Docstoc

NORTH WEST LEICESTERSHIRE DISTRICT COUNCIL

Document Sample
NORTH WEST LEICESTERSHIRE DISTRICT COUNCIL Powered By Docstoc
					NORTH WEST LEICESTERSHIRE DISTRICT COUNCIL

COUNCIL – 29 MARCH 2011

                          READOPTION OF SCHEDULE 3 OF THE LOCAL
Title of report           GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1982
                          AS AMENDED BY THE POLICING AND CRIME ACT 2009

                          Councillor Alison Smith
                          01530 835668
                          alison.smith@nwleicestershire.gov.uk

                          Head of Community Services
                          01530 454520
Contacts
                          John.richardson@nwleicestershire.gov.uk

                          Environmental Health Team Manager
                          01530 454610
                          lee.mansfield@nwleicestershire.gov.uk

                          To agree the readoption of the above legislation and associated
Purpose of report
                          matters

                          Strong and Safer Communities
Strategic aims
                          Prosperous Communities

Implications:

                          All resources employed in the implementation of the legislation
Financial/Staff
                          must be recovered from licensing fees and charges

Link to relevant CAT      Safer CAT

                          If the provisions are not adopted by the Council on April 6 2011 a
Risk Management
                          consultation process must be undertaken with local people.

Equalities Impact
                          Equality Impact Assessment to be undertaken during 2011/2012.
Assessment

                          In determining applications, the principles of the Human Rights Act
                          1998 must be taken into consideration. The Act acknowledges that
                          local authorities are entitled, amongst other things, to act where
Human Rights              this is in the ‘general interest’. Should it be decided to refuse or to
                          grant an application, or to attach conditions, the rights of appeal
                          that exist through the Magistrates’ Court will ensure that the
                          principles of the Human Rights Act are adhered to.
Transformational
                           Not applicable.
Government

Comments of Head of Paid
                           Report is satisfactory.
Service

Comments of Section 151
                           Report is satisfactory.
Officer

Comments of Monitoring
                           Report is satisfactory.
Officer

Consultees                 Leicestershire Constabulary.

                           Policing and Crime Act 2009.
                           Local Government (Miscellaneous Provisions) Act 1982.
Background papers
                           Licensing Act 2003.
                           Home Office Guidance.

                           TO ADOPT THE FOLLOWING RECOMMENDATIONS;

                           A)   TO RE-ADOPT THE LEGISLATION UNDER SCHEDULE 3
                                OF THE LOCAL GOVERNMENT (MISCELLANEOUS
                                PROVISIONS) ACT 1982;

                           B)   TO SET THE DATE FOR THE ‘FIRST APPOINTED DAY’
                                AS BEING 1ST MAY 2011;

                           C)   TO APPROVE THE DRAFT SEX ESTABLISHMENT
                                LICENSING POLICY;

                           D)   TO DELEGATE TO THE LICENSING COMMITTEE
                                DETERMINATION OF SEXUAL ENTERTAINMENT VENUE
Recommendations                 LICENCE APPLICATIONS;

                           E)   TO DELEGATE THE AUTHORITY TO DETERMINE AN
                                APPLICATION TO RENEW AND TRANSFER A LICENCE
                                (WHERE NO OBJECTIONS HAVE BEEN RECEIVED) TO
                                THE DIRECTOR OF SERVICES;

                           F)   TO SET THE FEES FOR 2011/2012;

                           G)   TO DELEGATE TO THE DIRECTOR OF SERVICES
                                AUTHORITY TO ADMINISTER SEXUAL ENTERTAINMENT
                                VENUE LICENCE APPLICATIONS, MAKE MINOR
                                CHANGES TO THE POLICY FOR SEXUAL
                                ENTERTAINMENT VENUES AND TO SET FEES FOR THE
                                GRANT, RENEWAL AND VARIATION OF LICENCES;
                                H)    TO DELEGATE TO THE MONITORING OFFICER
                                      AUTHORITY TO MAKE CONSEQUENTIAL CHANGES TO
                                      THE COUNCIL CONSTITUTION.


1.0   Background

1.1   To enable a Local Authority to license sex establishments in its area it has to first adopt
      Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982. In this
      Schedule sex establishment means a sex cinema or a sex shop. This Council adopted
      Schedule 3 at its meeting on Tuesday 9th November 1982 with the adoption coming into
      force on 1st January 1983 (see Appendix 1).

