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13. Transition
Framework
273. This chapter is concerned with the transfer from the present alcohol licensing regime governed by the Licensing (Scotland) Act 1976 to the new regime instituted by the Licensing (Scotland) Act 2005 under the powers granted in section 145 of the 2005 Act.
274. Following the May 2007 Elections, local authorities will need to appoint new licensing boards. These are to be appointed in line with the provisions of the 2005 Act. This will entail having no fewer than 5 members but not more than 10 members per Board. Following their appointment this Board will be empowered to undertake matters which may arise under the 1976 Act until the start of the transition period in February 2008. This will avoid the need to operate two boards or appoint a larger number of board members who would then become surplus to need during the final period of operation of the 1976 Act.
275. All the licences under the new system and the majority of the provisions of the 2005 Act will take effect on a single appointed day following a transition period.
276. The transition period will start on the 1 February 2008 and last for a period of nineteen months till the end of August 2009 with the single appointment date being 1 September 2009.
277. Transition will take place at 5 am on the morning of Tuesday 01 September 2009. This avoids the change taking place on a weekend, usually a busy time for many premises and by tying the transition to a specific time when the majority of premises would be expected to be closed it should lessen the confusion of when a premises should be operating under one licence regime and not the other.
278. During Transition it will be necessary for 1976 Act licences to continue to run until the 01 September 2009 when these 76 Act licence will terminate automatically. During this period licences will be deemed to automatically be extended. No new licences will be issued. To promote fairness for licensees and reduce administrative complications, the following will be implemented during transition:
- No 1976 Act renewals - existing licences due to expire during transition and which would require renewal under section 30 of the 1976 Act will be automatically extended to run until the end of the transition period. Any automatic extension should include extending the licensees' children's certificate (Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 section 49).
- No 1976 Act regular extensions - such regular (annual) extensions as have been granted under section 64 of the 1976 Act when transition begins should be automatically extended to run until the end of the transition period. No new regular extensions would be granted once the transition period started unless in conjunction with a new application for a licence under the 1976 Act during the transition period.
- There will no longer be set Quarterly meetings. The last quarterly meetings will be held in January 2008.
- Boards will be required to use delegated powers/duty to clerks the remaining business of the 1976 Act , such as licence transfers. However Clerks are required to revert a case to a Board where they consider this to be 'necessary or expedient'.
- Licensing Boards will wish to note that should they refuse a regular extension at the March, June and October 2007 Board without a section 64(9) direction under the 1976 Act, then the applicant will be without a regular extension for the duration of the transition period. This situation is more stark for the quarterly Board of January 2008 as there will be no next Licensing Board at which the applicant could reapply.
The transfer of Existing Premises licences
279. To ensure a controlled flow of applications all existing licensees are required to apply for their new licence during one of the following periods, according to the month of the quarterly Board meeting in which their existing licence is due to expire (the year of expiry being irrelevant):
- March expiries - must apply by the last lodging date of 01 March 2008
- June expiries - must apply by the last lodging date of 01 June 2008
- October expiries - must apply by the last lodging date of 01 October 2008
- January expiries - must apply by the last lodging date of 12 January 2009
280. However there is nothing stopping an applicant lodging their application early and applications can be lodged from 1 February 2008.
281. Each Board would write out to each licensee [ at the address of the licensed premises] giving them the relevant deadline stated above. These 4 dates are the same for all Boards throughout Scotland and Licensing Boards are expected to notify license holders individually of their lodging dates at least twice.
282. The license fee as detailed in regulations enabled by section 136 of the 2005 Act would be due with the application when lodged.
283. Licensing Boards will have 6 month to determine a premises licence application during transition. This period would run from each of the 'last lodging dates' as noted above, even if licensees choose to apply earlier than their designated period. A Licensing Board is not required to deal with an application before the appointed determination period, nor are they prevented from receiving or processing an early application.
284. Should a licence holder fail to apply by the set lodging date, the licence holder looses their 'Grandfather Rights' and the application will be treated as an entirely new application when received.
285. This would mean an applicant who missed their lodging date could subsequently lodge an application at any time during the transition period. There would be a six month determination period from when the application was lodged. The application would need to include all the certificates required by an applicant for a new premises licence (building standards, planning and food hygiene certificates, section 50 of the 2005 Act) nor would the premises be exempt from the consequences of any overprovision assessment in section 23(5)(e) of the 2005 Act. If no application is received the licence would run to the end of the transition period and then terminate automatically.
286. Where there are no objections to an application and the clerk does not foresee any problems with the draft operating plan and layout plan - a list of non-controversial applications should be allowed to be submitted to the Board and agreed. Some Boards though might choose not to operate in this way and decide to scrutinise every case individually at full Board meetings however this flexibility is available. Determination itself must still be undertaken by the Board and not delegated.
Grandfather Rights
287. The following a set of partial 'Grandfather Rights' are applicable to existing 76 Act licensees as they transfer into the regime of the 2005 Act.
- Exemption from the consequences of the overprovision assessment and from the overprovision ground for refusal of a licence (section 23(5)(e)of the 2005 Act) where there is no change to the size, capacity or type of operation taking place on the premises.
- Exemption from the need to provide building standards, planning and food hygiene certificates where transfer is on a like for like basis. (section 50 of the 2005 Act)
- Where transfer is on a like for like basis but the licensing board considers that they would nevertheless be minded to refuse the licence on the grounds of the "location, character or condition of the premises" (section 23(5)(d) of the 2005 Act), but that suitable modifications can be made to address this, the licence must be granted and the licensee given a period of 12 months to make the necessary modifications. If the modifications are not made within this period the licence would be revoked.
