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Licensing Act

28 April 2005
Licensing Act

The Licensing Act 2003 received the Royal Assent in July 2003. After much delay it will become fully implemented on "the second appointed day". This has yet to be fixed by the Government but is expected to be in November 2005.

Under the Act responsibility for all licensing will be transferred to Local Authorities. Magistrates will only be involved to deal with appeals from Local Authority decisions. Each Local Authority must have its own policy as to how it will deal with licence applications and in future all licence applications have to be looked at against the four licensing criteria which are:

• the prevention of crime and disorder
• public safety
• the prevention of public nuisance
• the protection of children from harm

There will only be two types of licence; a premises licence and a personal licence.

A premises licence will authorise any number of licensable activities at a particular premises. So for example instead of needing a separate licence for the sale of alcohol and providing public entertainment, premises will now simply have one licence that authorises any licensable activities. The premises licence will be held by the individual or company carrying on the business.

Where, however, the licence includes the sale of alcohol, one individual will need to be nominated as the "designated premises supervisor". Permitted hours for the sale of alcohol are abolished so in theory any premises can stay open and sell alcohol 24 hours a day, but in practice this is unlikely.

Each premises will have to produce an "operating schedule" which will include its operating hours, the activities it is licensed for, and the measures it will take to achieve the licensing objectives. If there are breaches of the licence then the holder of the premises licence and/or the designated premises supervisor may be prosecuted.

A personal licence entitles an individual to sell or authorise the sale of alcohol. The person who is designated as the premises supervisor must hold a personal licence, but in practice operators will probably need more than one personal licence holder and would be well advised to have one such person on the premises at all times when alcohol is being sold.

Carrying on licensable activities without a premises licence or in breach of the same carries a maximum fine of up to £20,000 or six months imprisonment.

All premises with existing licences will have to convert them to a new premises licence during the transitional conversion period which started on the 7th February and ends on the 6th August 2005. Licences that were in existence on the 7th February have "grandfather rights", and provided a valid application for conversion is made during the transitional period, the applicant is entitled to a premises licence on exactly the same terms and conditions as the existing licence(s) including hours of operation.

For example, a public house is entitled to a new premises licence authorising them to sell alcohol up to 11pm Monday to Saturday. At the same time as converting, however, they can ask for their licence to be varied if, for example, they wanted to extend the hours for sale of alcohol beyond 11pm. Under the new scheme certain things which do not currently need a licence will require licensing.

These include serving hot food between 11pm and 5am the following day, live music by not more than two performers and discos at certain private functions. In practice then most premises will probably need to consider a variation rather than a straight conversion.

Similarly all those individuals who currently hold Justices' Licences are entitled to a personal licence provided they lodge their application prior to the 6th August, subject only to a very limited right of the police to object.

The process of applying for conversion and variation of existing licences was supposed to be straight forward. However the Government did not publish the forms until the last minute and then actually changed them after 7th February. The application forms are complicated, lengthy and are supposed to form the basis of "an operating schedule". In practice these forms are proving to be very difficult and ill thought out. The guidance notes are virtually non-existent and no guidance has been issued by the Department for Culture, Media and Sport on its web site.

Some Local Authorities are already raising technical points and sending applications back. Where variations of licences are sought the form and procedure is even more difficult and applications also have to be advertised in the press and on the premises. Premises such as hotels, cinemas and night-clubs which carry on multiple activities over long hours are particularly complicated, but getting the right operating schedule is vital for the continued conduct of the business.

New premises licences will be issued between now and the "second appointed day". On the second appointed day all new premises and personal licences granted under the Act will come into force and all existing licences will cease to have effect. Anyone who has not sorted out their new licences by that date will be unable to trade. It is vitally important therefore that applications are lodged prior to August 6th.

Martin Cowell is a licensing consultant at DLA Piper Rudnick Gray Cary UK LLP.
martin.cowell@dlapiper.com

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