Licensing

Martin Smith v Secretary of State for Transport & Richard McFarlane, Deputy Traffic Commissioner for the Scottish Traffic Area, Sheriff Principal B A Lockhart, Dumfries Sheriff Court, 29 June 2011

Wed, 21 Sep 2011 22:29:47 GMT

This was an appeal against a Sheriff’s decision in a summary application regarding LGV driver licensing. The original application was lodged by Martin Smith, appealing against the Deputy Traffic Commissioner’s previous decision to revoke his LGV driver's licence and disqualify him from holding or obtaining such a licence for 3 years. On 3 March 2011, the Sheriff quashed that decision in so far as it related to a 3 year disqualification period, and disqualified Smith for 12 months, finding the respondents (Secretary of Statement for Transport and Depute Traffic Commissioner) liable in the expenses of the appeal. That decision was subsequently appealed by the then respondents and now appellants.

It was submitted for the appellants that the Deputy Traffic Commissioner’s decision was reached on the basis of a proper application of his discretion. Therefore, the Sheriff was not entitled to quash his decision. If, however, the Sheriff Principal were to take the view that the Sheriff was entitled to do so, the Sheriff Principal was asked to quash the Sheriff’s decision on the basis that he had not taken into account material which he ought to have considered in reaching his own decision. If the Sheriff’s decision was to be quashed, the Sheriff Principal was invited to consider the matter anew and to find a 3 year disqualification period to be appropriate.

It was submitted for the respondent that the Deputy Traffic Commissioner had misdirected himself in law by considering irrelevant material, namely speculative additional offences which had not been proven at the driver’s hearing. The Sheriff was therefore correct to quash the decision and entitled to substitute it with his own decision. The respondent was a first offender and had made nine falsifications, which in terms of the relevant guidelines, attracted 12 months disqualification. The Sheriff’s determination was within his reasonable discretion and the Sheriff Principal was not entitled to interfere with that decision.

The Sheriff Principal held that the Sheriff was correct in finding that the Deputy Traffic Commissioner had taken into account irrelevant material. The Sheriff was therefore entitled to quash the decision and to either substitute his own decision for that of the Deputy Traffic Commissioner, or return the case for reconsideration.

However, the Sheriff Principal noted that the Sheriff had not taken into account that the relevant guidelines allowed not only for a period of disqualification in respect of falsification of records, but also in respect of use of a device to interfere with recording equipment. The Sheriff thus failed to take into account a relevant consideration and exercised his discretion wrongly. In the circumstances, two 12 month periods, amounting to a total of 2 years disqualification, would be appropriate. The Sheriff Principal therefore recalled the part of the Sheriff’s interlocutor imposing a 12 month disqualification period and having considered the matter anew, revoked the respondent’s LGV licence and imposed a 2 year disqualification period. Taking into account the disqualification period to which the respondent had already been subject, he was disqualified for one year and 211 days from the date of the decision. No expenses were found due to or by either party.

Fife Area Regulation and Licensing Committee v. Robert James Ewing [2011] CSIH 45

Wed, 10 Aug 2011 21:53:51 GMT

In this appeal, the Sheriff at Kirkcaldy had allowed an appeal by the respondent, against the appellant’s refusal to renew his taxi driver’s licence. Renewal of the licence had been refused following the respondent’s three convictions for driving offences, with the committee deeming him no longer a fit and proper person to hold the licence (Civic Government (Scotland) Act 1982, Sch 1, para 5(3)(a)(ii)).

Before the Sheriff, the respondent had relied on a précis of previous decisions taken by the appellant on similar licence applications. This was said to show that the committee had previously renewed licences to applicants with more penalty points on their driving licences than him, and that it regularly gave licence-holders at least one further warning when an initial warning had been followed by the commission of an offence. Having reviewed this document (which did not include details of the facts and circumstances of each case), the Sheriff concluded that there was “huge disparity” in the decisions of the committee, amounting to the unreasonable exercise of the appellant’s discretion. The Sheriff considered that the decision in relation to the respondent was so out of line with other similar cases noted in the précis that it must be considered arbitrary, and the Sheriff accordingly allowed the appeal.