288. No other Grandfather Rights are available and all other aspects of the new legislation would be applied.
Garage/Petrol Station Forecourt Shops
289. The 'Grandfather Rights' mentioned above do not apply to Garage/Petrol Station Forecourt Shops premises which presently hold a licence, unless the licensing board decides they fall under section 123(5) of the 2005 Act, which allows a premises which serves a wider local function or is a required community resource to continue to hold an alcohol licence. Garage/ Petrol Station Forecourt Shops which do not fall within this definition will no longer be able to sell alcohol after the 1 September 2009.
Personal Licence Applications
290. During transition Personal Licence applicants can apply by the following times:
- Those unassociated with a premises licence application - at any time during transition
- Those associated with a premises licence application i.e. as named premises managers (Schedule 3 paragraph 4 of the 2005 Act), to apply at same time as premises application.
- Where a premises has not identified a PM at time of application, it is acceptable to allow this name to be provided at any time prior to a determined date before the end of the transition period. If no name was provided by this date the premises licence will fall.
291. Unlike the transition of the Licensing Act 2003 there will be no grandfather rights for Personal Licence applicants and all applicants will be required to undertake the relevant training required by regulations under section 91 of the 2005 Act.
New Licences
292. There would continue to be a need to grant 1976 Act licences during the transition period if an applicant required a provisional licence or wished to operate during transition. It would not be commercially viable to prevent this.
293. This will be achieved this through a 'hybrid' application process. The outcome of a successful "hybrid" application process would be that:-
(1) Either:
(a) a current licence is granted which comes into effect immediately to allow the licensed premises to operate or,
(b) there is a provisional grant of licence in order to allow premises to be completed
and
(2) a new premises licence or provisional premises licence is granted which will not take effect until the appointed day.
294. The hybrid application process we have outlined sets out to deal with two main issues, firstly the type of licence (as set out in Schedule 1 of the 1976 Act) which is to operate during the transitional period and, secondly, the nature of the premises to operate as from the appointed day.
Submission of "Hybrid" Application
295. In order to deal with operation pre and post the appointed day, there would be one "hybrid" application form. This would require to set out the type of licence which is being applied for to operate during the transitional period, for example a public house or a restaurant. In addition to the paperwork required to fulfil the 1976 Act requirements the application should be accompanied by information in relation to the new premises licence to operate as from the appointed day, namely:-
- an operating plan,
- a layout plan and
- a section 48 certificate
296. In accordance with the new principle for transition that applications must be determined within a period of six months, applications for new businesses during the transitional period should be dealt with by the Board as and when they are received the six months should run from the date the Board receives the application with appropriate reminder triggers being maintained for the expiry of the determination period.
297. Due to giving Licensing Boards a six month period for determination of a Hybrid application, the final date such a Hybrid application could be lodged would be 1 March 2009. Past this date applications for premises licence under the 2005 Act only would be accepted.
298. During transition the requirement to publish a list of applications in a newspaper would be suspended, but only where a Licensing Board is able instead to publish such a list on the Local Authorities website.
Transfer of Premises Licence
299. During the transition period the ability to transfer a premises licence would require that both the 1976 Act regime and the 2005 Act regime run in tandem until the Big Bang date.
300. The ability to permanently transfer a licence under the 1976 Act regime will be a delegated power for the clerks.
301. If a premises application had already been granted under the 2005 Act regime in transition and an application for transfer was received in transition this would then follow the 2005 Act regime process for transfer. However if a premises application under the 2005 Act regime was submitted and the premises then changed hands under the transfer provisions of the 1976 Act prior to determination of the 2005 Act application then the application will automatically fall for the premises licence, and be resubmitted by the next lodging date. Grandfather rights would continue as long as the application was lodged on time. This would not be a substitution but a new application therefore requiring a new fee. Should an application fall in this way there is no requirement to reimburse the original premises licence fee paid.
Members Clubs
302. Members Clubs are authorised to supply alcohol to their members by a certificate of registration granted by a sheriff under Part VII of the 1976 Act. These clubs under the 2005 Act will be required to obtain a premises licence from the licensing board although section 125 of the 2005 Act ensures such clubs maintain their special character.
303. For transition Members Club will not need to continue to register during the transition period. Their regular extensions granted by licensing boards under s64(5) of the 1976 Act will also be extended to run until the end of the transition period. The lodging dates by which a Members Club must apply for a premises licence under the 2005 Act will be set by the local licensing boards and that Licensing Boards are required to individually notify Members Clubs of the lodging date at least twice. The determination period will be 6 months and existing Members Clubs should also enjoy the same Grandfather Rights as other existing premises when applying for a premises licence.
304. A new Members Club wishing to open during transition should be required to apply both to the sheriff and the Licensing Board (i.e. for a 76 Act licence to operate now and, at the same time apply for a premises licence). Further guidance on clubs is provided at Annex 10.
Seamen's Canteens
305. Section 40 to 46 of the 1976 Act makes provisions for Seaman's Canteens. However the 2005 Act has removed the option of special arrangements for Seaman's canteens and in future they will be required to follow the same process in gaining a single premises certificate.
Occasional Licences
306. Occasional licences for special events will continue to be granted under section 33 of the 1976 Act during the transition period and 1976 Act applications should continue to be submitted for an event date up to 8 weeks after the completion of the transition period being the 26 October 2009. Applications for an occasional licence for an event taking place after this date would be required to be made on the 1 September 2009 or after and fall under the provisions of Part 4 of the 2005 Act.
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