Published: 12 March 2015
Q: I have a condition on my licence which states that ‘no customers are allowed in the external raised area after 11pm’. I have been allowing the use if this area by smokers who are not drinking after 11pm and residents have complained, and I have had a nasty letter from the Council alleging breach of condition. What should I do?
A: This is a tricky one. Many conditions were imposed on premises licences before 2007 when the smoking ban came in. These conditions did not make any exception for smokers, and some of them have not been varied. This condition as it stands would prevent any customers even, if they are not consuming alcohol, from being in the raised area. Some Councils would take a relaxed view, applying common sense, but if it has been raised as an issue and is being enforced, then it needs to be addressed. You could apply for a minor, or more likely – because of residential concern, a full variation to exclude smokers from the condition post-11 o’clock. It may be possible, as the condition is fairly strictly worded, to allow smokers after 11pm to use an area which is not covered by the condition, in other words, an area which is not part of the ‘raised area’ or to limit the numbers after 11:00m. The Council may realise that this may be sensible because there is nothing to prevent customers leaving the premises and smoking outside where they could be closer to residential properties than in the ‘external raised area’ and causing greater disturbance than if they were in an area which was controlled and closer to the premises, and where they were more mindful to return to their drinks as soon as possible.
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