Variations to Premises Licences
Changes to the operation of the premises (however minor they seem), hours of trading, approved activities in the operating plan or even a change to the occupant capacity of just one person will trigger the need for a major variation.
Minor variations (as detailed in the bullet points below) must be granted and a hearing is not required. For all other “major” variation applications, the procedure is similar to that of a new grant of Premises Licence. The application is advertised and a site notice displayed. The application is open to representations and objections, and a hearing to determine the application must be held.
Any change will require an application for major variation to be submitted to the licensing Board other than:
• a change that does not result in any inconsistency with the operating plan;
• changes restricting or proposing a restriction on the terms that children are allowed entry to the premises;
• a change relating to the details of the premises manager, including substitution of a new premises manager.
If you are taking over a new licensed business and you would like to vary the operating plan the application for transfer of the Premises Licence can be submitted together with the application for variation of the Premises Licence. We can stipulate that the variation sought is a precondition to the transfer and should the variation be refused, the application for transfer would also fall.
What the new procedures mean for you
Timing has always been critical in licensing and under the new regime it becomes even more important.
If you are considering alterations to your licensed premises, increasing capacity or including new activities, please contact us to discuss the implications.
The new regime differs from the old 1976 “consent to alter” section 35 consent, as under the new act a premises must be operated in accordance with the Premises Licence (operating plan and layout plan) an offence is committed if it is not. Timing is key.
The penalties involved in not operating in accordance with the Premises Licence are a fine not exceeding £20,000, imprisonment for up to 6 months, or both!
Tranferring Premises Licences
Under the 2005 Act, applications for transfer are made by the existing or current Premises Licence holder. The exceptions to this are in the following circumstances, the Premises Licence holder has:
• died;
• become incapable or insolvent;
• the holding company or partnership is dissolved;
• the business is to be transferred to another person.
In these situations, the application by a third party (or prescribed person) must be made within 28 days of the occurrence of one of the above events - not a lot of time!
The process
Every application for transfer must be accompanied by the Premises Licence. If for some reason the Premises Licence cannot be produced, a statement of the reasons for failing to produce it must be given. We are still waiting for Premises Licences to come in or seeking corrected Premises Licences.
Once the Board receives the application for transfer under section 33 or 34 of the 2005 Act, they give notice of the application to the Chief Constable who then has 21 days to report on any relevant or foreign offences. We are finding that the Chief Constable is also reporting on applications that they consider have been submitted erroneously. The Chief Constable is duty bound to provide a “notice” to the Board. If the police consider that the application be refused due to consideration of the crime prevention objective, the Board have to hold a hearing. If for any reason there is an issue with the application for transfer and it is refused, the Premises Licence “ceases to have effect”. A challenge is yet to be taken to the courts to ask for a judgement on what “ceases to have effect” really means. Is the Premises Licence in “limbo” as a result of the refused application? Could it be revived by a fresh competent application? Or, is it just as it sounds- that the Premises Licence is lost. I would prefer to not have to consider the point! If you need any assistance with transfers, or if you have any queries, please call our team for assistance.
Relevant offences
Holders of Premises Licences and Personal Licences are obliged to notify the Licensing Board of a conviction for a relevant or foreign offence. If a Premises or Personal Licence Holder is charged with a relevant or foreign offence, they must produce the licence to the court or confirm that they hold these licences. The clerk of court is under an obligation to give notice of any conviction of a Premises or Personal Licence Holder to the Licensing Board.
But what is a “relevant offence”? The Licensing (Relevant Offences) (Scotland) Regulations 2007 provide 48 answers to this question from violent and sexual offences to offences under the:
• Theatres Act 1968
• Poisons Act 1972,
• Licensing (Scotland) Act 1976,
• Copyright, Designs and Patents Act 1988
• Pharmacy Act 1954
• Betting Gaming and Lotteries Act 1963
• Firearms Act 1968
• Trade Descriptions Act 1968
• Gaming Act 1968
• Misuse of Drugs Act 1971
• Immigration Act 1971
• and so on…
The list is extremely wide.
If in doubt please contact us and we will assist as quickly as possible.
What else is changing that you need to know about?
Tobacco and Primary Medical Services (Scotland) Act 2010
The Scottish Parliament passed the Tobacco and Primary Medical Services Bill on 27 January 2010. In 2011 retailers who have internal measurements of over 280 sq meters will have to end the promotional display of tobacco brands. Smaller retailers have to follow suit by 2013. Those selling tobacco will also have to register on a central register. It will be an offence to sell tobacco without being on the register which will invite a fine of up to £20,000 and/or 6 months in jail. It will be an offence for under 18s to buy tobacco and again, we see an agency offence for those attempting to purchase tobacco for those under the age of 18 attracting a fine of up to £5000. October 2011 will see the end of all sales of cigarettes through cigarette vending machines.
Verification of identity for those aged 18-24
Under the Licensing (Scotland) Act 2005, the only accepted forms of ID for age verification are a passport or a European Union photocard driving licence.
Young Scot and PASS have come up with a new Young Scot card which will be approved for those aged 18-26 years old.
We look forward to seeing this new card.
Licensing and regulation of knife dealers
Part 27 A of the Civic Government (Scotland) Act 1982 regulates the licensing of knife dealers. Under these new regulations, you will need to have a knife dealer’s licence if you carry on business as a dealer in:
• knives (other than folding pocket knives with a blade of less than 3.5 inches or knives designed for domestic use);
• daggers (other than kirpans, skean dhus where the blade does not exceed 3.5 inches);
• swords;
• any other article which is has a blade or is sharply pointed.
An application for a knife dealer’s licence is to be made to the relevant licensing authority. Mandatory conditions will be attached to these licences such as keeping records of transactions with customers, identity checks carried out, displays and notices.
Alcohol labelling
In February the Scottish Government announced that, together with other devolved administrations and the Department for Health, it was launching a consultation on alcohol labelling. The feeling being that the industry was not sticking to the voluntary agreement reached in 2007 and if compliance with the current voluntary code did not improve, Nicola Sturgeon would look at mandatory labelling.
What should we see on labels at the moment?
• Information on the number of units
• A message about responsible drinking
• A logo and link for Drinkaware
• The recommended NHS limits
• Advice on drinking when pregnant
The consultation was to run until 9 May 2010. We haven’t seen responses as yet.
Sunday morning on sales in Edinburgh
We tried our hardest, but despite numerous applications for variation seeking earlier hours on a Sunday morning for various clients, the Licensing Board in Edinburgh would not move and refused on sales before 12:30pm on a Sunday. It is possible that the Licensing Board will seek review of premises licences where there if an off sales facility and tables and chairs consent. Councillor Marjorie Thomas was quoted as saying:
"The board has discussed this at great length and we are unanimous in this view. We have taken the views of the licensing forum and the board found that we need to give the community some breathing space. There is also the whole issue of public health and alcohol. To increase licensing hours at this time is not acceptable."
Early hours on a Sunday will only be considered where there are “exceptional circumstances” – for example, a Coronation!
If you would like to discuss any matter arising out of the topics mentioned above or you would like to be updated on the progress of the Criminal Justice and Licensing (Scotland) Bill or the Alcohol Etc. (Scotland) Bill, please contact our experienced and knowledgeable Licensing team.
