Licensing Update December 2010

29 Nov 2010

Christmas TENs

Make sure that you don’t forget to plan well ahead for Christmas, time will quickly be running out to use up your Temporary Event Notices (TENs) - you cannot hold over your quota to next year. With Christmas fast approaching now might be the time to use them to extend the hours on a temporary basis or have additional licensable activities (e.g. live music for a party). If you do wish to use them, you need to give at least ten working days’ notice.

Below is a brief re-cap on TENs:

TENs can be used to authorise relatively small-scale ad hoc events held in or on any premises involving no more than 499 people at any one time.
Personal Licence holders can obtain a maximum of 50 TENs per year.
Each event covered by a TEN can last up to 96 hours.
No more than 12 TENs can be given in respect of any particular premises in any calendar year (1 January - 31 December), subject also to a maximum of 15 days in any year.
There must be a minimum of 24 hours between events.

If you wish to apply for any TENs, please let us know as soon as possible.

New Year's Eve

It is generally permitted to remain open throughout the night on New Year's Eve but you should check your licence to make sure of this. There may also be other restrictions, such as planning permission.

Mandatory Conditions

The application of the mandatory conditions is still causing confusion amongst operators (and indeed Councils!). We’ve previously reported on their effect and ambiguity, here is a quick re-cap of some of the measures brought in:

As of 6 April 2010:

There must be no ‘irresponsible promotions’, including:

a. Drinking games.

b. Unlimited or unspecified quantities of alcohol for a fixed or discounted fee to the public or to a group defined by a particular characteristic, unless with a table meal.

c. Providing free or discounted alcohol as a prize or reward.

d. Providing free or discounted alcohol in respect of a sporting event.

e. Selling or supplying alcohol in connection with posters or flyers which encourage anti-social behaviour or favourably refer to drunkenness.

As of 1 October 2010:

Premises must make available half pint glasses for beer or cider, 25ml or 35ml measures for gin, rum, vodka or whisky, and 125ml for still wine (sparking wine is not subject to this condition).
To ensure that an age verification policy (e.g. Challenge 25) applies to the premises in relation to the sale or supply of alcohol. The policy is required to only accept ID with a photograph, date of birth and holographic mark.

We’ve been answering numerous queries from clients on the mandatory conditions, particularly in relation to the restrictions on ‘irresponsible drinks promotions’. Here’s a reminder:

Permitted:

‘Happy Hours’ and ‘2 for 1 offers’ – so long as they are reasonable in length (no more than 2-3 hours) and are not seen as encouraging customers to drink more or more quickly.
Free/discounted drinks e.g. Christmas offer of a free or discounted single 125ml glass of mulled wine - so long as the alcohol on offer is specified and limited.
Free/discounted alcohol in respect of a sporting event in which a customer participates e.g. a virtual golf bar – so long as the customers aren’t solely viewing the sporting event.

Unlawful:

‘Free pint for every England goal’ – for customers viewing the sport (although customers will be lucky to drink much on this offer!) – free/discounted alcohol in respect of a sporting event.
‘Drink downing’ competitions – activities seen as encouraging customers to drink excessively or rapidly.
‘All you can drink for £20’ or ‘£10 entry and drink free until 10pm’ – offers of unlimited or unspecified quantities of alcohol for fixed or discounted fee.
‘Women drink for free’ or ‘half price drinks to under-25s’ - offers to defined groups for unlimited or unspecified quantities of alcohol for free or fixed or discounted fee.
‘Drink 4 pints and get a 5th free’ – offers rewarding the purchase and consumption of alcohol.
Posters or flyers seen as condoning or encouraging anti-social behaviour or referring to drunkenness in a favourable manner.

“Rebalancing the Licensing Act”- Home Office Consultation

In August the Home Office published a consultation, the purpose of which is clear on reading its title “Rebalancing the Licensing Act, a consultation on empowering individuals, families and local communities to shape and determine local licensing”. The proposals include:

Give licensing authorities power themselves to instigate a review, rather than relying upon representations by their officers or members of the public.
Removal of the geographical proximity requirement of a party making a relevant representation in respect of a licensing application.
More weight given to Police representations.
Tightening the appeal process by giving licensing authorities greater final decision making powers.
Designating health bodies as a responsible authority.
Removal of the evidential burden on Licensing Authorities when applying cumulative impact policies.
Sanctions and decisions (such as reviews) to take effect immediately, unless and until an appeal to the magistrates’ court is successful.
Repeal of Alcohol Disorder Zone legislation as this was not adopted by any Local Authorities, compensated by a new ‘late night levy’ to cover the cost of extra policing or other costs.

Similarly to the implementation of the mandatory conditions, the consultation has not been short of criticism. The finalised proposals following the consultation have not yet been published, so the practical impact remains to be seen, as well as whether the consultation will be challenged and indeed what aspects of the proposals will become law.

Licensing Authorities – Policy & Sexual Entertainment Venues

Several Councils, including Westminster, are reviewing their licensing policy. Westminster’s consultation and proposals share a similar theme to the Home Office’s consultation discussed above. Westminster’s recommendations include:

New measures to encourage the dispersal of customers using licensed premises in the Stress Area after closing time
Take a problem led approach on enforcement, using a range of escalating measures to deal with smokers and drinkers outside premises.
Clarify the meaning of 'exceptions to cumulative impact' within the Stress Area.
Stricter search conditions and encouraged use of shatterproof/plastic glasses for problem premises.
Events associated with the Olympics will be subject to the same standards under the policy as other events.
The Council will consider cumulative impact for applications for open spaces even if they are already licensed.

A number of local Councils are also deciding whether or not to implement legislation which will introduce the infamous “Sexual Entertainment Venue” licensing regime in its area. Implementation of the regime is at the discretion of local Councils, doing so would impose a much stricter application process and high annual licence fees, both of which existing operators would be subject to as they would have to apply for a new licence. The new regime also gives Councils the option of setting a ‘zero quota’ for sexual entertainment venues in its area.

What we’ve been doing to keep warm

Below are a few examples of some of the matters we have assisted our clients with this year:

Advising Westfield in Stratford on over 40 restaurants
Advising the 5* Corinthia Hotel in Whitehall
The opening of the Experimental Cocktail Club in Chinatown

If you require any advice in relation to these or any other issue, please do not hesitate to contact a member of our licensing team.