The Licensing Act: Questions and Answers

Summary

The new Licensing Act will require all premises where licensable activities are being provided to obtain a Premises Licence. Licensable activities include the supply of alcohol, the provision of entertainment and the sale of hot food after 11.00pm. It will be an offence to provide these activities without there being a Premises Licence in force.

Individuals managing licensed premises may obtain a Personal Licence, which is similar in concept to a driving licence and will ensure that the individual concerned has had the correct training to authorise the sale of alcohol. A person must be nominated as the responsible individual at the premises and this person will be called the Designated Premises Supervisor (DPS).

Premises Licences will be issued by the licensing authority (i.e. the Council) where the premises are situated. Personal Licences will be issued by the authority where the individual is ordinarily resident.

A licensing authority must issue licences with a view to promoting the licensing objectives. These are:-

The prevention of crime and disorder;
Public safety;
The prevention of public nuisance; and
The protection of children from harm.

The introduction of the Licensing Act will see the abolition of "permitted hours" for sales of alcohol. However, this will not mean that premises can open 24 hours a day, without an application being made and granted to authorise this. In theory though, 24 hour opening should be possible.

Individuals, businesses and authorities such as the police will have a right to review a Premises Licence which may ultimately lead to its revocation. These people will also be entitled to object to the grant of a new licence.

What is Regulated Entertainment?

Regulated entertainment is entertainment provided in the presence of an audience, for the purpose of entertaining that audience. It includes:-

The performance of a play;
The exhibition of a film;
An indoor sporting event;
Boxing or wrestling;
A performance of live music;
Any playing of recorded music;
A performance of dance;
Entertainment of a similar description (e.g. a circus will be licensable)

What happens to existing licences?

The 6 month transitional period for conversion of existing liquor, entertainment, cinema, theatre and night cafe licences will commence on 7th February 2005.

During this period, applications should be submitted to the licensing authority where the premises are situated, for conversion of existing licences to a new Premises Licence. Applications can also be made for a Personal Licence, by persons who are currently holders of a liquor licence (including joint holders).

Applicants for conversion of existing licences to a Premises Licence will generally keep the rights that they currently have under the existing licences. This principle, called "grandfather rights" means that premises currently benefiting from an Entertainment Licence and Special Hours Certificate will retain these rights (and opening hours) when the licence is converted. In exceptional cases, the police may object to the conversion.

There is also a procedure whereby existing liquor licence holders may obtain a Personal Licence during the transitional period, using a simplified procedure. These applicants will not have to obtain a new Personal Licence training qualification.

The two systems of licensing will run side by side for a period, until the Act is fully implemented. The newly issued licences will remain dormant until they are activated on the second appointed day (which is still to be announced by the Government but is likely to be in November 2005).

To convert a licence what will an applicant have to do?

A person may apply for conversion of licences during the 6 month transitional period. The applicant for conversion must be the holder of the licence or have the holder's consent.

The application must specify the activities currently being carried on at the premises under the existing licences. The applicant must nominate a DPS if a liquor licence is being converted. This person will be responsible for overseeing sales of alcohol once the new licence is in force.

A standard form will be published for completion when converting a licence. A fee will be payable when making the application. The following additional documents must also be lodged with the licensing authority:-

The existing licences (originals or certified copies);
A plan of the premises (in a format to be published);
Consent of the proposed DPS and the current licence holder (where applicable); and
Any children's certificate (other ancillary certificates).

If the licensing authority fail to determine the application for conversion within 2 months, it is treated as having been granted.

What about applications for a new Premises Licence?

Applications for a new Premises Licence can be made during the transitional period but will not come into force until the Act is fully implemented.

A person (including a company and a person over 18) may apply for a Premises Licence. The applicant must generally propose to carry on a business involving the use of the premises for the licensable activities.

Applications must be submitted to a licensing authority on a standard form and enclosing the appropriate fee (as yet unpublished!) The application must include an operating schedule, a plan of the premises and the proposed licensable activities. The application will also have to be advertised outside the premises and in a newspaper.

If there are no objections made to the application by persons living or working near the premises, or by bodies such as the fire brigade or the police, the authority must grant the licence.

