Sex Establishment Licensing Policy April 2021

General

It is important that applicants clearly set out the steps that they intend to take to promote the objectives of this policy. This is the applicant's opportunity to demonstrate that they intend to run a responsible business.

The Council will expect applicants to give consideration to the following issues:

• whether the activities are to be held in places where the passing public may see or hear them, for instance due to visibility/audibility from outside the premises or from the activities taking place in the premises
• ensuring that children are not admitted to and cannot witness these activities
• pre-employment checks and ongoing criminal record checks of staff
• effective and responsible management of the premises
• the external appearance and siting of external advertising, signage, and lighting including security lighting
• provision and maintenance of CCTV and storage of CCTV recordings
• the location of the premises and proximity to residential and other sensitive premises (see additional guidance on the location of the premises)

In respect of sexual entertainment venues, applicants will also need to consider:

• codes of conduct for performers and staff including supervisors and security
• rules of conduct for customers
• disciplinary measures for performers, staff, and customers in the event of breaches of the above

The Council considers the effective and responsible management of the premises, instruction, training and supervision of staff and the adoption of best practice to be amongst the most important control measures for the achievement of the objectives of this policy. For this reason applicants will be expected to demonstrate how they intend to implement appropriate measures in this respect. If applicants are not able to do so then the application is likely to be refused.

Right To Waiver

The Council may, upon application, waive the requirement for a licence in any case where it considers that to require a licence would be unreasonable or inappropriate. The waiver, if granted, may last for such period as the Council think fit, but can be terminated at any time with 28 days notice.

Each application for waiver will be considered on its own merits, however, any establishment that would normally require licensing under the provisions of the Act is unlikely to be granted a waiver other than in exceptional circumstances.

Application Details

The applicant shall make their application in accordance with Clause 10, Schedule 3, of the Act and using the Councils application form, a copy of which can be found on the Councils website.

The applicant must:

Send the Council:

• a completed and signed application form
• the documents listed in the application form
• the required fee

Advertise the application in a local newspaper within seven days of making the application. (A prescribed form of advertisement can be found on the Councils website).

Where the application is in respect of a premises display notice of the application on or near the premises subject to the application, where it can be conveniently read by the public, for a period of 21 days. (A prescribed form of notice can be found at on the Councils website).

Send a full copy of the application to the chief officer of police within 7 days of making the application, unless the application is made electronically when the Council will be responsible for sending the copy.

It is the policy of this Council that notice of such applications shall also be placed on the Council's website.

Fitness Of The Applicant

An applicant must be a fit and proper person to hold a licence. In determining the suitability of any applicant the Council will include in its determination:

• previous relevant knowledge and experience of the applicant
• any evidence or information or report of the operation of any existing or previous licence(s) held by the applicant, including any licence held in any other Licensing Authority area
• any convictions, cautions, warnings or reprimands
• any relevant comments from statutory objectors
• any observation from a statutory consultee

Whilst every application will be considered on its merits, the Council will be unlikely to grant an application from any person, or for the benefit of any person, with unspent criminal convictions.

Location Of The Premises

In accordance with relevant case law, the Council shall decide on the suitability of a particular locality for a Sex Establishment as a matter of fact to be determined by the particular circumstances of each case and not by the prescription of boundaries as stated on a map.

The Council is mindful of its power to determine that no Sex Establishment should be located in a particular locality.

Notwithstanding the above, licences will only be granted in predominantly commercial areas and the Council is mindful of its power to determine each application on its own merits. Applications will not normally be granted if they are to be within:

• areas that are exclusively, or predominantly residential in character; or
• in close proximity to a school or any other premises used by children or vulnerable adults; or access routes to such premises; or
• a publicly accessible open space that is regularly frequented by children or vulnerable adults; or
• in close proximity to a place of worship; or access routes to such premises; or
• areas that are likely to be adversely effected due to the cumulative impact of the existing sex industry

Commenting On Licence Applications

Unlike some other licensing regimes a wide range of people can raise objections about sex establishment licence applications. The Police are a statutory consultee for all applications.

Objectors should have something to say which is relevant to consideration of the statutory grounds for refusal that are set out in the Act and should not be based on moral grounds/values.