1.2   Other ‘adult entertainment’ was controlled through Public Entertainment licences until the
      introduction of premises licences and the Licensing Objectives by the Licensing Act 2003.

1.3   In turn section 27 of the Policing and Crime Act 2009 has now taken away control of sex
      establishments from the Licensing Act 2003 and at the same time amended Schedule 3 of
      the Local Government (Miscellaneous Provisions) Act 1982. The amendment to the 1982
      act by the 2009 act introduces the concept of a ‘sexual entertainment venue’.

1.4   A ‘sexual entertainment venue’ is defined as any premises at which relevant entertainment
      is provided before a live audience for the financial gain of the organiser or the entertainer.
      Other relevant definitions can be found at Appendix 2.

1.5   Currently only one premises within the District has a condition on its Licensing Act 2003
      Premises Licence which could mean it falls within the definition of a sexual entertainment
      venue. It has been closed for some time and is not expected to open in the short term.

1.6   Following amendments to the act officers consider it prudent to re-adopt the provisions of
      Schedule 3 as it will give the Authority power to control and license those premises
      providing relevant entertainment.

1.7   It is not expected that demand for Sexual Entertainment Venue licences will be high
      especially as premises are allowed to provide relevant entertainment on no more than 11
      occasions in any 12 month period without the need to be licensed.

2.0   Adoption of Legislation

2.1   Once Schedule 3 of the 1982 act has been adopted, the Council has the option to either
      adopt, or not, the amendments made to the 1982 act by section 27 of the 2009 act.

2.2   If it has not resolved to adopt the legislation within a year of it coming into force, i.e. before
      6 April 2011, the Authority must consult local people on whether the Authority should make
      such a resolution.

2.3   If the decision is made to adopt the legislation the Council must set the ‘first appointed
      day’ which will be a date in excess of 28 days from the date of resolution. Officers must
      then place two notices at least 28 days before the ‘first appointed day’ in local newspapers
      advertising and setting out the effect of the resolution. It is proposed that the ‘first
      appointed day’ will be 1st May 2011.
2.4   Applications for a licence made in the 12 months following the ‘first appointed day’ will be
      dealt with in accordance with legislation and Home Office Guidance.

3.0   Licensing Policy

3.1   A licensing policy has been drafted and can be found at Appendix 3. It details the grounds
      for refusing to grant, transfer and renew a licence application. Although there is a
      recommendation to have no sexual establishment venues in the district it is still
      appropriate to have a policy as applications cannot be refused.

4.0   Decision Making

4.1   As any application for a Sexual Establishment Venue licence is likely to be an emotive
      issue it is recommended the Council delegate the power to determine the following
      applications to the Licensing Committee:

      Grant a licence
      Vary a licence
      Renew a licence where relevant objections have been received
      Transfer of a licence where relevant objections have been made

4.2   It is recommended Council delegate the following powers to the Director of Services:

      Renew a licence where relevant objections have not been received
      Transfer of a licence where relevant objections have not been received
      Revoke a licence

4.3   Other matters relating to the administration of the Sexual Establishment Venues including
      the review of fees should be delegated to the Director of Services.

4.4   Changes to the Council Constitution will be necessary and it is recommended that the
      Council authorises the Monitoring Officer to make appropriate changes.

5.0   Transitional Arrangements

5.1   Legislation is in place to deal with the transitional arrangements spanning the 1st, 2nd and
      3rd appointed days. The 2nd appointed day will be the six months following the 1st
      appointed day. The 3rd appointed day will be 12 months after the 1st appointed day.

5.2   The District has only one existing operator who will have, prior to the 1st appointed day, a
      2003 Act licence and can lawfully use premises as a sexual entertainment venue under
      that licence (see paragraph 1.5 above). This operator will be allowed to continue providing
      relevant entertainment until the 3rd appointed day or the determination of any application
      they have submitted before that time, whichever is later.