The Inner House, having heard submissions and considered the evidence before it, ruled that the Sheriff had erred in his reasoning. The court found that the appellant was entitled to hold that the respondent was not a fit and proper person to hold a licence, as his first licence had already been issued with a warning, followed by a second warning, and then the occurrence of a further offence thereafter. The court also commented that the Sheriff should not have allowed the précis to be received as a production, since it had contained evidence which was not before the appellant at the time of their decision making. The court noted that it held only partial information and was inherently unreliable because it failed to examine the facts and circumstances of each case, which ultimately bore upon the disposal made. Appeal allowed.

Brightcrew Limited v The City of Glasgow Licensing Board, [2011] CSIH 46

Tue, 19 Jul 2011 21:18:10 GMT

Appeal case concerning Brightcrew’s application for a premises licence in respect of an adult entertainment venue known as “Spearmint Rhino” on Drury Street in Glasgow.

The City of Glasgow Licensing Board (the Board) refused Brightcrew’s application on the basis that the Board considered the granting of the licence would be contrary to two of the licensing objectives contained in the Licensing (Scotland) Act 2005[1]. Specifically, it was considered contrary to ‘preventing crime and disorder’ and ‘protecting and improving public health’[2].

In coming to this conclusion the Board referred to several alleged breaches of its “Code of Practice relative to the provision of dance entertainment in licensed premises”. The Code of Practice had no statutory basis but the Board would generally expect compliance with it and would take breaches of it into account when considering the suitability of premises for the sale of alcohol.

Conduct by Brightcrew which was identified by a licensing officer as being in breach of the code included:

a member of staff being unaware of the location of the risk assessment for the premises;
the issuing of advertising flyers which failed to depict the dancers suitably clothed;
a drinks promotion which had conflicted with the Board’s policy on “happy hours” (which was withdrawn after the licensing officer’s views were expressed to the local manager)
two dancers removing their bikini bottoms and exposing their genital area[3]; and
several dancers making “considerable contact” with patrons.

Brightcrew argued[4] that, in taking the view that any breach of its Code of Practice could lead to deprivation of the licence to sell alcohol, despite the lack of any objective effect of the breach on the licensing objectives relating to the sale of alcohol, the Board had made a material error of law.

An Extra Division of the Inner House allowed the appeal. The essential function of the 2005 Act is that of the licensing of the sale of alcohol. Since the licensing with which the Act is concerned is the licensing of the sale of alcohol, inconsistency with a licencing objective means inconsistency flowing from the permitting of the sale of alcohol on the premises. Whilst the objectives contained in the Act were desirable in a general sense, that did not empower a licensing board to insist on matters which, while perhaps unquestionably desirable in that sense, are nevertheless not linked to the sale of alcohol.

In other words, the Board was not entitled to refuse to grant a licence on the basis of breaches of its Code of Practice where the provisions breached did not relate to the sale of alcohol.

________________________________________________________________

[1] In terms of s23(5) and s4.

[2] Section 4(1)(a) and (d).

[3] It was explained to the court that the ladies in question had been engaged for one evening only, had been instructed to retain their bikini bottoms but that they were “accustomed to different practices in Edinburgh, whence they came”.

[4] In what was described by Counsel for the Board as a “full frontal approach”.

Duncan Wilson v. Glasgow City Council, Sheriff Miller, Glasgow Sheriff Court, 22nd June 2011

Fri, 01 Jul 2011 13:38:33 GMT

Parties and Background
This was an appeal against a decision of Glasgow City Council’s Licensing Committee. The appellant had been granted a private hire taxi driver licence on 29th January 2009. On 12th January 2011 the Licensing Committee refused to renew his taxi licence on the grounds that he was not a fit and proper person to hold such a licence. The appellant had listed three previous convictions on his application, two of which were traffic offences for which he received a total of six penalty points on his driver’s licence.

Parties’ Submissions
The appellant averred that the Licensing Committee exercised their discretion in an unreasonable manner by refusing the appellant's application for a private taxi licence and by failing to take account of mitigatory circumstances. The convictions that formed the basis of the Committee’s opinion were for minor offences. They took place at a time that the appellant was out of character following the death of his son. The appellant required his licence for his income and had been financially prejudiced by the decision to suspend his licence.

The respondents averred that their decision was well-founded in fact and law. The Committee was not asked to consider mitigating factors in their decision. The appellant had been granted his private hire car driver's licence in January 2009 along with a final warning regarding his future conduct.

