4. Premises Licence
63. The premises licence is a single form of licence for premises which sells alcohol, each licence being tailored to the type of premises in question by reference to a compulsory " operating plan" and a " layout plan". Drafts of these must be lodged by the applicant at the same time as their application for the premises licence. The operating plan should set out clearly the applicant's proposals including the activities that would be undertaken on the premises, proposed opening hours and their policy in relation to access for children. The layout plan of the premises should show, among other things, the area where alcohol will be sold, seating arrangements and areas suitable for children. The form of the operating plan and layout plan are set out in regulations made under the Act.
64. When a licence is being granted, a Licensing Board should be able to determine with certainty the kind of operation which would be permitted in terms of the licence, and be assured that the premises will continue to operate on that basis once a licence is granted.
65. The premises licence does not require renewal every three years as is the case currently. It will remain in force for as long as the premises continues to operate in compliance with the licence and the operating plan, or until such time as it is suspended or revoked by the Licensing Board.
Operating plans and layout plans
66. Operating plans will encourage a flexible licensing regime. They will make clear to the Board how the premises are to be run, will set out what activities will be undertaken on the premises and at what times they will be undertaken, so long as the licence is in operation (unless a variation is sought).
67. In preparing an operating plan, applicants should be aware of the expectations of Licensing Boards and the police about the steps that are necessary for the promotion of the licensing objectives. This does not mean that applicants must check their operating plans with the police or others before submitting them, but when uncertain, Licensing Standards Officers and Licensing Boards could provide advice on matters relating to the licensing objectives.
68. The information provided in operating plans will enable Boards and Licensing Standards Officers to determine if a breach of the operating plan and/or the licence conditions has occurred. Where this is the case the Licensing Standards Officer or the Board will initiate a review of the licence. Boards should note that the Act allows anyone to apply to the Board for a review of the licence on any of the grounds set out in section 36 of the Act.
69. Boards must recognise that there may be circumstances which would reasonably cause a temporary deviation from the trading hours given in the operating plan, for example. a bereavement, illness, holidays, or where the weather makes a premises inaccessible. This is not an exhaustive list but one which simply illustrates certain difficulties which licence holders may encounter. Such circumstance should not ordinarily be considered a breach of the operating plan. Boards are expected to adopt a common sense approach with regard to such cases.
70. Ministers also expect a common sense approach by Licensing Boards where licensed premises, when faced with no demand for customers, wish to close early and therefore not trade for their full complement of licensed trading hours. In considering such issues Licensing Boards should given particular attention to whether these "un-used" hours are preventing new entrants into the market. If so, consideration should be given to changing the operating plan of the premises concerned.
Internet and mail order sales
71. A premises licence will not be required for a location, e.g. a call centre at which an order is taken or placed. A premises licence would however be required for the premises from which alcohol is specifically selected for and despatched to the purchaser, e.g. a warehouse.
Relevant Licensing Board
72. Premises licences are issued by the Licensing Board for the area in which the premises are situated. In the case of any premises that straddle an area boundary, a licence will be issued by the Licensing Board for the area in which the greater part of the premises is situated. Where the premises is located equally in two or more areas, the applicant may choose to which Board an application should be made. In the rare cases where such premises exist, it will be important that the Licensing Boards concerned maintain close contact about the grant of the premises licence, inspection, enforcement and other licensing functions in respect of these premises.
73. To protect public order and safety, controls at certain sporting events are in place to prevent alcohol being consumed on designated sporting grounds for designated events. Designation of both the sporting ground and the event is made by Ministers.
74. Alcohol controls imposed under existing legislation do not apply to a non-designated event at a designated ground.
75. Licensing Boards have discretion to allow the sale of alcohol inside designated sports grounds for non-designated events having first taken into account a police assessment. Advice from the Police should be sought of the risk to public order and safety that may arise from a specific event or specific type of event.
Applications for variations to premises licences
76. Premises licence holders can apply to the Licensing Board which originally granted the licence for variations to the terms and conditions of the premises licence. All such applications must be accompanied by the original premises licence where possible. The Act allows for two procedures for Boards to follow: one to deal with applications for major variations, and a simpler one for applications for minor variations.
77. The procedure Licensing Boards must adopt when they are considering an application for a major variation to a premises licence is set out in section 30 of the Act.