5.3   Applicants will be able to submit their application for a sexual entertainment venue from
      the 1st appointed day onwards, however, no application will be determined before the 2nd
      appointed day. If granted those licences will come into effect immediately.
6.0   Fees

6.1   Schedule 3 to the 1982 Act states that an application for the grant, renewal, variations or
      transfer of a licence shall pay a reasonable fee. It is recommended the following fees be
      introduced which are consistent with the current fees for Sex establishments licences:

       Application                          Fee
       Grant / Variation                    £2927

       Renewal                              £1882

       Transfer                             £1255


6.2   The proposed fee has been benchmarked against other local authorities that have set their
      fees. A comparison is provided by the table below:

       Local authority                      Fee
       Hinckley & Bosworth BC               £3000
       Melton BC                            £1600
       South Derbyshire                     £2100


7.0   Amendment to Constitution

7.1   Should members recommend that the provisions of Schedule 3 of the 1982 act are re-
      adopted consequential amendments will be required to the constitution. A draft of those
      amendments are detailed below.

7.2   The current constitution would be amended on page 57 by adding the following to section
      4.1 –‘ FUNCTION – To consider matters concerning the discharge by the Council of its
      licensing functions under Schedule 3 of the Local Government (Miscellaneous Provisions)
      Act 1982 as amended by the Policing and Crime Act 2009. MATTERS RESERVED FOR A
      DECISION – Application for a Sexual Establishments Venue licence’.

8.0   Licensing Committee

8.1   On 1st March 2011 the Licensing Committee debated this report and unanimously voted
      that Council adopts the above recommendations.
                                                                        APPENDIX 2


           Definitions included in the Policing & Crime Act 2009


“Sexual entertainment venue” means any premises at which relevant entertainment
is provided before a live audience for the financial gain of the organiser or the
entertainer.

“Relevant entertainment” means—
(a) any live performance; or
(b) any live display of nudity;
    which is of such a nature that, ignoring financial gain, it must reasonably be
    assumed to be provided solely or principally for the purpose of sexually
    stimulating any member of the audience (whether by verbal or other means).

The following are not sexual entertainment venues for the purposes of this
Schedule—
(a) sex cinemas and sex shops;
(b) premises at which the provision of relevant entertainment
           (i) there have not been more than eleven occasions on which relevant
               entertainment has been so provided which fall (wholly or partly) within
               the period of 12 months ending with that time;
           (ii) no such occasion has lasted for more than 24 hours.

An “audience” includes an audience of one;

A “display of nudity” means—
(a) in the case of a woman, exposure of her nipples, pubic area, genitals or anus;
and
(b) in the case of a man, exposure of his pubic area, genitals or anus.

“The organiser”, in relation to the provision of relevant entertainment at premises,
means any person who is responsible for the organisation or management of—
(a) the relevant entertainment; or
(b) the premises.

A “premises” includes any vessel, vehicle or stall but does not include any private
dwelling to which the public is not admitted.
                                                                                    APPENDIX 3

                     NORTH WEST LEICESTERSHIRE DISTRICT COUNCIL
 POLICY FOR GRANT, RENEWAL, VARIATION OR TRANSFER OF LICENCES FOR SEX
                       ENTERTAINMENT VENUES (SEVs)


1.0   Preface
1.1   North West Leicestershire District Council has adopted Schedule 3 to the Local
      Government (Miscellaneous Provisions Act 1982 (as amended by section 27 of the
      Policing and Crime Act 2009) so that it can licence sex shops, sex cinemas and sexual
      entertainment venues in the District.
1.2   The role of the Council in its position as Licensing Authority is to administer the
      licensing regime in accordance with the law and not in accordance with any moral
      standing. The Council recognises that Parliament has made it lawful to operate a sex
      entertainment venue.
1.3   The Local Government (Miscellaneous Provisions) Act 1982 and the Policing and
      Crime Act 2009 can be viewed in full at www.opsi.gov.uk
2.0   Introduction
2.1   Licences for sexual entertainment venues (SEV) are required for ‘any premises at
      which relevant entertainment is provided before a live audience for the financial gain of
      the organiser or the entertainer.
2.2   Schedule 3 to the 1982 Act (as amended) defines relevant entertainment as, ‘any live
      performance or any live display of nudity which is of such a nature that, ignoring
      financial gain, it must reasonably be assumed to be provided solely or principally for
      the purpose of sexually stimulating any member of an audience’. An audience can
      consist of just one person.
2.3   Relevant entertainment will generally apply to the following types of activity:
      •      Lap dancing
      •      Pole dancing
      •      Table dancing
      •      Strip shows
      •      Peep shows
      •      Live sex shows
      This list is not exhaustive and, taking into account that the exact nature of these
      descriptions may vary, each case will have to be dealt with on its own merits.

