Dundee City Licensing Board - 20/01/2011

At a MEETING of the DUNDEE CITY LICENSING BOARD held at Dundee on 20th January, 2011.

Present:-

BAILIES

COUNCILLORS

Bailie Roderick A J WALLACE, Convener, in the Chair.

The minute of meeting of this Board of 9th December, 2010 was held as read.

I LICENSING (SCOTLAND) ACT 2005

(a) NEW GRANTS

The Board agreed to grant the above application.

The Board, having heard from an agent on behalf of the applicant and the Board's Legal Adviser, agreed to grant the above application.

The Board agreed to grant the above application.

(b) VARIATIONS (MAJOR)

The Board agreed to grant the above application for both ground and first floor to operate as function suites. Local conditions re minimum charge for entry and late opening conditions to be removed. Core hours to be 11am to 1am daily. Existing children and young persons consent for first floor function suite to also apply to ground floor.

The Board, having heard from the applicant on their own behalf, agreed to grant the above application for Balcony Bar to open until 2.30am as Nightclub. Minimum charge to be applied from 11pm. Local condition 1 amended to include automatic playback system, karaoke, live bands and TV. Children to be permitted on the premises when accompanied by a responsible adult for the purpose of having a meal. Young persons will be permitted on the premises without adult supervision at the discretion of the management.

Variation to core hours on Saturdays 11am to 1am and on Sundays 11am to 12 midnight. Club or other meetings to be held outwith core hours. Children to be permitted access for football matches at Dens and Tannadice for two hours prior to kick-off and one hour after match but no later than 8pm.

The Board noted that the above application was incompetent in the absence of a site notice being lodged and declined to deal with it.

The Board, having heard from an agent on behalf of the applicant, agreed to grant the above application for variation to allow children and young persons in the balcony and glass room during core hours accompanied by a responsible adult. Young persons to be allowed access during opening hours until 9pm accompanied by a responsible adult. Change hours of opening for on-sales on Sundays to 11am until midnight and alcohol to be sold for consumption off the premises between 10am and 10pm Mondays to Sundays. Provision of conference facilities etc outwith core licensed hours but no trading to take place outwith core licensed hours.

II GAMBLING ACT 2005

(a) LICENSED PREMISES GAMING MACHINES - NEW

The Board agreed to grant the above application for three machines.

Bailie Regan declared a non-financial interest by virtue of frequenting the premises.

The Board agreed to grant the above application for three machines.

III DISABILITY EQUALITY SCHEME - ANNUAL REPORT FOR 2010

The above report (Appendix I) was submitted and approved.

IV STATEMENT OF LICENSING POLICY 2011/2013 AND BUTLERS RETAIL LTD V DUNDEE CITY LICENSING BOARD

There was submitted Agenda Note AN9-2011 informing Board members of the Sheriff Principal's judgement in the recent appeal by Mitchells & Butlers Retail Ltd ("M & B Ltd") against the decision of the Licensing Board to prohibit the continuance of a discount card scheme at the premises operated by M & B Ltd at The Nether Inn.

The effect of the judgement (Appendix II), which would not be appealed, was effectively to declare that the Board's policy on unlawful price variations was incompatible with the 2005 Act insofar as it seeks to prevent different prices for different categories of customers in the same licensed premises. Rather than embark at this stage upon a costly exercise to amend the policy statement, which would involve statutory consultations under Section 6 of the 2005 Act, it was agreed that the Board would simply declare that part of its policy was now inoperable and would not be enforced. It would be a superfluous exercise to go through a statutory consultation to amend the policy when the Board had no choice but to comply with the above judgement.

V AD HOC LICENSING FORUM MEETING - PERTH - 21ST JANUARY, 2011

There was submitted Agenda Note AN10-2011 informing the Board that the Convener had been invited to attend a meeting of a standing ad hoc licensing forum organised by Perth and Kinross Licensing Board in Perth on 21st January, 2011. The forum is to produce guidance for Licensing Boards on a number of issues. The Board was asked to authorise the Convener's attendance at this meeting and for him to recover any expenses incurred by him in so doing.

The Board agreed accordingly.

VI REQUEST FOR REVIEW HEARING

The Board agreed to a review hearing in respect of Bruce Kane - The Bowbridge Bar, 2 Main Street, Dundee, DD3 7EZ.