78. The Act defines a major variation as being any variation of: -
- Any of the conditions to which the licence is subject (other than those to which the licence is subject by virtue of section 27 (1);
- Any of the information contained in the operating plan contained in the licence;
- The layout plan contained in the licence: or
- Any other information contained or referred to in the licence
79. These include an addition, deletion or other modification.
80. Where a Board refuses an application for a variation, the Licensing Board's decision must be based on the statutory grounds for refusal. These are similar to the grounds for refusal of an application for a licence. Licensing Boards may make their own variations to the licence conditions where it grants the variation applied for, subject to the provisions of section 27(10) of the Act.
81. Licensing Boards should note that the statutory notification and objections procedures set out in sections 21 and 22 of the Act apply to applications under this section for major variations to premises licences. All those persons with a statutory right to be notified must be notified of the proposed major variation, and that any person can make representations and objections in respect of the proposed variation.
82. Section 29(6) of the Act defines a minor variation as being:
- Any variation of the layout plan if the variation does not result in any inconsistency with the operating plan;
- Where children are allowed entry any variation that restricts their terms of entry;
- Any variation in relation to the premises manager; and
- Any other variation that is prescribed.
83. Boards should note that any proposed variation in relation to access by children, which would reduce the amount of access allowed to children is classed as "a minor variation". Any proposal to increase access by children would still require a full determination procedure by the Board.
84. Ministers may prescribe further minor variations. These will be set out in regulations made under the Act.
85. The Act provides a simple procedure for licensees to make minor variations to their premises layout which could be approved in a simple and straightforward way. Such changes are those that do not have any impact on the licensing objectives. Therefore, where an application is made in respect of such a minor variation the notification procedures do not apply and Licensing Boards must grant the application.
Objections and representations
86. The new licensing system allows anyone to object to or make representations to a Licensing Board about any application for a premises licence. Whilst this is new to Licensing Boards with respect to liquor licensing the provisions in the Act relating to objections are similar to objections procedures set out in schedules 1 and 3 the Civic Government (Scotland) Act 1982 with which Boards will be familiar.
87. Under the Act anyone is entitled to make objections or representations in relation to:
- an application for a premises licence;
- an application for a major variation of a premises licence, i.e. a variation of a type which would have to come before the licensing board for a hearing, or one which had been referred to the licensing board for a hearing; and
- an application for an occasional licence
88. The main difference between an objection and a representation is that the representation is concerned with the conditions or suggestion of possible modifications that could be made to the operating plan and layout plan only of a possible licence and not its granting in principle. Representations can also be made in support of the application. Licensing Boards are required to have regard to any objections or representations made to it. Boards may only refuse a premises licence if one of the statutory grounds for refusal, has been met. Even if there are no objections or representations, the licensing board must consider the application and refuse it if the application fails on a statutory ground.
89. Whilst any person may object, frivolous and vexatious objections can be rejected by Licensing Boards. This concept is not new and Boards should address each case on its own merits, based on its local knowledge of the area and those that will be directly affected by the granting of a licence. Expenses can be recovered from objectors who make vexatious or frivolous objections
Transfer of premises licences
90. The holder of a premises licence may apply for the transfer of the licence to another person. On receipt of such an application the Licensing Board must notify the application to the chief constable for their area and the chief constable must respond within 21 days.
91. Where the chief constable notifies the Licensing Board that the person(s) to whom it is proposed to transfer the licence (or connected persons) has been convicted of a relevant or foreign offence then the chief constable may also make a recommendation for refusal of the transfer application.
92. The Executive is currently developing regulations which will set out the range of offences that will be deemed to be relevant offences for the purposes of the Act. Discussions are currently on going with the Scottish Courts Service, the Crown Office and the District Courts Association. It is expected that the Executive will consult on a draft of the proposed regulations in the summer of 2007 with the draft regulations being laid before Parliament as soon as possible after the consultation period.
93. The procedure that Licensing Boards must adopt on receipt of the chief constable's notice are set out in sections 33 of the Act Where the notice reports that no conviction is found the transfer must be granted. Where the notice reports a conviction the Board is under a duty to hold a hearing. The only ground on which the transfer application may be refused is that it is necessary to do so for the purposes of the crime prevention objective. Otherwise the application must be granted.
