Brightcrew Limited V. The City Of Glasgow Licensing Board
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Clarke,Lord Eassie |
| Judgment Date | 12 July 2011 |
| Neutral Citation | [2011] CSIH 46 |
| Docket Number | XA86/10 |
| Date | 12 July 2011 |
| Court | Court of Session |
| Published date | 12 July 2011 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lord Clarke Lord Wheatley | [2011] CSIH 46 XA86/10 OPINION OF THE COURT delivered by LORD EASSIE in Appeal by BRIGHTCREW LIMITED Pursuers and Appellants; against THE CITY OF GLASGOW LICENSING BOARD Defenders and Respondents: _______ |
Alt: S. Wolff, Q.C., M. Ross; Legal and Administrative Services, City of Edinburgh Council (Defenders and Respondents)
12 July 2011
Introductory
[1] This is an appeal under section 132(6) of the Licensing (Scotland) Act 2005 - "the 2005 Act" - against a decision of the sheriff at Glasgow on an appeal to him by way of stated case under section 131(2) of the 2005 Act. The appeal by stated case was brought by the appellants against a decision of the City of Glasgow Licensing Board - "the Board" - to refuse an application made by the appellants under section 20 of the 2005 Act for a premises licence.
[2] The application which the Board refused is sought in respect of premises in Drury Street, Glasgow, in which the appellants trade under the style of "Spearmint Rhino". The premises trade, and have traded for a number of years, as an adult entertainment venue, namely a nightclub with lap dancers. Prior to the adoption of the current trading name, the premises traded similarly under the style of "the Truffle Club". The premises were the subject of an entertainment licence granted under the Licensing (Scotland) Act 1976 and the application which was refused by the Board and which is the subject of this appeal was for "conversion" of the entertainment licence into a premises licence under the new licensing régime set up by the 2005 Act. The application for the premises licence was submitted to the Board in terms of paragraphs 17 and 18 of the Licensing (Transitional and Savings Provisions) (Scotland) Order 2007. The application was lodged with the Board on 15 January 2009 and was considered and refused by the Board at a meeting held on 15 May 2009. Had it been granted, the premises licence sought in the application would have superseded the entertainment licence on 1 September 2009 when the new régime entered fully into force.
[3] The operating plan which accompanied the application made plain that in addition to offering the sale of alcoholic drinks, the establishment would offer "adult entertainment", a term which is given specific meaning by the Licensing Conditions (Late Opening Premises) (Scotland) Regulations 2007:
" 'adult entertainment' means any form of entertainment which -
(a) involves a person performing an act of an erotic or sexually explicit nature; and
(b) is provided wholly or mainly for the sexual gratification or titillation of the audience."
[4] The operation of the premises in Drury Street as a lap dancing venue had not occasioned any complaint by the police, or anyone else, of its leading to public disorder, the commission of crime or problems connected with criminal activity. The appellant's application for the premises licence was thus unopposed by those having locus to raise such issues. No representations or objections in terms of section 22 of the 2005 Act were made.
[5] Section 23 of the 2005 Act, which is headed "Determination of Premises Licence Application", provides inter alia:
"(1) A premises licence application received by a Licensing Board is to be determined in accordance with this section.
...
(4) The Board must, in considering and determining the application, consider whether any of the grounds for refusal applies and -
(a) if none of them applies, the Board must grant the application, or
(b) if any of them applies, the Board must refuse the application.
(5) The grounds for refusal are -
...
(c) that the Licensing Board considers that the granting of the application would be inconsistent with one or more of the licensing objectives,
(d) that, having regard to -
(i) the nature of activities proposed to be carried on in the subject premises,
(ii) the location, character and condition of the premises, and
(iii) the persons likely to frequent the premises,
the Board considers that the premises are unsuitable for use for the sale of alcohol,
..."
The licensing objectives to which section 23(5)(c) refers are set out in section 4:
"(1) For the purposes of this Act, the licensing objectives are -
(a) preventing crime and disorder,
(b) securing public safety,
(c) preventing public nuisance,
(d) protecting and improving public health, and
(e) protecting children from harm."