VII STANDARDS IN PUBLIC HOUSES

Board members raised concerns that standards in Dundee's public houses were not being maintained in relation to fabric and cleanliness.

The Convener agreed to meet with the Head of Environmental Health and Consumer Protection on this matter and report back to a future meeting of the Board.

Roderick A J WALLACE, Convener.

APPENDIX I

DUNDEE CITY LICENSING BOARD

DISABILITY EQUALITY SCHEME

2007-2010

ANNUAL REPORT FOR 2010

January 2011

Publication

This report and the Board's Disability Equality Scheme are available on the Dundee City Council website at the following address - www.dundeecity.gov.uk.

Alternative formats

This report has also been published in an Easy Read version which can be accessed on the Council website at the above address. A hard copy in Easy Read, LARGE PRINT or other formats and languages can be requested by contacting the General Services Office, 18 City Square, Dundee DD1 3BY or by Freepost, Floor 2, Tayside House, Dundee DD1 3RB.

Telephone (01382) 434403 or 433558

Fax (01382) 434077 or 433060

Minicom (01382) 433310

E-mail: stuart.galloway@dundeecity.gov.uk or disability@dundeecity.gov.uk.

1 DUNDEE CITY LICENSING BOARD DISABILITY EQUALITY SCHEME - AN INTRODUCTION

1.1 The Dundee City Licensing Board Disability Equality Scheme ("the Scheme") was first published on 4th December 2006. A copy of the current Scheme is available on the Dundee City Council website. In the Scheme, the Board affirms its commitment to promote equality of opportunity for disabled persons in the field of licensing, both from the point of view of applicants for/objectors to licences and patrons of licensed premises. This commitment is reinforced by the Board's Statement of Licensing Policy under the Licensing (Scotland) Act 2005. A copy of that policy can also be accessed on the Council website. The Board will shortly be consulting with interested parties as to the continuation of the current Scheme until April 2012, when new procedures under the Equality Act 2010 ("the EqA") come into effect.

1.2 The Scheme contains a statement of the Board's support for the Dundee City Council Equality and Diversity Scheme to recognise the fact that, although it is a separate statutory body from the Council, the Board operates within the framework of, and through staff employed by, the Council. To that end, the Board takes note of the Council's own annual reports on disability equality and would direct interested parties to these reports for details of progress made by the Council, particularly in relation to members of staff who also carry out duties for the Board.

2 REVIEW OF THE BOARD'S ACTIVITY IN DISABILITY EQUALITY IN 2010

2.1 Unlike in previous years, there were no complaints received by the Board concerning the non‑compliance by licensed premises with the requirements of the Disability Discrimination Act 1995 ("the DDA"), which have now been incorporated into the EqA. Likewise, the Board did not receive any complaints concerning its own procedures and practices. Whilst this is not by itself conclusive that there are no issues with disability equality in the alcohol licensing sector, it is perhaps indicative that progress is being made. The Board also noted with interest the provisions of the Criminal Justice and Licensing (Scotland) Act 2010 which will require applicants for new premises licences to include a statement in their application form as to (i) provision made for access to their premises by disabled persons, (ii) facilities provided on the premises for use by disabled persons and (iii) any other provision made on or in connection with the premises for disabled persons. It is anticipated that these requirements will come into force sometime in 2011 and will be explored more fully in the next annual report.

2.2 Application forms and notes of guidance for both applicants and potential objectors continue to be available on request in large print from the Licensing Office, 20 City Square, Dundee. The staff at the Licensing Office are subject to the Council's disability equality duties and receive training accordingly.

2.3 In October 2005, the Board gave its support to the establishment of a "Best Bar None" (BBN) Scheme in Dundee to recognise the efforts of licensed premises to meet their commitment to social responsibility and the safety of people using their premises. The Board encourages participation in the BBN scheme in its Statement of Licensing Policy. In 2008, a new category of BBN award was introduced for disability equality and awareness. The representatives of the 5 Digits Disability Issues Group are involved in the assessment of this category. The award winners in 2010 were The Kittiwake (pub category), Papa Jacques (bar category) and Fat Sam's (club category). The latter two premises were the winners in their categories for the second year in succession. A new general category was won by the Abertay Student Centre. In total, 19 premises were nominated for awards across the 4 categories.