2.4   This policy will apply to all licence applications for SEVs and will only be overridden in
      exceptional circumstances.

3.0   Specific grounds for refusing a licence
3.1   Paragraph 12 of Schedule 3 to the 1982 Act provides specific grounds for refusing a
      licence some of these reasons include:
(a)   the applicant is unsuitable to hold the licence by reason of having been convicted of an
      offence or for any other reason;
(b)   at the time the application is determined, the number of sex establishments in the
      relevant locality is equal to or exceeds the number which the authority considers
      appropriate for that locality;
(c)   The grant or renewal of the licence would be inappropriate, having regard to the
      character of the relevant locality, or the use to which any premises in the vicinity are
      put, or to the layout, character or condition of the premises.
4.0   Renewals
4.1   Licences will normally be renewed unless circumstances have changed. The following
      matters would be taken into account:-
(a)   levels of recorded crime and disorder linked to the licensed premises;
(b)   evidence of a demonstrable impact on neighbours’ safety or amenity;
(c)   effectiveness of appropriate measures, such as conditions, to mitigate adverse
      impacts.

5.0   Appropriate Numbers & Locality

5.1   Except in exceptional circumstances, a new licence for a SEV will not be granted in the
      relevant locality if at the time the application is made the number of licences issued is
      equal to or exceeds the number which the authority considers appropriate for the
      locality. The appropriate number for each locality is as follows:


          Locality                              Appropriate number


          Ashby Town Centre                     Nil


          Coalville Town Centre                 Nil


          All other areas within the District   Nil


5.2   Notwithstanding the fact the number of sexual entertainment venues has been set to
      zero, the Licensing Authority will still consider applications for a locality. However, the
      applicant will have to demonstrate to the Licensing Authority why they should depart
      from the policy.

5.3   Licences for SEVs will not be granted within family residential areas, family leisure areas
      or retail areas where commercial occupiers argue plausibly that SEVs would lower the
      retail attraction of the area. The following areas will also not be considered appropriate
      areas:

      •         Main shopping streets
      •         Areas with strong faith communities
      •         Educational areas
      •         Areas earmarked for regeneration
      •         Areas where tourism members and officers advise there should be no SEVs
      •      Areas with history of social difficulties
      •      Areas with high levels of recorded crime.

5.4   Licences for SEVs will not be granted within sightlines of:

      •      Schools, youth facilities and colleges
      •      Public buildings and community facilities

6.0   Policy and tacit authorisation
6.1   All applications must be properly determined, tacit authorisations further to EU
      Services Directive will not apply.
7.0   Standard Conditions
7.1   All licences granted shall be subject to the Council’s prescribed standard conditions
      listed at paragraph 9.0
7.2   Where it is reasonable to do so, the Licensing Committee may attach additional,
      proportionate conditions to a licence. Where possible these additional conditions will be
      discussed in advance with operators by licensing officers.
8.0   Length of Licence
8.1   Unless there are exceptional circumstances a licence will be granted for a maximum of
      12 months
9.0   Prescribed standard conditions made by regulations for SEVs

      1.     No persons under 18 will be admitted to the premises. The premises will operate
             a ‘Challenge 25’ scheme, whereby anyone who appears to be aged 25 or
             younger is asked for photographic ID to prove their age. The only ID that will be
             accepted are passports, a driving licence with a photograph or Portman Group
             proof of age cards bearing the ‘PASS’ mark hologram. The above list of
             acceptable proof of age items may be extended to other forms of ID on the future
             with advance written agreement of the Police without the need to review the
             actual licence. The Challenge 25 rule and the stipulated forms of acceptable age
             identification will be clearly stated both on the premises website and on all
             membership applications, booking forms, customer contractual documents and
             promotional literature etc. In addition the licensee will provide a photographic
             identification system for all entrants to the premises. Recordings to be provided
             to the police at the request.
      2.     No under 18’s events will be hosted anywhere on the premises at any time.
      3.     Whilst striptease entertainment is taking place, no customer under 18 shall be on
             the premises and clear notices shall be displayed at the entrance to the premises
             in a prominent position so that it can easily be read by persons entering the
             premises in the following terms:

