News: Lap Dancing Clubs
(Press Article)- Date: 14/10/2009
- Author/Solicitor: Lisa Sharkey
Summary of Proposals in Consultation Document setting out the Transitional Arrangements for Lap Dancing Clubs proposed under the Policing & Crime Bill.
If the proposals contained under the Policing & Crime Bill are brought into force then, subject to Local Authorities adopting relevant provisions, existing and new lap dancing clubs will have to apply for a Sexual Encounter Licence under the Local Government (Miscellaneous Provisions) Act 1982.
This licence will be in addition to the need to obtain a Premises Licence.
Current indications are that the Bill will be introduced into law in April 2010.
The need to obtain a licence will only arise if the Local Authority formally adopts provisions contained in the 1982 Act. Even if your Local Authority have adopted current provisions and licence sex shops and sex cinemas, they will still have to readopt the provisions to then start the process of licensing lap dancing clubs. It is important for operators to track with their Local Authority whether they have currently adopted the provisions and whether they intend to readopt the provisions if the law is changed.
Responses to the current consultation document must be received by 14th December 2009. A full copy of the document can be accessed via the Home Office website. Responses must be sent via email to SEVconsultation@homeoffice.gsi.gov.uk or alternatively you can write to Thomas Cottam, 4th Floor, Peel Building, 2 Marshall Street, London, SW1P 4DF.
The Proposals
• The transitional period will start on the date the Local Authority adopts the provisions of the 1982 Act. This will be called the 'first appointed day'. The transitional period will then run for 12 months.
• For 6 months following the first appointed day, both existing and new operators will be able to submit their applications to the Local Authority. Those applications will not be considered individually and will be considered together. The reason for this is that Local Authorities may decide to limit the number of premises in a particular area and therefore if all applications are considered together it was deemed fairer as some are likely to be refused.
• The 'second appointed day' starts at the end of the 6 month period. Applications received after the 'second appointed day' will then be considered individually.
• Any licence which is granted will not come in to effect until the end of the full 12 month period, which will be known as the 'third appointed day'.
• Any operator who has failed to obtain a licence by the end of the 12 month period will not be allowed to provide lap dancing entertainment even if their current Premises Licence/Club Premises Certificate currently permits it. (The only exception stated in the consultation document is if an application has been lodged before the end of the 12 month period but has not been determined. Interestingly, it does not say when the application has to be lodged by - perhaps a day before the 12 month period ends?
• In respect of new operators, if the current Premises Licence or Club Premises Certificate does not allow lap dancing when the first appointed day starts then even if the licence/certificate is varied thereafter, they will not be permitted to provide lap dancing until the Sex Establishment Licence has also been granted. (This would apply to any operator who has applied for permission under their current premise licence/certificate but that application remains outstanding on the first appointed day.) Remember, an application for a new Sex Establishment Licence cannot be actually granted until after the first 6 month period has concluded so you should question whether it is fair upon a new operator that they are forced to wait before they can start providing the entertainment; whereas existing operators (including operators who have no restriction in their current licence and decide they want to start providing entertainment) can just operate without restriction until the end of the 12 month period. It is also not clear in the consultation document whether 'new operators' whose 'Sex Establishment Licence' has been granted are bound by the conditions of the SEL immediately whereas the 'existing operator' will not be bound by them until the full 12 month transitional period has ended.
• Licences granted for sex encounter venues will not come into force until the third appointed day which is the end of the 12 month transitional period. (This is subject to the comments above in relation to 'new operators'.)
Relevant Entertainment
Any live performance or display of nudity which is of such a nature that, ignoring financial gain, it must be reasonably assumed to be provided solely or primarily for the purpose of sexually stimulating any member of the audience (whether by verbal or other means).
Exemption
Premises providing the entertainment on a limited number of occasions a year will not need to apply for a licence even if the Council adopt the provisions. This must be no more than 11 occasions in a 12 month period with a period of at least 1 month between each occasion.
Reasons as to why existing clubs are not given protection
Existing clubs will have to apply in exactly the same way as new clubs for a licence. They receive no protection and could therefore have the right to have entertainment removed and could be forced to close. The Guidance reminds Local Authorities that they will need to consider any rights under Article 1, Protocol 1 of the European Convention of Human Rights which is 'the right to peaceful enjoyment of his possessions'. A licence and the right to currently provide adult entertainment at a club is classed as a possession. The Government go on to state that they are not proposing to give any existing licence holders preferential treatment or indeed exclude them from the provisions of the Bill. They state that to automatically grant the licence would be contrary to the intent behind reform which is to give local people greater say over the number and location of lap dancing clubs in their area.
What is the effect of a New Sex Establishment Licence upon Premises Licence/Club Premises Certificate after the third appointed day?
The consultation document proposes that from the third appointed day, conditions upon current licences relating to adult entertainment will be read as though they have been deleted and that the premises will then be subject to the conditions on the Sex Encounter Licence.
Other Adult Entertainment Venues
The consultation document looks at other sex encounter establishments, hostess bars and the provisions of Section 2 of the Local London Authorities Act 2004. I am not proposing to cover these in this article but if you have any specific enquiries regarding these matters I would invite you to contact me.
Questions posed by the consultation document
The point is made that the consultation document is not seeking your views upon whether to reclassify lap dancing clubs as sexual establishments. That decision has already been made. It seeks your views upon the transitional arrangements. The consultation document poses a number of questions. Click on the link to view a full copy of the consultation document -
www.homeoffice.gov.uk/documents/cons-2009-sev/
For further information, please contact Lisa Sharkey .