3 CONCLUSION

3.1 The Board remains committed to delivering on the themes of the Disability Equality Duty:-

- promotion of equality of opportunity between disabled people and other people;

- elimination of unlawful discrimination;

- elimination of harassment of disabled people related to their disability;

- promotion of positive attitudes towards disabled people;

- encouragement of the participation of disabled people in public life; and

- taking steps to meet disabled people's needs, even if this requires more favourable treatment.

3.2 The Board will continue to act in furtherance of its duties as set out above by doing what it can within its sphere of responsibility and legal powers. On 1st September 2009, the provisions of the Licensing (Scotland) Act 2005 came fully into force. The ministerial guidance under Section 142 of the 2005 Act asks licensing boards to avoid the inclusion in their policies of "duplication with other regulatory regimes so far as possible". The Board does not accept, however, that this means that it cannot take into account issues of disability equality and it has already referred in its 2005 Act policy statement to the Disability Equality Scheme adopted in 2006 (Paragraph 1.1 above). The 2005 Act preserves the ability of a licensing board to consider the suitability of premises for the sale of alcohol in similar terms to Section 32 of the 1976 Act in respect of applications for new licences and the Board will make use of these continuing powers where issues concerning disability equality are raised in respect of licensed premises under the 2005 Act. This will be reinforced upon the implementation of the provisions of the Criminal Justice and Licensing (Scotland) Act 2010 summarised at Paragraph 2.1 above. When considering issues relating to existing licences, the Board is restricted to taking action only where there is a breach of a condition of a licence or the five licensing objectives are threatened. The Board is specifically prohibited by Section 27 of the 2005 Act from imposing conditions in relation to matters covered by other legislation. However, the Board will seek to relate any DDA issues to the licensing objectives where possible.

APPENDIX ll

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

B753/10

JUDGMENT OF SHERIFF PRINCIPAL

R A DUNLOP QC

in the cause

MITCHELLS & BUTLERS RETAIL LTD

Appellants

against

DUNDEE CITY LICENSING BOARD

Respondents

__________________

Act: Mr Skinner, Advocate instructed by R & J M Hill Brown & Co, Solicitor, Glasgow

Alt: Mr Woodcock, Solicitor, Dundee

DUNDEE, 6 December 2010. The Sheriff Principal, having resumed consideration of the cause, answers the first question in the stated case in the affirmative; therefore allows the appeal and reverses the decision of the Dundee City Licensing Board taken on 18 March 2010 to issue the appellants a written warning in terms of section 39(2) of the Licensing (Scotland) Act 2005 following a finding that the appellants had contravened paragraph 7 of schedule 3 of the said Act; certifies the appeal as suitable for the employment of junior counsel; finds the respondents liable to the appellants in the expenses of the appeal; allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report.

NOTE:

[1] This is an appeal by way of stated case against the decision of a Licensing Board to issue a written warning to the appellants in terms of section 39(2) of the Licensing (Scotland) Act 2005 (hereinafter referred to as "the 2005 Act"). The warning was issued following a review of the appellants' premises licence for the Nether Inn, Dundee when the Licensing Board found that there had been a breach of one of the mandatory conditions of the licence, namely that set out in paragraph 7 of schedule 3 to the 2005 Act.

[2] Paragraph 7 provides as follows:-

"Where the price at which any alcohol sold on the premises is varied -

(a) the variation (referred to in this paragraph as "the earlier price variation") may be brought into effect only at the beginning of a period of licensed hours, and

(b) no further variation of the price at which that or any other alcohol is sold on the premises may be brought into effect before the expiry of the period of 72 hours beginning with the coming into effect of the earlier price variation."

[3] The findings in fact in the stated case are as follows:-

1. The appellants are the holders of a premises licence for the Nether Inn, 134 Nethergate, Dundee DD1 4ED;

2. There is in operation at the premises a "discount card" scheme for students allowing them, upon obtaining a card, to enjoy a discount on alcoholic drinks at the premises;

3. The discount is not available to customers who do not possess a card;

4. There is during any 72 hour period a mixture of card holders and non card holders on the premises;

5. The discount card scheme is not limited by time and the price differential between card holders and non card holders is fixed so that the two categories of prices remain the same over any 72 hour period."

