Sex Establishment Licensing Policy April 2021
There are a number of terms that are used in the Act which have a specific meaning as defined in the Act, or which are open to interpretation, and this policy seeks to set out the interpretation that will generally be applied by this Council.
"Sex shops" are defined in the Act as any premises, vehicle, vessel or stall used for a business which consists to a significant degree of selling, hiring, exchanging, lending, displaying or demonstrating sex articles or other things intended for use in connection with or for the purpose of stimulating or encouraging sexual activity.
"Sex cinemas" are defined in the Act as any premises, vehicle, vessel or stall used to a significant degree for the exhibition of moving pictures which are concerned primarily with the portrayal of, or primarily deal with or relate to, or are intended to stimulate or encourage sexual activity, acts of force or restraint which are associated with sexual activity or are concerned primarily with the portrayal of, or primarily deal with or relate to, genital organs or urinary or excretory functions.
"Sexual entertainment venues" are defined in the Act as any premises, vehicle, vessel or stall at which relevant entertainment is provided before a live audience (which can be only one person) for the financial gain of the organiser or the entertainer. It is important to note that the definition of 'premises' does not include a private dwelling to which the public are not admitted. 'Relevant entertainment' is any live performance or 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. 'Displays of nudity' are displays of a person's pubic area, genitals or anus, and in the case of women, nipples also.
The term 'significant degree'is used in respect of sex shops and sex cinemas and is not defined in the Act. Although there has been some case law regarding the meaning of this term, there is no rule of thumb that can be applied when determining whether the sale of articles etc. constitutes a significant degree of the business in question. It is clear from the relevant case law that the ratio between sexual and other aspects of the business will always be material, as will the absolute quantity of sales, movies shown etc. It is the policy of this Council that when determining whether licensable activities constitute a significant degree of the business, it will have regard to character of the remainder of the business, the nature of the display and the nature of the articles, films, etc.
Whilst the term 'significant degree' is not used in relation to sexual entertainment venues, the principle has in fact been established within the Act as premises that have relevant entertainment less frequently than once a month are excluded from the definition of 'sexual entertainment venues'.
It should also be noted that only licensed sex shops can sell or supply DVDs and other recordings that are certified 'R18', and it is an offence under The Video Recordings Act 1984 to do so without a licence.
This policy sets out guidelines for licensing these types of premises in this Councils area. The objectives of this policy are to:
- Enable applicants, licensees and interested parties to understand the principles that will be applied by the Council when regulating such premises;
- To establish the general principles that will be applied by the Council in its regulatory activities; and
- To assist in applying the national legislation within the context of the borough as a whole and within the wards that make up the borough.
The overriding objective of this policy is to ensure that premises licensed by this Council under this legislation do not contribute directly or indirectly to crime, disorder or harm to individuals or groups within the community; whilst seeking also not to be unduly restrictive of the rights of persons seeking to operate well run premises in appropriate locations. It will be the intention of the Council to consider each application on its own merits, and to act in a fair and proportionate way to achieve this objective.
The Council in carrying out its functions in accordance with this policy seeks to achieve control of sex establishments within the terms of the Act. Terms and conditions will focus on achieving the objectives stated above with reference to:
- Matters within the control of individual licensees
- The specific premises and/or the places used for the business
- The vicinity of those premises and places
- The direct impact of the activity taking place at the licensed premises on the normal activity of the public who live and work in the area concerned
This policy should be read in conjunction with the Act itself and any Home Office guidance issued from time to time.
This policy does not in any way fetter the discretion of the Council and each application will be considered on its individual merits. The main consideration when determining matters under this policy is whether to apply the policy as set out or whether there is good reason, having regard to all relevant matters and disregarding all irrelevant matters, to depart from the policy.
Implementation And Review
The revised policy will take effect from (date to be confirmed following report to Cabinet March 2021)
The Council will keep this policy under review and will consult where appropriate on proposed revisions. A full review of the policy will be conducted every five years from the date of effect above.
From the effective date this policy will override and supersede all existing policies in relation to sex establishments.
The Council may monitor and review this policy or areas of the policy prior to the five year review period when considered necessary.
Subsequent to the introduction of the revised policy, the Council may make decisions, which change the content of this policy. The changes may have immediate effect or expressed as coming into effect on a given date. This policy document will be updated to reflect these changes. Copies of this policy will be available on the Councils website.
Integration With Other Statutes
Certain premises licensed under The Licensing Act 2003 may already be providing regulated entertainment that will also require them to obtain a sexual entertainment venue licence.
There are exemptions in the Act when the regulated entertainment is provided on fewer occasions, less frequently or for a shorter period of time than is required to trigger the requirement for a sexual entertainment venue licence. Licensees may also request the Council to waiver the requirement for a licence, which is discussed further below.
Where premises are required to be licensed as sexual entertainment venues, it will not be necessary to also have a licence under the Licensing Act 2003 to permit the entertainment. However, if other activities licensable under the Licensing Act 2003 (e.g. the sale of alcohol) are to be permitted at the premises then it will still be necessary to obtain a premise licence, club certificate or temporary event notice to authorise those activities.
Premises will not be excluded from the scope of both licensing regimes, so if sexual entertainment is provided on an infrequent basis which exempts it from the requirement for a sexual entertainment venue licence, a premise licence or club certificate or temporary event notice would still be required.