Decision
The sheriff found for the respondents and refused the appeal. The Committee did accord correct weight to such mitigatory features as they were presented with, which was precious little. They did not reach a conclusion that could be said to have failed to make a correct balance. It was open to them to conclude that the appellant was not a fit and proper person to hold a private hire car licence and therefore refuse his application for its renewal.

Steven Ritchie v. Aberdeen City Council [2011] CSIH 22

Thu, 30 Jun 2011 22:52:22 GMT

In this action, the appellant appealed against the interlocutor of the Sheriff, whereby his appeal against a decision of the respondents to refuse to renew his taxi driver’s licence was refused.

The court heard that the appellant had been convicted of offences under the Road Traffic Act 1988 and in 2007, had consequently been banned from driving for one year. Upon successful completion of a rehabilitation course, the appellant applied and was granted the restoration of his driving licence in August 2008. In applying for the renewal of his taxi driver’s licence, the appellant was invited to attend a committee hearing of the respondents, were he gave oral evidence, alongside that of evidence from the Chief Constable, who had lodged an objection to the renewal of the appellant’s licence.

The appellant submitted that the committee, in refusing to grant the application for renewal of the licence, had failed to indicate in their statement of reasons, (i) why the committee refused the application and (ii) what material considerations it took into account. It was submitted that in these respects, the decision of the committee was unreasonable, and that it therefore amounted to a breach of natural justice.

Delivering the opinion of the court, the Lord Justice Clerk noted that the committee had thought the appellant’s conviction was of such a nature that it was a conclusive reason for refusal of the application, regardless of any mitigatory factors that might exist. In the court’s view, that was a misguided approach; to decide that any such conviction is per se a conclusive ground for refusal was unreasonable. Appeal allowed.

David Christie Thomson and Eileen Diana Ross MacAdie or Thomson v Aberdeen City Council, Sheriff Malcolm Garden, Aberdeen Sheriff Court, 23 March 2011

Fri, 24 Jun 2011 09:48:00 GMT

This was an appeal under the Civic Government (Scotland) Act 1982 against a local authority’s refusal to grant a house in multiple occupation licence in terms of the Civic Government (Scotland) Act 1982 (Licensing of Houses in Multiple Occupation) Order 2000, on the grounds that the applicant was not a fit and proper person to be the licence holder.

The pursuers jointly owned a property which the first pursuer leased without an HMO licence to six students, claiming he could rely on the exemption in respect of occupation by a religious community or family. The students were neither a family nor a religious community. Mr Thomson subsequently applied for an HMO licence for the premises, in his sole name. The application was refused by the defenders' licensing committee. A subsequent appeal was upheld and the application remitted back to the committee to consider de novo. During that committee meeting, Mr Thomson admitted colluding with his tenants to evade HMO legislation. His application was refused. A Statement of Reasons for the decision was then issued by the committee, inaccurately referring to both pursuers as licence applicants. The present appeal lay against the committee’s decision.

It was submitted for the first pursuer that the committee had considered irrelevant material in making its decision. Mr Thomson had been pressed into answering a question on a matter which ought not to have been before the committee. His answer should not be taken as an acceptance of dishonesty on his part. He had not been given a fair hearing and natural justice was not followed.

The defenders submitted there was no basis for finding that the committee had not considered the application of new. Although the Statement of Reasons erroneously referred to both pursuers as applicants, this did not negate the procedure. The applicable test was whether the decision was ‘so unreasonable that no reasonable authority could have reached it’ and it was for the local authority to assess the weight of any relevant material and balancing factors. There was adequate material for the committee to conclude the first pursuer had been dishonest, showed a poor attitude to the licensing regulations and was therefore not a fit and proper person to hold a licence.

The Sheriff found the first pursuer lacking in credibility and reliability and preferred the evidence of the clerk to the defenders’ licensing committee. The test to be applied was whether the defenders’ course of action and decision was one that no reasonable authority could have taken, having considered all relevant circumstances. It was not for the court to substitute its own view on the application. The Sheriff was satisfied the defenders had not taken account of irrelevant or incorrect material and there was no breach of natural justice. Whilst a differently constituted committee might have come to a different view, the committee‘s discretion was not exercised unreasonably. Mr Thomson had clearly mislead the defenders’ officials and the committee were entitled to find that his actings and approach made him unfit to hold an HMO licence. The first pursuer had failed to establish any of the criteria in article 18(7) of Schedule 1 to the 1982 Act.