Transfer on application of person other than licence holder
94. An application can also be made for a transfer of a premises licence by the proposed transferee rather than the licence holder. All of the notification procedure set out in section 33 applies to applications for transfer of a premises licence under this section.
95. The transferee may make an application to the Licensing Board within 28 days where the licence holder has died, become insolvent or incapable, or the business is being sold or transferred to that person. A transferee can apply only if the transferee has a prescribed connection to the licence holder or the premises as set out in regulations made under the Act.
Applications to change the named premises manager
96. The Act allows for a change of premises manager in relation to any premises. Licensed premises cannot operate without a premises manager (being in post) as this would be a breach of one of the licence conditions.
97. Where there is a change of premises manager, before the new premises manager can act as such, his or her name needs to be added to the licence. The Act allows for the proposed new premises manager to take up post, pending the granting of an application to vary the premises licence so as to add the new premises manager's name to it.
98. This will help ensure that changes of premises managers can take effect quickly so as to enable businesses to continue to operate with the minimum disruption.
99. The Act provides that any variation of the information contained in the licence relating to the premises manager (including a variation so as to substitute a new premises manager) is deemed to be a minor variation.
Provisional premises licences
100. A premises licence application is required to be made in relation to premises which are being constructed or converted for use as licensed premises. A premise licence granted for such premises is referred to as a "provisional premises licence". A provisional premises licence has no effect until confirmed by the Licensing Board. The licence has to be confirmed within 2 years otherwise it will automatically be revoked. The 2 year period can be extended if the construction or conversion work of a premises is delayed for reasons outwith the licence holder's control. The procedure for handling these and confirming provisional premises licences are set out in sections 45 and 46 of the Act
Reviews of premises licences
101. The procedures set out in the Act for reviewing premises licences represent a key protection for the community where problems associated with crime and disorder, public health and safety, public nuisance or activities harmful to children are occurring.
102. At any stage following the grant of a premises licence, any person may ask the Licensing Board to review the licence in circumstances where one or more of the conditions to which the premises licence is subject has been breached, or on any other ground relevant to one or more of the licensing objectives. Licensing Boards may initiate their own reviews of premises licences.
Powers of a Licensing Board on the determination of a review
103. Licensing Boards have a new range of sanctions, should such action be deemed necessary following a review hearing, depending on the individual circumstances of each case. Those sanctions are:
- To issue a written warning to the licence holder;
- To make a variation of the licence;
- To suspend the licence for such a period as the Board may determine; and
- To revoke the licence
- 104. Where a variation is proposed, Boards may provide for the variation to apply only for such a period that they may determine.
105. It is hoped that, in the majority of cases, transgressions will be resolved before there is a need for Boards to apply sanctions, for example, through discussions between LSOs and the licence holder. This means any cases that reach the stage of a review, and the potential imposition of sanctions, will have a history of non-compliance, and for that reason will not be entirely trivial. Boards will be faced with a range of different scenarios and have a choice of action that they can take.
General extensions to licensing hours
106. Section 67 of the Act provides a new power for Licensing Boards to grant general extensions to licensed hours in connection with special events of local or national significance. This can apply to the whole of the Board's area or only to specified parts; licensed hours generally or only to specify descriptions of those hours; and all relevant premises in the Board's area or only to specified descriptions of such premises.
Occasional extensions to licensing hours
107. Some dates of holidays etc will change annually, but it should normally be possible for applicants for premises licences to anticipate special occasions which occur regularly each year, such as bank holidays and major local events. As such, appropriate opening hours for these occasions should be included in their operating plan. However, Boards should recognise that events of local, national or international significance will arise from time to time which could not have been anticipated when the operating plan was prepared. Such events can give rise to the need to vary the conditions of large numbers of premises licences.
108. In such circumstances it will be for Licensing Boards under section 67 of the 2005 Act to make a determination for premises to be open for specified, generally extended hours on these special occasions. Examples might include a one-off local festival, a Royal Jubilee, or local festivals, weddings, funerals, parties, conferences, sponsored events, any other social function that may go on early or late.
109. Boards have a wide discretion about who should come under such a general extension ranging from the whole of a Licensing Board's area to a specified locality and from all premises to only those of a specified description. Even if granted such a determination does not require any licensed premises to be open for the sale of alcohol during any or all of the period of extension hours specified.