      NO PERSONS UNDER 18 TO BE ADMITTED
      ENTERTAINMENT WITHIN THESE PREMISES INVOLVES
      A FORM OF NUDITY
      IF YOU ARE LIKELY TO BE OFFENDED, PLEASE DO NOT ENTER

      4.     No intoxicating liquor shall be supplied for consumption off the premises
       5.    The only form of relevant entertainment which is approved and may be provided
             at the premises is striptease entertainment in the form of tableside and pole
             dancing by club dancers only.
       6.    The approved striptease entertainment shall be given only by the performers and
             entertainers and no audience and no audience participation shall be permitted
       7.    There shall be no physical contact between the customer and the dancer, with
             the exception of shaking hands with a customer and/or leading a customer by the
             hand from a seated area to a booth for a private dance. In addition and with the
             exception of the above, there shall be no deliberate physical contact between the
             customer and the dancer, either immediately before, during or after a dance.
       8.    Dancers shall only perform on the stage area or at a tableside to seated
             customers. All booths will have adequate lighting to ensure the safety of the
             dancer and to ensure that both the member / guest / audience and the performer
             are adhering to the Club rules at all times. A SIA licensed door supervisor will
             have a full and unrestricted view of any dancer performing in a booth at all times.
       9.    There shall be no physical contact between dancers whilst performing
       10.   Dancers may never give out personal information, including telephone numbers,
             email addresses or other contact details to audience members. Dancers may
             never accept any telephone number, addresses, business card or any other
             information from any customer.
       11.   The private booths will be designed in such a way that there can be no curtain or
             other visual barrier that can be pulled across the entrance, this concealing
             activities inside the booth area. The booths will be designed in such a way that
             the door supervisors / security staff can see into the booths to ensure the safety
             of the dancers performing inside and to ensure that the club rules are being
             strictly adhered to at all times.
       12.   All dancers / performers will be aged over 18 years of age and legally entitled to
             work in the UK before they perform at the Club. Copies of all dancers files will be
             made available to the Police Licensing for inspection upon request.
       13.   The licence holder shall ensure no dancers are trafficked, exploited or controlled
             for another’s gain.
       14.   Where possible all dancers will be escorted from the premises at the end of each
             evening to their transport (e.g. taxis) to ensure their personal safety and security
       15.   Members and their guests may not at any time take photographs, film, video or
             mobile phone photographs or footage of performers.
       16.   The Licensee will ensure that there is no display outside the premises of
             photographs or other images that indicate or suggest that striptease or similar
             entertainment takes place on the premises.
       17.   Any promotional website for the premises must comply with
             A.S.A regulations and will not display photographs or other images of topless or
             nude performers, or show photographs or other images that may reasonably be
             construed as offensive. The website will include a clear requirement stating the
             challenge 25 proof of age.
       18.   Promotional literature. Any promotional literature circulated outside of the
             premises will not display photographs or other images of topless or nude
             performers, or show photographs or other images or words that may reasonably
             be construed as offensive. All promotional literature will include clear statements
             as to the requirements for challenge 25 proof of age.

10.0   Hearing Procedures
10.1   New applications will be determined by Licensing Committee. The usual hearing
       procedures for Licensing Committee will apply, accommodating provisions for
       objectors set out in paragraphs 9 of Schedule 3 to Local Government (Miscellaneous
       Provisions) Act 1982 concerning the objectors’ names and addresses. Notice of
       hearing should be sent to all parties prior to hearing.
10.2   Applicant and objectors will have an opportunity to be heard.
10.3   A notice of hearing will be sent to all parties.
10.4   Renewal applications will normally be granted unless circumstances have changed.
       The Director of Services has delegated authority to determine renewal applications
       where relevant objections have not been received.
10.5   Where there is any possibility that an application may be refused, the applicant must
       be given the opportunity to be heard by the Licensing Committee.
10.6   Any reasons for refusal will be notified orally as soon as possible and in a written
       statement within 7 days.