) of the Licensing (Minor Variations) (Scotland) Regulations 2011 (SSI 2011 No. 151) provides that a reduction of hours is a minor variation – provided that it does not result in the premises opening any earlier or closing any later than stated in the premises licence and operating plan.

10. The form is set out in schedule 6 of the Premises Licences (Scotland) Regulations 2007 (SSI 2007 No. 452), which was inserted by the Premises Licence (Scotland) Amendment Regulations 2018 (SSI 2018 No. 49).

11. The meanings of 'notifiable interest' and 'neighbouring land' are set out in regulations 3 and 4 (respectively) of the Licensing (Procedure) (Scotland) Regulations 2007 (SSI 2007 No. 453).

12. The meaning of 'connected person' is set out in section 147(3) of the Act.

13. Or the dissolution of the licence holder where the licence holder is a company or partnership.

14. This means incapable within the meaning of section 1(6) of the Adults with Incapacity Act 2000,

15. See paragraph 8.40 and 8.41 of this Guidance for more information on minor and major variations.

16. Section 22(1A) of the Act provides for the person giving the notice to the Licensing Board to include information in the notice that they consider may be relevant to consideration by the Licensing Board of any ground for refusal including, in particular, information in relation to the applicant, a connected person in relation to the applicant (where the applicant is neither and individual nor a council), or any person who would be an interested party.

17. The meaning of 'connected person' is set out in section 147(3) of the Act.

18. Which was added by the Licensing (Mandatory Conditions) (Scotland) Regulations 2007 (SSI 2007 No. 457).

19. Adult entertainment for these purposes is defined by regulation 1(2) of the Licensing Conditions (Late Opening Premises) (Scotland) Regulations 2007 (SSI 2007 No. 336).

20. https://ico.org.uk/media/for-organisations/documents/1542/cctv-code-of-practice.pdf

21. The prescribed forms of the premises licence and the summary of the premises licence are set out, respectively, in schedules 1 and 2 of the Premises Licence (Scotland) Regulations 2007 (SSI 2007 No. 452).

22. Regulation 12(1)(b) of the Licensing (Fees) (Scotland) Regulations 2007 (SSI 2007 No. 553).

23. Regulation 12(2) of the Licensing (Fees) (Scotland) Regulations 2007 (SSI 2007 No. 553).

24. See the Licensing (Minor Variations) (Scotland) Regulations 2011 (SSI 2011 No. 151).

25. For the meaning of 'a branded non-alcoholic product' see paragraph 13(4) of schedule 3 of the Act.

26. See section 23 of the Criminal Law (Consolidation) (Scotland) Act 1995. Section 23 sets out provision as to what is meant by 'period' when the timing of an event changes from the advertised times.

27. See section 23 of the Criminal Law (Consolidation) (Scotland) Act 1995.

28. See section 41 of the Civic Government (Scotland) Act 1982, specifically section 41(2) as to the definition of 'public entertainment'.

29. The exemption remains in force in respect of premises licences (see section 41(2)(f) of the Civic Government (Scotland) Act 1982).

30. See section 56(1) of the Act.

31. See Annex 6 for more on the licensing of members clubs.

32. See paragraph 5 of schedule 4 of the Act.

33. I.e. a club described in regulation 2 of the Licensing (Clubs) (Scotland) Regulations 2007 (SSI 2007 No. 76).

34. The limits in respect of voluntary organisations are set out in section 56(6) of the Act and in respect of clubs in regulation 3 of the Licensing (Clubs) (Scotland) Regulations 2007 (SSI 2007 No. 76).

35. See regulation 8(2)(c) of the Licensing (Procedure) (Scotland) Regulations 2007 (SSI 2007 No. 453).

36. See regulation 18 of the Licensing (Procedure) (Scotland) Regulations 2007 (SSI 2007 No. 453).

37. Relating to the maximum number of occasional licences that maybe issued in a 12 month period.

38. Where, if the application were to be granted, a licence would be such as to allow alcohol to be sold for consumption on the premises during a continuous period of 24 hours or more, in the absence of exceptional circumstances to justify that ability.

39. Where the off-sales hours proposed in the application are such that alcohol would be sold for consumption outside before 10 am, after 10 pm, or both.