The Sheriff held that the second pursuer’s appeal was incompetent. It was not unreasonable, however, to challenge the Statement of Reasons erroneously suggesting that she was subject to the committee’s decision.

The Sheriff accordingly repelled the pursuers’ pleas in law and sustained the defenders’ pleas in law. The first pursuer’s appeal was refused and his application dismissed, with the first pursuer liable to the defenders in the expenses of the action. The second pursuer's appeal was dismissed as incompetent with no expenses due.

John David Webster v. Orkney Islands Council, Sheriff Mungo Bovey QC, Kirkwall Sheriff Court, 1st May 2011

Mon, 16 May 2011 10:33:00 GMT

Parties and Background:
The defender was Orkney Islands Council, who’s Licensing Sub-Committee was responsible for the issue of taxi licenses in the local authority area. The pursuer was appealing against the defender’s decision not to renew two previously held licences and to deny new licences for three other vehicles.

Parties’ Submissions:
First, the pursuer submitted that, under Paragraph 18(7) of Schedule 1 to the Civic Government (Scotland) Act 1982, the defender had erred in law in putting the onus on the pursuer to prove he was a fit and proper person to hold a licence. Second, the defender was wrong to take into account comments by Northern Constabulary in respect of the pursuer’s fitness. Third, there had been no notice to the pursuer that his fitness was going to be considered by the Committee. Finally, the pursuer argued that there was no factual basis for the conclusion that he was not a fit and proper person.

Decision:
The sheriff found for the pursuer and reversed the defender’s decision to refuse the licenses. The licensing authority erred in law by placing the onus on the pursuer to prove that he was a fit and proper person. It was contrary to natural justice for the defender to fail to give notice to the pursuer of their intention to consider his fitness and there was no factual basis for their conclusion.

Francis Anderson v The Security Industry Authority, Sheriff Mhairi MacTaggart, Dumbarton Sheriff Court, 8th March 2011

Fri, 22 Apr 2011 16:39:56 GMT

The defender was the Secure Industry Authority (SIA), a statutory body responsible for the licensing of those operating in the security industry. The pursuer was one of five security industry workers, all associated with Ruchill Security Ltd., who previously held licences issued by the defender. All five were appealing the revocation of their security licenses by the SIA. The decision to suspend and revoke the licences was based on information contained in two letters sent to the SIA by Strathclyde Police. As the facts and arguments of each worker were identical, this action covered all five appeals under the pursuer’s name.

Pursuer’s Submissions:
The pursuer sought decree on the basis of preliminary pleas. First, the defenders had failed to follow the criteria for revocation of licenses as set out in s.7(1) of the Private Security Industry Act 2001. Second, the information contained in the police letters was hearsay evidence and, by relying on this evidence in making their decision, the SIA were in breach of Article 6 ECHR. Third, the information in the letters was irrelevant to the decision.

Defender’s Submissions:
The defender opposed the pursuer’s motion for decree and sought a proof before answer. It was argued that the court should not dispose of the appeals without consideration of the merits of them and that to determine the issues at debate was not a proper performance of the court's function in terms of the statute.

The defender submitted that it was not competent to challenge the SIA’s criteria by way of an appeal under section 11(5). This type of challenge required to be taken by way of judicial review. Whether the criteria had been approved was a matter of fact to be determined by way of proof. As for the police letters, the information should be tested at proof to determine whether it was hearsay evidence. The letters identified those individuals mentioned as being involved in serious gang land activities. The SIA were entitled to have regard to the letters and given the public protection element of their role. Finally, the defender submitted that ECHR issue was premature at this stage and should only be considered in the context of judicial review.

Decision:
The sheriff found for the pursuer, upholding the pleas-in-law and granting decree. The statutory criteria had been met and the SIA’s decision was based on the police letters which were hearsay evidence. There was nothing within the letters which were capable of proving the criteria and they were so lacking in specification as to be irrelevant. As the letters were the only basis for revocation of the licenses, Article 6(1) ECHR was breached.

