Licensing of sexual entertainment venues: interpretation
84. Part III of the 1982 Act currently allows local authorities to control the number and location of sex shops in their area and Schedule 2 contains the detailed licensing procedures and provisions for sex shops. Section 76 of the 2015 Act creates a new licensing regime for SEV. It inserts sections 45A - 45C into Part III of the 1982 Act; modifies Schedule 2 so that it applies when a local authority resolves to licence SEV; and amends the title of Part III to "Control of sex shops and sexual entertainment venues".
85. Section 76(3) inserts an interpretation section, which underpins the SEV licensing regime, into the 1982 Act at Part III, section 45A. The relevant definitions are:
"(2) "Sexual entertainment venue" means any premises at which sexual entertainment is provided before a live audience for (or with a view to) the financial gain of the organiser.
(3) For the purposes of that definition—
"audience" includes an audience of one,
"financial gain" includes financial gain arising directly or indirectly from the provision of the sexual entertainment,
"organiser", in relation to the provision of sexual entertainment in premises, means—
(a) the person ("A") who is responsible for—
(i) the management of the premises, or
(ii) the organisation or management of the sexual entertainment, or
(b) where A exercises that responsibility on behalf of another person (whether by virtue of a contract of employment or otherwise), that other person,
"premises" includes any vehicle, vessel or stall but does not include any private dwelling to which the public is not admitted,
"sexual entertainment" means—
(a) any live performance, or
(b) any live display of nudity,
which is of such a nature that, ignoring financial gain, it must reasonably be assumed to be provided solely or principally for the purpose of sexually stimulating any member of the audience (whether by verbal or other means).
(4) For the purposes of the definition of "sexual entertainment", "display of nudity" means—
(a) in the case of a woman, the showing of (to any extent and by any means) her nipples, pubic area, genitals or anus,
(b) in the case of a man, the showing of (to any extent and by any means) his pubic area, genitals or anus."
86. However, premises where sexual entertainment is provided on no more than 4 occasions in a twelve month period are not to be treated as SEV. This exemption is to avoid drawing into the SEV licensing regime venues where the main purpose is clearly not to provide regular sexual entertainment e.g. venues which have the very odd stag or hen party providing such entertainment. Section 45A(10) specifies how occasional use is to be calculated:
"(a) each continuous period during which sexual entertainment is provided on the premises is to be treated as a separate occasion, and
(b) where the period during which sexual entertainment is provided on the premises exceeds 24 hours, each period of 24 hours (and any part of a period of 24 hours) is to be treated as a separate occasion."
87. It is important to note that an SEV licence will be required where such entertainment occurs on more than 4 occasions in a twelve month period even where that entertainment is booked by the person hiring the venue. It is also important that any premises where sexual entertainment may be performed are properly supervised, as breach of the above limit without a licence is an offence.
88. Section 45A expressly states that sex shops are not SEV and provides a power to allow Ministers to specify other premises which do not fall into the category of SEV. A further power is provided so that Ministers can specify descriptions of performances or displays of nudity that are not to be treated as sexual entertainment for the purposes of the legislation.
89. Paragraph 19(1) of Schedule 2 of the 1982 Act provides that the employment of anyone under the age of 18 in an SEV is an offence. Section 45B(6)(g) of the 1982 Act modifies paragraph 19(1)(e) of Schedule 2 in respect of SEV to make it an offence for a licence holder or their agents to knowingly permit a person under the age of 18 entry to the SEV at a time when sexual entertainment is being provided, or at any other time without reasonable excuse. An example of a reasonable excuse might be where a plumber's mate is called upon to fix an emergency leak. It is worth noting that the reasonable excuse defence only applies where entry to the SEV is knowingly permitted to a person under the age of 18 at a time when sexual entertainment is not being provided – there is no reasonable excuse defence where entry is permitted at a time when sexual entertainment is being provided.
90. Section 41 of the 1982 Act enables a licensing authority to direct that a public entertainment licence is necessary for certain types of activity. Section 41(2) of the 1982 Act provides that a "place of public entertainment" is any place where members of the public are admitted or may use any facilities for the purposes of entertainment or recreation. Section 76(2) of the 2015 Act amends section 41(2) of the 1982 Act to exclude a sexual entertainment venue from being licensed under a public entertainment licence.
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