|Consideration was given to a report on the Live Music Act 2012 which amended the Licensing Act 2003. The changes had been introduced to encourage more performances of live music, deregulate in part the performance of live music, remove regulation about the provision of entertainment facilities and extend the exemption which related to music accompanying morris dancing or dancing of a similar nature. |
The Licensing Act 2003 (the 2003 Act) made the following activities licensable activities':-
The sale by retail of alcohol;
The supply of alcohol by or on behalf of a club to, or to the order of, a member of the club;
The provision of regulated entertainment; and
The provision of late night refreshment
The 2003 Act set out what amounted to the provision of regulated entertainment by reference to a list of descriptions of entertainment and a definition of entertainment facilities. The entertainment was, or entertainment facilities were licensable to the extent that they were provided for members of the public, members of a club, or (in any other case) for payment and with a view to profit. This included a performance of live music and a performance of dance.
Entertainment facilities were defined as meaning facilities for enabling persons to take part in making music or dancing (or entertainment of a similar description) for the purpose of being entertained.
The 2003 Act also contained various exemptions where, if the requirements as set out were satisfied, entertainment and the provision of entertainment facilities were not to be regarded as the provision of regulated entertainment.
Section 177 of the 2003 Act contained restrictions on the application of conditions in small premises providing music and dancing. It applied in two different situations:-
Firstly, where a licence, or club premises certificate, authorises the sale of alcohol for consumption on the premises and the provision of live music and dancing, and where the premises are used primarily for the consumption of alcohol on the premises, and where the premises have an occupancy limit of up to 200, only conditions relating to the provision of the live music and dancing imposed on the licence by the licensing authority as being necessary for public safety or the prevention of crime and disorder will have effect (in addition to those contained in the operating schedule). Any conditions relating to the provision of the live music and dancing imposed by the licensing authority as being necessary for the prevention of public nuisance or the protection of children from harm, however will not apply unless they are altered or added as a result of a review of the licence.
Secondly, where a licence, or club premises certificate, authorises the provision of music entertainment and the premises have a permitted occupancy of not more than 200 persons. If the premises are being used between 8am and midnight for the performance of unamplified live music or the provision of facilities for enabling persons to take part in such a performance, and are not being used for the provision of any other description of regulated entertainment, then all conditions imposed by the licensing authority relating to music entertainment do not have effect unless they are altered or added following a review of the licence.
The Live Music Act 2012 (the Act), which comes into force on 1st October 2012, amends section 177, so that the section would only apply to dancing.
The Act amended the 2003 Act further by partially deregulating the performance of live music and removing regulation about the provision of entertainment facilities. It:-
removes the licensing requirement for unamplified live music taking place between 8am and 11pm in all venues, subject to the right of a licensing authority to impose conditions about live music following a review of a premise licence or club premises certificate relating to premises authorised to supply alcohol for consumption on the premises;
removes the licensing requirement for amplified live music taking place between 8am and 11pm before audiences of no more than 200 persons on premises authorised to supply alcohol for consumption on the premises, subject to the right of a licensing authority to impose conditions about live music following a review of a premise licence or club premises certificate;
removes the licensing requirement for amplified live music taking place between 8am and 11pm before audiences of no more than 200 persons in workplaces not otherwise licensed under the 2003 Act (or licensed only for the provision of late night refreshment).
removes the licensing requirement for the provision of entertainment facilities; and
widens the licensing exemption for live music integral to a performance of morris dancing or dancing of a similar type, so that the exemption applies to live or recorded music instead of unamplified live music.
The effect of these changes meant that any existing licence conditions on on-licensed premises which related to live music remained in place but were suspended between the hours of 08.00 and 23.00 on the same day, e.g. keeping doors and windows closed during the performance of live music or using a noise limiter to control the volume of amplified live music if the audience was below 200 persons.
However, even where the 2003 Act (as amended) had deregulated aspects of the performance of live music, it remained possible to apply for a review of a premises licence or club premises certificate. On a review the 2003 Act permitted a licensing authority to lift the suspension and give renewed effect to an existing condition relating to live music. Similarly a licensing authority may add a condition relating to live music as if live music were regulated entertainment, and as if that licence or certificate licensed the live music.
Members were reminded that an application for a review in relation to premises could be made by a licensing authority, any responsible authority or any other person subject to it being relevant to one or more of the licensing objectives.
More general licence conditions (e.g. those relating to overall management of potential noise nuisance) that were not specifically related to the provision of live entertainment (e.g. signage requesting customers to leave quietly) would remain in place.
Members were also advised that the Home Office Guidance Issued under Section 182 of the Licensing Act 2003 is to be amended to reflect these changes.