Kenneth Watson Galloway, Honorary Secretary of the Stornoway Golf Club v. Western Isles Licensing Board, Temporary Sheriff Principal Charles Norman Stoddart, Stornoway Sheriff Court, 18 January 2011

Sun, 23 Jan 2011 21:23:42 GMT

In this appeal, the appellants disputed a decision taken by the Western Isles Licensing Board to refuse an application by the Secretary of the Stornoway Golf Club for a variation of a premises licence which they had issued to the club on 1 September 2009. The variation sought to increase services to members on Sundays by providing meals, snacks and opportunities to watch televised sport. The variation was not intended to allow the sale of alcohol to the general public, as the club permitted only its members or their guests to be supplied with alcohol on their premises.

The Board refused the application for variation on the grounds that it would result in the increased availability of alcohol, and that such increased availability would not be consistent with their aim to protect and promote public health. The Board had noted that the level of alcohol dependency and abuse in the Western Isles was a well-known fact in the public domain.

The appellants submitted that the Board had erred in law, by applying the wrong legal test to the determination of their application, had arbitrarily applied a general policy of avoiding increased availability of alcohol, and had also supplied insufficient reasons for their decision. The appellants also submitted that the Board had exercised their discretion in an unreasonable manner, without weighing up the effect a variation would have.

Agreeing with these submissions, the Sheriff allowed the appeal, noting as a preliminary matter that the Board should have considered whether there existed any of the grounds of refusal set out in section 30(5) of the 2005 Act. The Sheriff noted that if none of those grounds existed, the Board was bound to grant the application. The Sheriff observed that the Board had instead introduced into its exclusive decision-making process another requirement on the applicant, which had no basis in the statutory formula. The Sheriff categorized this as a clear error of law. Moreover, the Sheriff found that when Licensing Boards apply general policies, they must find and demonstrate a clear causal link between the particular mischief and the applicant; that had not been done in the present case and the Board had failed to explain how the granting of the variation would be detrimental to public health. The Sheriff therefore found that the application of the general policy had been arbitrary.

The Sheriff allowed the appeal and granted the variation sought, directing the Board to issue the Club with a new varied licence.

Mitchells & Butlers Retail Ltd v. Dundee City Licensing Board, Sheriff Principal R.A. Dunlop QC, Dundee Sheriff Court, 7 December 2010

Tue, 07 Dec 2010 22:57:42 GMT

In this appeal against a decision of the Dundee City Licensing Board, the appellants submitted that the Board’s decision of 18 March 2010 to issue them with a written warning in terms of section 39(2) of the Licensing (Scotland) Act 2005 should reversed. 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, under paragraph 7 of schedule 3 to the 2005 Act. That provision prohibited the variation of prices of alcohol during certain periods of trading.

The appellants operated a student discount card scheme, which entitled holders to reductions on the prices of alcohol, compared to the normal price paid by non-cardholder customers. The Licensing Board had taken 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 appellants argued that while the wording of paragraph 7 was ambiguous, its purpose was clear. The provision was intended to prevent “binge drinking”, and in particular “happy hours" during which the price of alcohol was reduced for a short period of time. The appellants submitted that 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. Against this background, the appellants submitted that paragraph 7 did not strike at differential pricing structures, which were a legitimate practice under the Act.

The court agreed with these submissions and allowed the appeal. The Sheriff held that the focus of the provision was the variation of an existing price over a period of time. Once prices have been set, even if they are different prices for the same product as in this case, it is those prices which may not be varied during the relevant trading period. The prices of the appellants clearly had not altered in such a way. Concluding that there had been no unlawful variation of paragraph 7, schedule 3, the Sheriff allowed the appeal and reversed the decision of the Board.

Information for Premises Licence Holders and Applicants & FAQ on occasional licences

Thu, 06 Aug 2009 15:44:59 GMT

Attached are two documents supplied by Janet Hood of BII Scotland:

In order to operate premises after 1 September 2009 a premises manager has to be named on the premises licence. A premises manager can only manage one premises.

If this of interest please see first document.

If you are interested in when occasional licences can be used, please see the second document.

All queries should be directed to:

Janet Hood LLB Dip LP ABII
Head of BII Scotland
Kirkton of Balfour Farmhouse, Edzell, Brechin, DD9 7XU
Accredited Licensing Specialist - Law Society of Scotland
Chairman In House Lawyers Group
0791 778 0923 - janet@bii.org