If there are objections, the authority must hold a hearing to consider the application. Following the hearing, the authority may grant the application, may modify and grant it, or may refuse it.

Where premises are yet to be built, a Provisional Statement may be applied for, which gives limited assurance that a Premises Licence will be granted once the premises have been built.

What is an Operating Schedule?

An example of an Operating Schedule should eventually be published on the DCMS website.

This document must be produced specifically for each premises and will specify the activities taking place, the times of those activities, the DPS where alcohol is to be supplied, whether alcohol is to be supplied for consumption on or off the premises, steps to promote the licensing objectives etc.

We can help you prepare an Operating Schedule for your premises.

How can a licence be varied?

The process for varying an existing licence is almost identical to the process for applying for a new licence. A Premises Licence holder may, for example, wish to extend opening hours for the supply of alcohol from 2.00am until 3.00am each weekend.

Residents and authorities such as the police will have a right to object to the application and this will have to be heard by a licensing authority committee. The committee may grant the application in whole or in part or may refuse it.

If there are no objections then the application for variation must be granted.

We can help you vary or oppose the variation of a Premises Licence.

What about varying the DPS?

There is a far simpler procedure to vary the licence to appoint a new DPS. An application form must be submitted to the authority with the fee and the consent of the proposed individual. The individual must be a Personal Licence holder.

An application may be submitted for the application to have interim (i.e. immediate) effect. This will normally be faxed to the authority.

The police have a right to object to the application in exceptional circumstances.

There can be only one DPS per premises at any one time.

How can a Premises Licence be reviewed?

Once a Premises Licence is operational, a person living or working nearby or a body such as the police may apply to the licensing authority to review a licence.

The authority may disregard certain requests for the review of a licence, especially where a request has been made to review a licence in the recent past on identical grounds.

Following a request for review, the authority must hold a hearing to consider the ground for review and may modify the licence, exclude an activity (e.g. exclude alcohol supplies) or even revoke the licence.

If a licence is revoked, the holder of the licence has a right to appeal the decision to the Magistrates' Court.

How long does a Premises Licence last for?

A Premises Licence lasts indefinitely unless it is suspended or revoked. An annual continuation fee will be payable. Details of the fee are awaited.

What about clubs?

Clubs have similar rights to apply for conversion of an existing registration certificate into a Club Registration Certificate.

Club Premises Certificates may be varied and reviewed in the same way as Premises Licences.

What happens to extensions under the new Act?

Extensions (Special Orders of Exemption) are effectively replaced by Temporary Event Notices.

Notice may be given to an authority to use premises for one or more licensable activity for a period not exceeding 96 hours. The event no longer needs to be "special".

A TEN must be served 10 working days before the event begins and cannot apply where more than 499 persons will be on the premises at any one time.

The police have a right to object to a TEN. The licensing authority must hear the application and police objection at a committee hearing if this is the case.

What is a Personal Licence and how long does it last for?

A Personal Licence authorises an individual to supply, or to authorise the supply of, alcohol in accordance with a Premises Licence.

An application for a Personal Licence is made to the licensing authority where the applicant is ordinarily resident. A licence lasts for a period of 10 years from the date of grant, unless it is surrendered, suspended or revoked.

What is the procedure for applying for a Personal Licence?

A new applicant for a Personal Licence must hold an accredited Personal Licence qualification, must be over 18 and must not have had a Personal Licence forfeited in the last 5 years, nor been convicted of a relevant or foreign offence.

The police have a right to object to a Personal Licence application.

What happens if an activity is carried out without a Premises Licence?

This is an offence subject to a maximum fine of £20,000 or 6 months imprisonment, or both.

What about gaming machines?

The licensing authority will take over responsibility for granting gaming machine permits from the courts.

An applicant will be able to apply for a permit for up to 2 machines in writing, without the need for a hearing.

We are still waiting for confirmation from the Government that existing permits will remain in force or whether new permits will have to be applied for on conversion.

Please note that this article summarises complex legislation and is not intended to be relied upon as a definitive statement of the law.

Carmela Inquanta Partner, 020 7544 5643 carmelai@sghlaw.com