[6] In determining that the appellants' application should be refused, the Board invoked two of the grounds of refusal listed in section 23(5) of the 2005 Act. The first of those grounds was that contained in paragraph (c) of section 23(5) and the licensing objectives to which the Board referred in that connection were (i) protecting and improving public health and (ii) preventing crime and disorder. The second ground of refusal invoked by the Board was that the premises were unsuitable for the sale of alcohol (section 23(5)(d)).
[7] The basis for the Board's holding that the second ground of refusal applied is set out in the penultimate and pre-penultimate sentences of the final paragraph of the case stated by the Board:
"In the Board's view, premises providing Adult Entertainment, involving a person performing an act of an erotic or a sexually explicit nature, and which is provided wholly or mainly for the sexual gratification or titillation of the audience, could only be considered to be suitable for the sale of alcohol where the Board was satisfied that its said policy on Adult Entertainment would be complied with - particularly with regard to the health and safety of dancers. Given the occurrence of several breaches of its current Code of Practice over a very short period of time, the Board was not satisfied that the applicant would so comply which therefore rendered the premises unsuitable as aforesaid."
The sheriff was satisfied that the Board's reliance on section 23(5)(d) was irrational and, to that extent, he accordingly upheld the appeal to him. The Board has not cross appealed against that part of the sheriff's decision, the soundness of which is thus accepted. Accordingly the present appeal is concerned only with the first ground of refusal, which also proceeded on what are the same alleged breaches of the Board's "current Code of Practice".
[8] In the course of her submission to us, counsel for the Board confirmed that notwithstanding references elsewhere, for example in the sheriff's note, to a statement of licensing policy, the references in the stated case were references to the Board's Code of Practice which had been drawn up in March 2005 with the title "Code of Practice relative to the provision of dance entertainment in licensed premises". Counsel for the Board also confirmed that there was no statutory basis upon which this code of practice was drawn up. Indeed, that is recognised by the preamble to the code which states, among other things,
"Whilst the Code has no statutory basis, the Board will generally expect compliance with it's (sic) terms and any failure to do so may be taken into account in assessing the continuing suitability of any affected premises for the sale of alcoholic liquor."
The Board later incorporated, without material amendment, the text of the code of practice in the licensing policy statement which the Board issued in terms of section 6(2) of the 2005 Act.
[9] The breaches of that code of practice to which the Board refers in the stated case are based upon a brief report by a licensing standards officer and may be summarised as follows:
(i) Risk Assessments: On 17 May 2008 the member of staff with whom the licensing standards officer in question spoke on the occasion of that visit was unaware of the location within the premises of the documents containing the risk assessments, (which had indeed been prepared). This was said to be an infraction of the provision of the Code of Practice which states:
"A risk assessment should be undertaken and appropriate control measures should be implemented in respect of
· The precise work activities required of dancers
· The personal safety of dancers
· The use of chemicals which may come into contact with dancers' skin
This is not an exhaustive list and licensees should ensure that all hazards are assessed."
(ii) "Flyers": The report by the licensing standards officer stated that on 8 April 2009 the appellants had circulated what are described as "flyers" which breached the terms of the Board's code of practice. The relevant provision in the code of practice is:
"Dancers remaining in the public or private dance areas before, following or between performances should be suitably clothed at all times with no exposure of breasts or genitalia. Any advertising of performances outwith the licensed premises whether by way of newspaper advertisements or notices at the premises may only depict dancers suitably clothed as aforesaid."
A copy of the "flyer" is included in the appendix lodged in this appeal. The "flyer" is in fact a small card measuring 5cm x 8cm offering free entry to the establishment and gives a lateral view of the heads and upper torsos of two ladies who face each other. Superimposed on, and largely obscuring, that lateral view drawing of the heads and torsos is the text, in vertically arranged lines - "Spearmint Rhino" - "Rouge" - "VIP ENTRY" - "Admit one guest".
(iii) Drinks Promotion: On 27 April 2009 a promotion, said by the Board to conflict with the Board's policy on "happy hours" and the promotion of low cost alcohol, appeared on the appellants' website - apparently in the form of an e-mail message to patrons, or possible patrons, registered as such on the appellants' database of patrons - and was immediately withdrawn. On 7 May 2009 another promotion was sent to those on that electronic...
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