Objectors can include residents/tenants associations, community associations and trade associations. Councillors and Members of Parliament may also raise objections. Elected Councillors may also represent interested parties provided that they do not sit on the General Licensing Committee determining the application in question.

The Council will not consider objections that are considered to be frivolous or vexatious, or which relate to moral grounds (as these are outside the scope of the Act). Decisions on whether objections are considered to be frivolous or vexatious will be made objectively by officers and not on the basis of any political judgement. Where objections are rejected, the objector will be given a written reason.

A frivolous objection is generally taken to be one lacking in seriousness. A vexatious objection is generally to be taken to be one which is repetitive, without foundation or made for some other reason such as malice.

Objections will be considered by the Licensing Committee when the Council will give both the applicant and objectors an equal opportunity to state their case in accordance with the Council's protocol which is available on the Councils website.

Objections should:

• be made in writing or email within 28 days of the application being made
• be preferably in black ink on A4 paper
• indicate the name and address of the person or organisation making the objection (although this will not be disclosed to the applicant)
• indicate the premises to which the objection relates
• indicate the proximity of the premises to the person making the objection (a sketch map or plan may be helpful to show this)
• clearly set out the reasons for making the objection

Where notice of an objection is received the Council will, before considering the application, give notice in writing of the general terms of the objection to the applicant. However the Council will not without the consent of the person making the objection disclose their name or address to the applicant.

Consideration of an Application

General

When an application is received it will be processed and checked within 5 working days to ensure it complies with the requirements of the Act and this policy.

A consultation period of 28 days from the date of receipt of the application, unless it is deemed deferred pending further enquiries, shall follow to allow for any objections and/or observations to be made.

At the expiry of the consultation period the application will then be submitted to the Councils Licensing Committee for determination. This will usually be the next available scheduled meeting but subject to a minimum period of 20 working days to permit reports to be prepared and notice of the hearing to be given to the applicant and all interested parties. This period may be extended in exceptional circumstances and when all parties will be notified of the timescale and the reasons for the extension.

The Council will give the applicant(s) and objectors the opportunity of appearing before and being heard by the Licensing Committee before determining the application.

In determining an application relating to a Sex Establishment Licence the Licensing Committee of the Council will assess the application on its merits having regard to the content of this policy, the relevant legislation and any relevant guidance that may be issued from time to time, any observations submitted by the chief officer of police and any representations received.

Where it is felt necessary for the Council to depart from this policy clear and compelling reason for doing so will be given.

The Licensing Committee may consider refusing the application or granting a licence of 12 month duration or for a shorter term.

The decision of the Licensing Committee will be notified to the applicant and any objectors in writing and will include reasons for their decision.

The Council, when determining an application, shall have regard to any rights the applicant may have under Article 10 (right to freedom of expression) and Article 1, Protocol 1 (protection of property) of the European Convention on Human Rights.

Conditions

Schedule 3, section 13 of the Act provides a power for the Council to make regulations prescribing standard conditions in relation to Sex Establishment Licences.

The Councils Standard Conditions/Regulations are detailed in Appendix 1 of this policy.

All licences will be granted, renewed, transferred or varied subject to these Standard Conditions unless expressly excluded or varied by the Licensing Committee.

If other conditions are required in particular circumstances, they will be tailored to reflect the individual style and characteristics of the premises and activities concerned.

Conditions will not be imposed where the Council considers other regulatory regimes provide sufficient protection to the public e.g. health and safety at work and fire safety legislation.

Applicants who consider that some or all of the standard conditions should not be applied in their case will be expected to explain their reasoning in writing and will be expected to explain how the licensing objectives will be attained without such imposition.

Determination of Licence Applications Refusal of a Licence

Paragraph 12 of Schedule 3 of the Act sets out the grounds for refusing an application for the grant, renewal or transfer of a licence.

