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A REPORT BY THE TASK GROUP SET UP TO REVIEW THE LICENSING PROVISIONS CONTAINED IN THE CIVIC GOVERNMENT (SCOTLAND) ACT 1982
12. SECTION 45 AND SCHEDULE 2 - SEX SHOPS
This part of the Act provides licensing authorities with an optional power to license sex shops in their area. Schedule 2 contains provisions in relation to definitions, exemptions, licensing procedures, display and appeals.
12.1 The licensing regime for sex shops provides licensing authorities with the power to ensure that the public interest is given due consideration in determining applications for licences and that the appearance of the premises does not cause undue offence. A questionnaire was issued to licensing authorities on the operation of sex shops in their area in order to assist the Task Group with our consideration of any ongoing requirement to licence the activity and to gauge the general effectiveness of the licensing regime. As a result, and noting that the majority of licensing authorities have passed resolutions requiring sex shops to be licensed, we concluded that it was in the public interest that the licensing regime should remain in place.
Conclusion
The Task Group concluded that it was in the public interest for the licensing regime for sex shops to remain and that it should remain as an optional provision.
12.2 The general consultation process provided the Task Group with a further opportunity to test the effectiveness of the current provisions. A number of respondents were of the view that the power which licensing authorities have under paragraph 9 of Schedule 2 to determine that the appropriate number of sex shops for a locality as 'nil' should be removed. It was argued that it was inappropriate to allow the licensing system to be used as a means of banning a particular activity entirely. In consideration, we noted that this power provided licensing authorities with the flexibility to ban sex shops from particular areas, where they considered them inappropriate, and not solely to impose a blanket ban on sex shops throughout their local government area. In so doing, however, the licensing authority cannot resolve in advance of an application that they will not have any sex shops in their area, or any part of their area, rather each application must be considered on its merits. In conclusion we were of the view that in the interests of local democracy, and given the large number of objections that these premises can generate, local authorities should retain this power.
Conclusion
The Task Group concluded that licensing authorities should retain the power provided at paragraph 9(6) of Schedule 2 of the 1982 Act to determine that the appropriate number of sex shops for a locality within a local government area should be nil, albeit each application requires to be considered on its merits.
12.3 The Task Group noted in its consultation paper that the sex shop licensing regime provides objectors to the granting or renewal of sex shop licences anonymity, a protection not afforded to objectors for any of the other licensing activities covered by the 1982 Act. The majority of those respondents who commented on this were of the view that the right to anonymity should be removed. As a result, and given that we did not consider that objectors to sex shop licences would be at any greater risk than objectors to other types of licence, we support the removal of the right to anonymity in this regard.
Recommendation
The Task Group recommend that the right to anonymity for objectors to the granting or renewal of licences for sex shops should be removed.
12.4 The Task Group considered representations that the definitions of 'sex article' and 'sex shop' were open to interpretation. However, we took the view that the definitions were fairly clear in practice and doubted that they could be improved upon.
Conclusion
The Task Group considered, but did not perceive there to be a need to amend, the definitions in the 1982 Act of either "sex article" or "sex shop".
12.5 Chapter 13.6 recommends that a review of the licence fees charged by licensing authorities under the provisions of Schedule 1 paragraph 15 (all activities except taxi and private hire cars and sex shops which are provided for separately at section 12 and Schedule 2, paragraph 18) be undertaken by SOLAR with a view to guidance being issued in an attempt to reduce the variance in the level of fees charged. For the avoidance of any doubt, we are of the view that this review should extend to all licensing activities in the 1982 Act, including sex shops.
Recommendation
The Task Group recommend that the review of licence fees charged referred to at 13.6 should extend to sex shops.
12.6 We were conscious that in reviewing the provisions of Part 1 of the Act ( Chapter 1) and Schedule 1 ( Chapter 13) a number of our recommendations had implications for the equivalent provisions contained at Schedule 2 for sex shops. Having considered these we have concluded that the recommendations at 1.4 (extension of rights of entry to civilian police); 1.7 (Scottish Ministers to consider possible review of criteria and level of fines); 13.1 (addition of date and place of birth to details mandatorily required on application form); 13.4 (extension of notice required for attendance at a hearing to consider grant/renewal of licence from 7 to 14 days); 13.5 (minimum period of notice licensing authority must give for a suspension hearing reduced from 21 to 14 days); and 13.7-13.8 (slightly revised timescale for notification of decision, requesting reasons, time for local authority to respond and period for lodging an appeal) should also apply in relation to the equivalent provisions contained at Schedule 2.
Recommendation
The Task Group, having considered the implications of the various recommendations contained at Chapters 1 and 13 of this report, recommend that those contained at paragraphs 1.4, 1.7, 13.1, 13.4, 13.5 and 13.7-13.8 should also apply to the equivalent provisions contained at Schedule 2 of the Act.
NOTE
The age limit for entering sex shops is 18, in line with the minimum age for purchasing R18 videos which sex shops are licensed to sell. The legislation governing R18 videos is a reserved matter for the Westminster Government and as such the Task Group considered that a review of these provisions to be outwith its remit.
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