Members were then given the opportunity to ask questions and make comments on the Act. Overall Members were dissatisfied with the Act and felt that the Act would be more difficult to manage and it would give the public less protection from noise nuisance.
|Consideration was given to a report on the responses received from the consultations carried out on the draft review of the Statement of Licensing Principles that the Council, as the Licensing Authority, would apply in exercising its functions under The Gambling Act 2005.|
At the meeting held on Tuesday 24th July 2012 Members gave consideration to a report, which detailed the draft review of the Statement of Licensing Principles which the Council, as the Licensing Authority, would apply in exercising its functions under The Gambling Act 2005.
At that time Members were advised that the draft review would be subject to full consultation with interested parties prior to being approved by Council later in the year. This consultation had been carried out and a list of parties consulted was attached to the report. In addition a public notice was placed in a local newspaper inviting comments and the consultation document was published on the Council's website. Only one letter with comments had been received during this period from the British Beer and Pub Association and a copy was attached to the report. Members were advised that this was the same response that was received in 2009.
Officers believed that the comments in the letter in respect of the grant of additional permits in alcohol licensed premises were adequately addressed in the Statement of Licensing Principles at paragraphs 24.2 - 24.6 and would not recommend any further amendments which could fetter the Council's discretion in being able to consider each application on its merits.
A copy of the draft revised Statement of Licensing Principles was attached to the report with deletions shown as track changes and new wording underlined.
Members felt that the draft revised Statement of Licensing Principles which the Council, as the Licensing Authority, would apply in exercising its functions under The Gambling Act 2005 should be approved without any further amendment.
|Consideration was given to a report on a combined hackney carriage and private hire driver who had been issued with a Section 59 warning by Cleveland Police and then subsequently obstructed officers in their duties.|
Mr K I became a licensed Combined Driver with the Authority on 3rd November 2011 and his licence was due to expire on 31st October 2012.
On the 18th June 2012, at approximately 10:30am it was alleged the driver of NY06 KUB, HCV 313 was involved in an incident on the A66 South Bank. It was alleged the driver dangerously undertook a vehicle and caused a second to break. The driver of HCV 313 then subjected the road user to obscene gestures, prompting him to contact Police to report the incident. A map detailing where the incident took place was attached to the report.
The proprietor of HCV 313 was Mr J I but was driven by Mr K I his son. On the 21st June 2012 PC 622 Brisley attended Mr J I's home address and spoke to both Mr J I and Mr K I. Both denied the incident, and said that the vehicle was in Riverside Tyres, Oxbridge at the time and date of the incident, having a window fixed. When it was confirmed that Mr K I drives HCV 313 PC Brisley issued Mr K I with a Section 59 Notice. Mr K I refused to sign the warning and Mr J I subsequently made a formal complaint about PC Brisley. A copy of the Section 59 notice was attached to the report.
On the 29th June 2012, PC 622 Brisley contacted the licensing department with information that Mr K I was issued with a section 59 warning by police. PC Brisley confirmed both the driver and proprietor of the vehicle were denying the incident and passed on the details of the complainant involved with the incident.
Mr K I attended for interview with his father Mr J I on 9th July 2012. A summary of the transcript of the interview was attached to the report.
In interview both Mr K I and Mr J I confirmed Mr K I was the regular driver of HCV 313, and was driving on the 18th June 2012. Mr K I denied the allegation, and insisted he took a flag down from Stockton High street to Ingleby Barwick on 18th June 2012 at approximately 09:50, he then took the vehicle to Riverside Tyres in Oxbridge to have a window repaired and was adamant that he took the vehicle there himself at approximately 10:30am and the vehicle was there until approximately 15:30pm the same day.
On the 13th July 2012 a telephone enquiry was made with Mr K the manager of Riverside Tyres, who confirmed that HCV 313 was brought in to the garage on the day in question, Mr K checked a log book and stated the vehicle was in the garage from 10:15am until 15:00pm. He did not make a note of the vehicle number but remembered Mr J I the one with the beard" not his son, bringing the vehicle down personally. Mr K flatly denied a member of staff from the garage could have taken the vehicle and committed this offence. The full conversation with Mr K was detailed in Licensing Officer Miss Maloney's statement and was attached to the report.
On the 19th July 2012, a witness statement was received from PC Brisley, which detailed his meeting with Mr K and Mr J I on the 21st June 2012. The statement also goes on to confirm NY06 KUB HCV 313 was flagged up by ANPR system in the location at the date and time of incident. The statement also detailed a visit by PC Brisley to Riverside Tyres where he was told the same story by Mr K; Mr J I was also at garage at time of this visit. A copy of PC Brisley's witness statement was attached to the report.
On the 26th July 2012, a statement was taken from the member of the public involved in the incident on 18th June 2012. A copy of the statement was attached to the report.
On the 8th August 2012 Mr K I was interviewed a second time without his father Mr J I. During this interview Mr K I admitted to being in the area at the time and date of the incident. He said he was seeing a girl he shouldn't at Southbank Asda and then he went to Redcar for some window glass. When asked why he lied to Police Officers and Licensing Officers, Mr K I said he was scared of his father. Mr K I would still not admit doing anything wrong or to driving in a manner to justify the Section 59 warning, and went on to justify his manner of driving by saying the road was 70mph, and he was not speeding. A summary of the transcript of the interview was attached to the report.