[4] The Licensing Board took the view that discounts offered to certain categories of customer but not others amounted to a breach of paragraph 7 of schedule 3. They took the view that where there are different amounts being charged for the same alcoholic drink this amounted to a price variation prohibited by paragraph 7. The first question in the stated case is whether the Licensing Board erred in reaching that conclusion. The answer to that question depends on the proper construction of paragraph 7.

[5] Counsel for the appellants appeared to concede that the wording of paragraph 7 was ambiguous but submitted that that ambiguity could be removed if one had regard to the purpose of the provision. He submitted that its purpose was the prevention of "binge drinking" and in particular so called "happy hours" during which the price of alcohol was reduced for a short period of time. The reason for the condition was that nobody should be encouraged by a short term reduction in pricing to drink large amounts of alcohol in a short period of time. He submitted that the ethos of the schedule 3 provisions was clearly focussed by the relevant minister who, when addressing the Scottish Parliament's Local Government and Transport Committee during consideration of the Licensing (Scotland) Bill, stated that the government considered "irresponsible promotions" to be those that actively encourage people to consume in a shorter period a larger amount of alcohol than they would otherwise consume" (Scottish Parliament - Local Government and Transport Committee Official Report, 20 September 2005). This sentiment was repeated in the Licensing (Scotland) Bill Policy Memorandum (paragraph 131) and it was stated in the Explanatory Notes relating to the Act ultimately passed that paragraph 7 precluded "happy hours".

[6] Against this background counsel submitted that paragraph 7 did not strike at differential pricing structures. He questioned the relevance of the 72 hour provision if the approach of the Licensing Board were well founded and pointed out that in that event there would require to be a uniform price for each product throughout all parts of the licensed premises, thus sweeping away the traditional distinction between for example a lounge bar and a public bar. He submitted that there was no hint of a suggestion that that was the intended object of the provision in question within either the Nicholson report, which was the precursor to the 2005 Act, or in any of the policy papers pertaining to the passage of the bill through the Scottish Parliament.

[7] In responding to these submissions the solicitor for the Licensing Board submitted that, while removing the distinction between different parts of licensed premises may not have been the intention of paragraph 7, that was the inevitable consequence of the wording of that provision. He submitted that the purpose of paragraph 7 was to make it less commercially attractive for licensees to offer discounted prices. The appellants' scheme was in reality a promotion, the maintenance of which was subsidised by those paying the full price of the alcoholic product. This cut across the policy objective of paragraph 7 which put the focus firmly on the price of alcohol. Differential pricing involved by definition a variation in the price of a particular alcoholic product from one moment to the next.

[8] In my opinion the submissions for the appellants are to be preferred. The starting point in the application of paragraph 7 is "the price at which any alcohol is sold." In itself that phrase says nothing about whether individual alcoholic products must be sold at a uniform price and the lounge bar/public bar distinction referred to by counsel is an example of circumstances in which one might readily expect such a differential pricing structure to exist within the same licensed premises. Nor in my opinion is there anything in the wider provisions of paragraph 7 which precludes differential pricing of individual products. Rather the focus of attention is the variation of an existing price within a prescribed period of time. Thus at the beginning of a period of licensed hours the question is what are the prices prevailing or set at that time and it is nothing to the point that there may be different prices for the same product. But once the prices have been set, even if different prices for the same product, it is those prices which may not be varied within a period of 72 hours thereafter. In my view that construction reflects the natural meaning of the words used in paragraph 7 but in any event is consistent with what I consider to be the underlying purpose of this provision as reflected in the various parliamentary comments and explanatory notes to which counsel referred, namely the avoidance of circumstances in which people are encouraged to consume in a shorter period of time a larger amount of alcohol than they would otherwise consume. In other words it is a measure aimed at discouraging "binge drinking".

[9] As finding in fact 5 makes clear, the price differential between card holders and non card holders is fixed so that the two categories of prices remain the same over any 72 hour period. It follows that in my opinion there has been no unlawful variation of prices in breach of the provisions of paragraph 7 of schedule 3 and that accordingly the first question in the stated case ought to be answered in the affirmative. In these circumstances question 2 does not arise.

[10] Parties were agreed that in these circumstances the proper course was simply to allow the appeal and reverse the decision of the Licensing Board. Parties were also agreed that the expenses of the appeal should follow success. Counsel for the appellants moved for certification of the appeal as suitable for the employment of junior counsel. The respondents took up no position in regard to that motion. In my view the novelty and importance of the point warrants the granting of that motion.