110. It is a matter for Licensing Boards on how they publicise the granting of a general extension of hours. At a minimum the Board may wish to post details on its website. However the Board is under a statutory duty to notify the appropriate chief constable and the licence holders to whom the determination applies.
111. Flexibility to deal with local circumstances is a vital component of the new licensing regime. However, local discretion must be balanced with a clear and effective national framework within which Boards must operate. This is reflected in the requirement that all premises licences issued under the Act will be subject to a range of mandatory licence conditions set out in schedule 3 of the Act. This is further supplemented by a range of discretionary licence conditions that Boards can choose from that may be appropriate to apply to meet local circumstances.
112. A Board cannot impose any discretionary condition which: -
- Is inconsistent with any condition
- to which the premises licence is subject by virtue of section 27(1) of the Act, or
- prescribed in regulations
- Would have the effect of making any such condition more onerous or more restrictive, or
- Relates to a matter (such as planning, building control or food hygiene) which is regulated under another enactment.
Late Opening Conditions
113. Licensing Boards, under section 27(3) of the Act, must attach further conditions to any licence premises which operates after 1 am. These are set out in regulations made under the Act and are summarised below.
Late Opening Conditions which are applicable to all
114. There is one mandatory condition which must be attached to the licences for all premises that state in their operating plan that they intend to open after 1 am. This condition requires each premises to have present between the hours of 1 am to 5 am a person trained to the satisfaction of the Licensing Board in administering first aid.
115. Licensing Boards may wish to note that employers are already required by law to make an assessment of significant risks concerning injury and ill health and that the Health & Safety Executive approve courses and training organisations to train first aiders in the workplace. Lists of first-aid training organisations in the relevant local area are available from the HSE.
Late Opening Conditions applied to certain premises
116. To support the objectives of the Act, Ministers intend that certain premises should have further mandatory conditions attached to their premises licence if they list in their operating plan that they wish to operate after 1 am. Such conditions are appropriate and proportionate in meeting the needs of public safety and tackling crime. For example a small restaurant has a very different effect on the night-time economy when compared to a large nightclub or 'super pub'.
117. A definition of those premises for which Licensing Boards will be required to attach these additional conditions is set out in the regulations and is reproduced below.
(2) That description is premises-
(a) where live or recorded music with a decibel level exceeding 85 will regularly be provided;
(b) where there will be provision made for-
(i) dancing; or
(ii) entertainment in the form of a person performing an act of an erotic or explicit sexual nature;
(c) which, when fully occupied, are likely to have more customers standing than seated; and
(d) the capacity of which is at least 200 people.
118. The intention of this definition is to differentiate those premises which will attract large amounts of customers and where the consumption of alcohol is a major component of the premises operation. Such additional mandatory conditions are not necessarily appropriate for other late opening premises, e.g. hotels and restaurants and so they are excluded from the definition.
The additional conditions to be applied are
- The presence of a designated person who holds a personal licence to be present on the premises from 1 am until 5am or the time at which the premises next close. This need not be the designated premises manager required by section 19 of the 2005 Act. If it is not, the designated person has responsibility for the premises during the premises manager's absence.
- Each premises must have written policies concerning evacuation and the prevention of the misuse of drugs on the premises. Licensing Standards Officers may ask to see such policies. As part of the staff training it would be expected that staff would be aware of these policies and how to implement them. Advice on developing a drugs policy can be found in the guidance issued by the Home Office on 'Safer Clubbing'.
- Each premises must install to the satisfaction of the appropriate Chief Constable a CCTV system. Any system installed would be required to meet with the requirements of the Data Protection Act 1998. The Information Commissioner has issued a code of practice and a small users' checklist which contains useful information. A premises required to have CCTV as a condition of its premises licence would be in breach of that licence if they were to operate without the CCTV system in good working order. Such premises would be open to having their licence reviewed by the Board for a breach in their conditions and behaviour which was against the licensing objectives with the ultimate sanction of revocation of the licence being available to Licensing Boards.
- Each premises would also be expected to check their toilets on a regular basis to ensure the safety and wellbeing of people using these facilities. This must be the responsibility of at least one member of staff however the condition does not require that this must be their only duty.