Checks on the A66 showed the area where the alleged incident took place had a 50mph speed limit. The road did change to national speed limit for a short section just before the roundabout but the incident had already taken place. A map detailing where the incident took place was attached to the report.
Mr K I had no live points on his DVLA licence and he had received no complaints from members of the public or had cause for Licensing Officers to speak to him prior to the incident.
For Member's information offences under section 73 of the Local Government (Miscellaneous Provisions) Act 1976 related to hackney carriage and private hire vehicle proprietors, drivers and operators who:-
(1)(a) willfully obstructs an authorised Officer or constable acting in pursuance of this Part of this Act or the Act of 1847; or
(1)(b) without reasonable excuse fails to comply with any requirement properly made to him by such Officer or constable under this Part of this Act; or
(1)c without reasonable cause fails to give such an Officer or constable so acting any other assistance or information which he may reasonably require of such person for the purpose of the performance of his functions under this Part of this Act or the Act of 1847.
Members were reminded that under the provisions of Section 61 (1)(a) of the Local Government (Miscellaneous Provisions) Act 1976 the Council may suspend or revoke or refuse to renew the licence of a hackney carriage and/or private hire driver on any of the following grounds:-
(a) that he has since the grant of the Licence:-
(i) been convicted of an offence involving dishonesty, indecency or Violence; or
(ii) been convicted of an offence under or fails to comply the provisions of the
Act of 1847 or of this part of this Act; or
(b) any other reasonable cause.
and Section 61(2)
(A) Subject to subsection (2B) of this section, a suspension or revocation of the licence of a driver under this section takes effect at the end of the period of 21 days beginning with the day on which notice is given to the driver under subsection (2)(a) of this section,
(B) If it appears in the interests of public safety require the suspension or revocation of the licence to have immediate effect, and the notice given to the driver under subsection (2) (a) of this section includes a statement that that is so and an explanation why, the suspension or revocation takes effect when the notice is given to the driver.
Mr K I was in attendance at the meeting and was given the opportunity to ask any questions of the Licensing Officers report. Mr K I also gave oral evidence and Members were given the opportunity to ask Mr K I questions.
Members considered all of the evidence including the report, appendices and oral evidence that had been given. Members considered whether the allegations of driver misconduct occurred and secondly if, on the balance of probabilities they did occur, what action should be taken against the driver.
Members noted that this issue initially commenced with a complaint been received from a member of the public about Mr K I's manner of driving and the fact that he was allegedly aggressive and used rude / offensive hand gestures toward the complainant. Members noted that they had to decide on the balance of probabilities which version of events was the truth. Members were extremely concerned over the amount of lies Mr K I had told in relation to this incident and on Mr K I's own admission he had lied to the Police, Licensing Officers, his father and his wife. Members therefore were of the view that on the balance of probabilities the version of events detailed in the complainants statement was true and correct and that Mr K I had driven in the manner alleged and used offensive hand gestures. This behaviour was not fit and proper for a licensed driver and clearly called into question Mr K I's fitness to hold a licence. Members were particularly concerned that Mr K I had been licensed less than a year and had already appeared before them for this disciplinary matter.
Members noted that Mr K I's explanation for the lies he had told was that he had been in a relationship with a girl and he did not want his father to find out that he had met her on 18th June 2012. This did not excuse the apparent ease with which Mr K I had lied. Mr K I had set in motion a sequence of events that could have had very serious consequences. Mr K I's father had lodged a complaint against the Police Officer. It appeared that this complaint was based on the fact that Mr K I's father believed the vehicle was at Riverside Tyres when the incident took place. Mr K I accepted that this was not the case and Mr K I was driving the vehicle in the location where the alleged incident occurred. Mr K I was strongly advised to speak to his father in relation to the incident and that both Mr K I and his father should give strong consideration to whether it is appropriate to proceed with a complaint against the Police Officer. As the Police Officer had been a witness in relation to the matter he would be informed of the findings of the Committee. The investigation of the complaint by both the Police and Licensing officers had taken a great deal of time and expense. Mr K I should think himself fortunate that the Police had not considered prosecuting him for wasting Police time.
Members gave strong consideration to revoking Mr K I's licence. Members did note that Mr K I had acted out of desperation when he had first lied about the incident to his father. However Members were concerned at Mr K I's manner of driving and found that public safety was a valid consideration and therefore they agreed to suspend Mr K I's licence with immediate effect until he had completed the driver improvement course or speed awareness course. Attendance at the course was at Mr K I's own expense.
|Mr P M was in attendance at the meeting and requested that the item be deferred as he wanted to be legally represented and his solicitor could not be in attendance at the this meeting.|
Members agreed with the request and outlined that the item would be heard at the next meeting to be held on 13th November 2012.