Late night venues - EMROs and the late night levy

Author:

Do you operate a late night venue?   For the purposes of this note, I mean a venue offering alcohol at any time between midnight and 6am the following morning.

If you do, you will potentially be the target of the new Provisions designed to either prevent you selling alcohol during those times, or taxing you for the privilege of doing so.

The new Provisions

Introduced under the Police Reform and Social Responsibility Act 2011, the Licensing Authority has the power to consider introducing into its area:

a) Late night levies 
b) Early Morning Restriction Orders

The Regulations allowing the process for implementation to be started, come into force on 31 October 2012. This will include consultation in the case of the Levy and advertisement and consideration of representations in respect of an EMRO. Government Guidance indicates that any consequential implementation is likely to take at least 6 months, with April – June 2013 being indicated as the earliest date for any such measures to bite.   And bite is the right word.

Late Night Levy (the Levy)

The purpose of the Levy is to raise revenue, primarily for the Police, to “pay for additional policing” required as a result of the crime and disorder connected to the supply of alcohol during the late night hours.

The Licensing Authority will decide, following consultation, whether to impose the Levy at all and, if it does, during what time period.   It can select either the full period, or limited hours during the period (eg 2am-6am), but they must be the same every night of the week.  The Levy will affect ALL late night premises in the Licensing Authority’s area supplying alcohol during the period set.

The Licensing Authority has a discretion to exempt properties within the fixed categories.  The categories include:

•  Residential hotels etc
•  Theatres and Cinemas- for genuine ticket holders, invitees, performers etc
•  Bingo premises
•  Community amateur sports club (registered as such)
•  Community premises not requiring a DPS
•  Premises offering such hours only on New Year’s Eve
•  Premises in a Business Improvement District (BID) area
•  Country pubs (criteria includes max population 3,000)

The amount of the Levy

This will depend on the rateable value of the premises, and the levy will be calculated in the same bands as the licence fees.  The Levy will be payable in addition to the annual licence fee, and at the same time.

Reductions

May be available at the discretion of the Licensing Authority, to a member of a “best practice scheme”.   This could include a Pubwatch group, Best Bar None or similar scheme, provided that it meets with the criteria set.  One of the criteria (which has met with criticism by and on behalf of the trade) is that there must be provision to expel a scheme member for non-compliance with the scheme.

The reduction is 30%, but is not cumulative, so there is no advantage (from a reduction point of view) in being a member of more than one qualifying scheme.

Reductions may be available if the licence lapses, or an EMRO prevents the late night hours being used.

Early Morning Restriction Orders (EMROs)

A Licensing Authority can, in making an EMRO, restrict the hours for sales of alcohol between midnight and 6am (or a specified part of that period) to the whole or a specified part of their area.   They have to find that it is “appropriate” for the promotion of the licensing objectives to do so.   Any authorisation for the sale and supply of alcohol in the designated area will be caught, unless exempt.

Exemptions are limited to:

•  The provision of mini bars in residents’ rooms,
•  The consumption of alcohol by a resident in his or her room, and
•  On New Year’s Eve.

The proposal to make an EMRO must be published in a newspaper and on the Licensing Authority’s website, and those in the prospective area must be notified.  Representations must be made within 42 days, and those who may be adversely affected are advised not to leave it too late before making a representation.

If the procedure is not followed correctly, there is a possibility that it could be challenged in the High Court.

If the Council is considering such a move, and your business could suffer as a result of either the Levy or an EMRO, you should get in touch with your licensing lawyer at the earliest opportunity to discuss the issues.