40. A 'prescribed condition' is a condition prescribed by regulations made by the Scottish Ministers under section 60 of the Act, which Licensing Boards have discretion to impose on the grant of an occasional licence. Licensing Boards still retain the discretion to impose conditions other than any prescribed conditions, but these cannot be inconsistent with any prescribed condition. At the time of publication of this Guidance no conditions have been prescribed by the Scottish Ministers.

41. As mentioned above, one of the mandatory conditions of a premises licence relates to staff training requirements. Regulation 2 of the Licensing (Training of Staff) (Scotland) Regulations 2007 (SSI 2007 No. 397) provides that the prescribed training can be delivered by a person who holds a personal licence.

42. Unless revoked or surrendered.

43. See section 74(3)(ba) of the Act.

44. Section 78 of the Act concerns renewal of a personal licence, noting section 73, 73A and 74 of the Act apply to a personal licence renewal application as they do to an initial application for a personal licence – with the exception of section 74(3)(ba) of the Act. That provision is the condition that an applicant must not already hold a personal licence. This has the effect of disapplying that condition in the context of a renewal of a personal licence.

45. See paragraph 4 of schedule 3 of the Act.

46. See section 18 of the Act for the identification of the appropriate Licensing Board and paragraph 8.11 of this Guidance

47. See section 74(3) of the Act.

48. Under section 73(3)(a) of the Act.

49. Under section 73(4) of the Act.

50. Under section 73(5) or 73A(2) of the Act.

51. Section 74(8) of the Act applies if – (a) all of the conditions specified in section 74(3) of the Act (and outlined in paragraph 10.14 of this Guidance) are met in relation to the applicant, (b) the Licensing Board has received from the chief constable a notice under section 73(3)(a) of the Act, and (c) of the Act, the applicant has held a personal licence which- (i) expired within the period of 3 years ending on the day on which the application was received, or (ii) was surrendered by the applicant by notice under section 77(6) of the Act received within that period.

52. Under section 73(3)(a) or (b) of the Act.

53. Under section 73(4) of the Act.

54. Under section 73(3)(b) of the Act.

55. Ending on the day on which the application was received.

56. By notice under section 77(6) of the Act received within that period.

57. See paragraph 10 of schedule 1 of the Act.

58. See section 82 of the Act.

59. See section 83 of the Act, which sets out what action the Board must take on being notified (or otherwise becoming aware) of a personal licence holders relevant or foreign offences, and the possible consequences for the licence holder.

60. See regulation 2 of the Personal Licence (Training) (Scotland) Regulations 2013 (SSI 2013 No. 261).

61. See paragraph 10.34 of this Guidance for more on endorsement.

62. See paragraph 10.34 of this Guidance for more on endorsement.

63. Where an endorsement has expired, but the Licensing Board has not yet amended the personal licence, that endorsement is still to be disregarded and will not count toward the total number of endorsements (see section 85(6) of the Act).

64. A senior police officer for these purposes means a constable of, or above, the rank of superintendent (section 147(1) of the Act).

65. Notice must also be given to a responsible person (section 98(2)(a) of the Act).

66. Note that here that 'responsible person' has a slightly different meaning (set out in section 122(3) of the Act) than the meaning of 'responsible person' for the purposes of closure orders (see section 101 of the Act).

67. Who is an interested party is set out in section 147(5) of the Act, and is a person who has an interest in the premises as an owner or tenant or who has management and control over the premises or the business carried out on the premises.

68. [2011] CSIH 29

69. See paragraph 48 of the judgment.

70. See paragraphs 49 and 50 of the judgment.

71. See paragraphs 49 and 50 of the judgment.

72. Paragraph 51 of the judgment.

73. [2009] L.L.R 647; 2009 G.W.D. 4-67

74. See sections 22 and 22A of the Customs and Excise Management Act 1979 for more on what is meant by an examination station.

75. See sections 20 and 20A of the Customs and Excise Management Act 1979 for more on what is meant by an approved wharves.

76. See section 124(1) and (2) of the Act.

77. Meaning an officer of a rank of or above superintendent (section 147(1) of the Ac


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