- Any person acting in the capacity of a door supervisor must be the holder of a licence granted under section 8 of the Private Security Act 2001.
Additional Discretionary Conditions for Late Opening
119. Licensing Boards when considering any premises licence whose operating plan states that they wish to operate after 1 am may find it appropriate to supplement the mandatory late opening conditions with other conditions. The addition of such conditions should be appropriate and proportionate and made on a case by case basis after consideration of antisocial behaviour reports submitted by the Police and the effective delivery of the licensing objectives of the 2005 Act.
120. A Licensing Board may attach a condition which is mandatory for certain premises to a premises licence which fell outwith the prescribed definition if they thought it necessary and proportionate.
121. A Licensing Board may also decide the time at which individual conditions should come into operation for each licence. For example in some circumstances it may be appropriate to have stewards on duty from 10 pm, rather than from 1 am.
122. Listed below are conditions that Boards may wish to consider. This is not an exhaustive list and does not restrict Licensing Boards in any way. Boards may wish to consider applying such conditions to a premises licence if circumstances and the licensing objectives warrant such application. For example, in a particular premises or type of premises it may be reasonable to ban the use of glass to ensure that glasses and bottles are not used as weapons, or to prevent accidents on a dance floor when such receptacles are dropped. However it may be disproportionate to apply such a condition to the premises licence for a restaurant.
123. Conditions that Boards may wish to consider include:
- Active membership of any Radiolink or Pubwatch-type scheme: where a local scheme based on radio link to the Police or Pubwatch or a scheme with similar principles exist, the premises should be a member. In considering this option Licensing Boards should consider whether any scheme has the resources to support an influx of members.
- Participation in the "Best-Bar None" schemes which aim to promote safer premises.
- Closure Policy, e.g. the last 30 minutes of music must be slow and considerably quieter.
- Last entry policy/curfew on entrance
- Staff present who have undertaken Advanced First Aid training: Boards should take into consideration local arrangements on busy nights and link to the city centre triage may be a more appropriate option.
- Premises to have a glass collection policy.
- The use of plastic or toughened glass where non-glass or toughened glass receptacles are required to be used throughout the premises.
- Agreed times for the disposal of glassware: disposal of glassware should be made at a reasonable time as agreed by the Licensing Board.
- Noise control: steps should be in place to minimise noise leakage from the premises.
- Staffing policy: a personal licence holder must be nominated as being in charge at all times and to be on the premises, each bar must be supervised by a personal licence holder.
- Register of staff: a register must be maintained by the nominated person in charge each day and or at shift handover times.
- Door control policy: consideration should be given to best practice used throughout the industry and again to which premises such measures are applied. Options could include
- Door supervisors wearing yellow reflective tabards
- How door stewards are able to communicate with each other
- Door steward minimum numbers or ratio to clientele
- Ensuring no bottles or glasses are removed by customers leaving the venue.
- Search policy: rather than having a blanket search policy, to use a search policy which is appropriate to trading conditions perhaps in conjunction to discussions with the police.
- Policies to ensure patrons are not put in vulnerable situations after leaving e.g. allowing the phoning of a taxi and waiting in a specific area.
124. In applying other conditions Licensing Boards should do so in line with the its licensing policy and the licensing objectives of the Act. It must also apply conditions fairly across the sector so as not to disadvantage one premises against another. This however would not be relevant if a Licensing Board was seeking to tackle a problem particular to a certain premises.
125. In producing a policy on hours, Boards should consider the effect on a premises' surrounding neighbours. This is a particular problem with late opening premises. Boards should be aware that complaints arise not only from the general noise of activities on the premises but from people leaving and the closing and opening routines. For example, the disposal of glassware, restocking deliveries, closing shutters and activating alarms all of which can lengthen the hours of disturbance. Such disturbance may not only continue for a period after closing could begin early in the morning as the premises prepares for the next day's trade. It is hoped that many such problems can be solved through mediation.
126. The need to tackle irresponsible promotions and the associated problems that they can cause is central to the policy objectives of the new licensing system. Ministers recognise that not all alcohol promotions are irresponsible and that the majority of licensees act responsibly in running their businesses. However, the undesirable health and social consequences of binge and underage drinking, which can be encouraged by irresponsible promotions, are widely recognised. Current trends suggest that this is a particular problem for young women.