A licence must not be grated:

• to a person under the age of 18
• to a person who is for the time being disqualified due to the person having had a previous licence revoked in the area of the appropriate authority within the last 12 months
• to a person, other than a body corporate, who is not resident in an EEA State or was not so resident throughout the period of six months immediately preceding the date when the application was made; or
• to a body corporate which is not incorporated in an EEA State; or
• To a person who has, within a period of 12 months immediately preceding the date when the application was made, been refused the grant or renewal of a licence for the premises, vehicle, vessel or stall in respect of which the application is made, unless the refusal has been reversed on appeal

A licence may be refused for the following reasons:

• the applicant is unsuitable to hold the licence by reason of having been convicted of an offence or for any other reason
• if the licence were to be granted, renewed or transferred the business to which it relates would be managed by or carried on for the benefit of a person, other than the applicant, who would be refused the grant, renewal or transfer of such a licence if he made the application himself
• the number of sex establishments, or sex establishments of a particular kind, in the relevant locality at the time the application is determined is equal to or exceeds the number which the Council consider is appropriate for that locality
• that the grant or renewal of the licence would be inappropriate, having regard
• to the character of the relevant locality
• to the use to which any premises in the vicinity are put
• to the layout, character or condition of the premises, vehicle, vessel or stall in respect of which the application is made

A decision to refuse a licence must be relevant to one or more of the above grounds.

Variation Of A Licence

The holder of a sex establishment licence may apply at any time for any variation of the terms, conditions or restrictions on or subject to which the licence is held.

The process of applying for a variation is the same as that for applying for an initial grant except that a plan of the premises is not required unless the application involves structural alterations to the premises.

Renewal Of A Licence

The holder of a sex establishment licence may apply for the renewal of the licence. In order for the licence to continue to have effect during the renewal process, a valid application must be submitted before the current licence expires.

The process for applying for the renewal of a licence is the same as that for applying for an initial grant except that a plan of the premises is not required.

Transfer Of licence

An application for the transfer of a licence may be made at any time.

The process for applying for the transfer of a licence is the same as that for applying for the initial grant of a licence except that a plan of the premises is not required.

Appeals

Where the Council refuses an application for the grant, renewal or transfer of a Sex Establishment Licence the applicant may appeal the decision to a magistrates' court within 21 days of being notified of that decision, unless the refusal is for reason that the number of sex establishments, or sex establishments of a particular kind, in the relevant locality at the time the application is determined is equal to or exceeds the number which the Council consider is appropriate for that locality or that the grant or renewal of the licence would be inappropriate, having regard-

• to the character of the relevant locality; or
• to the use to which any premises in the vicinity are put; or
• to the layout, character or condition of the premises, vehicle, vessel or stall in respect of which the application is made
• In which case there is no right of appeal. In such cases the applicant can only challenge the refusal by way of a judicial review

Enforcement and complaints

The Council will investigate complaints about premises where appropriate, in relation to premises that are licensed and are breaching licence conditions or otherwise acting inappropriately, and in respect of unlicensed premises where it appears that the premises should be licensed.

The Council have adopted the Government's Concordat on Good Enforcement, which commits us to following fair, effective and consistent policies and procedures. On occasions we have to deal with matters that may constitute a criminal offence, for which a range of actions may be taken against an individual, partnership or company. These matters will be investigated thoroughly to establish all the facts and where appropriate Officers will use their legal powers to enter premises, take samples, inspect and copy records, or seize goods and documents. On all occasions we will comply with the Human Rights Act and the Regulation of Investigatory Powers Act. At the end of our investigation a decision will be made whether to deal with the matter informally, or whether to follow a more formal course of action that may ultimately lead to prosecution. How we reach that decision is explained more in our Enforcement Policy for Regulatory Services.

The Council will work in partnership with the Police, Trading Standards, Environmental Health and any other relevant authority to enforce the licensing legislation. This may include carrying out inspections of licensed premises, test purchases and the investigation of complaints. This partnership approach is intended to prevent duplication of effort, maximise the potential for controlling crime and disorder at premises and to ensure compliance with relevant conditions.

Inspections will take place at the discretion of the Council and its partner agencies and will be concentrated on areas of need. A light touch approach will be employed for well managed and maintained premises with a targeted and graduated inspection and enforcement regime for problem and high-risk premises.

Where possible and appropriate, the Council and its partner agencies will give early warning to operators of any concerns.

The Council will carry out its responsibilities for enforcement so as to promote the objectives set out in this policy.

Fees

Reasonable fees will be set to cover the cost of administration, compliance work and the cost of any hearings and will be reviewed annually.

Details of current fees can be obtained from the Council's website.