Ministers consider that "Irresponsible promotions" are those promotions which actively encourage people to consume a large quantity of alcohol in a short period of time. This may be done by cutting prices for a specified short period - e.g. happy hours - or offering unlimited quantities of alcohol for a set price. This may also include promoting competitions based on increased consumption of alcohol. Irresponsible promotions would also include "upselling".
127. This type of activity not only runs counter to the overarching objectives and values of the new licensing system, it also increases the likelihood of antisocial and criminal behaviour, increases the burden on the NHS and the police and discredits responsible members of the licensed trade. It would also be unacceptable to leave unchallenged an area of activity which undermines the wider work the Executive is engaged in under the Plan for Action on Alcohol Problems, the overall purpose of which is to reduce alcohol related harm in Scotland. The Act sets out a new national policy designed to target irresponsible alcohol promotions by way of applying a standard national licence condition to all premises licences contained in schedule 3 to the Act. Ministers consider that there is a clear need for a national lead on this issue and for national consistency to set a framework for the future. Ministers believe that one of the most effective ways to tackle promotions is to tackle price. Such policies, based on non-differential pricing, have already been trialled successfully in Scotland. The Act sets out in the form of a national licence condition for all premises licences a 'non-differential' pricing policy which requires licence holders to maintain their price list for a minimum of 72 hours. Prices may only be decreased or increased on a 72 hour frequency.
128. Ministers felt, however that on its own this was not enough to prevent other generic types of promotion such as upselling, a fixed amount for all you can drink and free drinks linked to entry fees. Therefore, Schedules 3 and 4 to the Act also provides a series of mandatory national licence conditions applicable to irresponsible promotions would ban a defined list of generic promotions.
129. Ministers do not believe that this policy can presently be generally extended to off-sales promotions in the absence of any concrete evidence to suggest that purchasing a large quantity of alcohol in an off-licence is linked to immediate consumption and to binge drinking. However, the Act does extend some of the mandatory conditions to off-sales particularly those aimed at young persons. These are set out below.
130. Those are promotions which: -
- Relate specifically to an alcoholic drink likely to appeal largely to people under the age of 18;
- Is based on the strength of any alcohol;
- Rewards or encourages - or seeks to reward or encourage - drinking alcohol quickly; or
- Offers alcohol as a reward or prize, unless the alcohol is in a sealed container and consumed off the premises.
131. The Executive is currently considering research into establishing whether or not there is a direct causal link between binge drinking and excessive drinking and promotions in off-sales. A power is provided for Ministers to update the list of mandatory licence conditions by modifying the schedule should the research suggest this may be necessary, in light of further policy consideration, or in light of experience gained once the Act is implemented.
132. It should be emphasised that the proposals in the Act will restrict types of promotions, that encourage binge drinking and underage drinking, not products themselves. The proposals in the Act address the issue of binge and under age drinking and the length of time a product has been on the market is irrelevant.
133. It may be that in some cases the determination of what is and is not an irresponsible promotion will be left for the courts to determine. This may arise where a member of the public, the police or the Licensing Standards Officer has brought to the attention of the Board a case where they feel such a promotion is being offered. Ministers expect that this should be dealt with initially at a local level by the Licensing Standards Officer, who would mediate between the licensee and the Board to agree whether or not any promotion breached the mandatory licence conditions. In most cases it is hoped that these cases can be resolved in discussion between the LSO and the licensee without any sanctions being applied by the Board. However, where the Board feels that further action is appropriate, it would instigate a review hearing to determine what action, if any, needed to be taken against the licensee concerned.
134. The licensee would be able to appeal the decision of the Board in the courts.
135. It is expected that the mandatory conditions set out in the schedule 3 to the Act provide a clear statement of what would be considered an irresponsible promotion, and should not lead to ambiguity in many cases.
136. The provisions in schedules 3 and 4 concerning irresponsible drinks promotions are generally directed at promotional activity and not at pricing activity. The Parliament legislated to prevent the irresponsible promotions listed in Schedules 3 and 4 being carried out on licensed premises. Ministers do not intend to prescribe the prices at which any alcohol or measure of alcohol is to be sold.
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