Monthly Archives: June 2016

ALMR Early adoption of Pub Code needed to avoid further confusion

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ALMR Early adoption of Pub Code needed to avoid further confusion

Following the publication of a revised Statutory Code for Pubs, the ALMR has welcomed the move towards clarification but urged the Government to implement the code at the earliest opportunity.

ALMR Chief Executive Kate Nicholls said: “The publication of the revised Code will provide licensees with some peace of mind and a sense of clarification on an issue that has dragged on for some time now.

“We note with some concern, however, that the revised Code appears to give no mention of a solid implementation date, only that the legislation will take effect the day after its approval.

“Any further delays risk adding to the sense of uncertainty, undermining confidence and investment and will pose further problems for any lessees with ongoing issues.

“The ALMR will be pressing BIS and the Committee Clerk to provide us with a degree of certainty regarding the timetable for implementation. The ALMR will also continue to work closely with its members, providing support and information at our workshops, during this period of transition.”

PGB will continue to provide support for lessees

The Pub Governing Body has confirmed that both the Pubs Independent Rent Review Scheme (PIRRS) and the Pubs Independent Conciliation and Arbitration Service (PICA-Service) will continue following the adoption of the Statutory Code for Pubs.

The PGB will provide services for pub companies that operate fewer than 500 tied pubs, with both schemes as part of self-regulation in the sector. The PICA-Service for lessees of these smaller pub companies will be based on a updated voluntary code that reflects the statutory code for the larger pub companies, with the revised code due to come into effect at the same time as statutory legislation.

The PIRRS and PICA-Service will also deal with any cases from lessees of pub companies covered by Industry Framework Code Version 6 relating to events prior to the statutory code for one year after the new code’s implementation.

Sir Peter Luff, Chairman of the Pub Governing Body said:

“The PGB still has a vital role to play, as the industry enters a new phase.

“Companies with fewer than 500 tied pubs will not be covered by the statutory code and it is essential that options for licensees to settle disputes quickly still exist.

“So while the landscape of licensed hospitality is evolving, we will remain on hand to provide speedy and affordable dispute resolution for tenants and lessees.

“The PGB will also continue to work with pubs based in Scotland via a Scottish specific voluntary code, providing crucial support for those businesses not affected by legislative change.

“Furthermore, both PIRRS and PICA-Service will be available for disputes arising under the old regime, with a period of one year, from the commencement of statutory regulation, to bring those cases forward.

“As the sector adjusts to change it is more important than ever that the PGB is on hand to provide cost-effective and impartial support for businesses.”

JG & Partners Jun/July Licensing News

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JG & Partners June/July Licensing News

Environment, Food and Rural Affairs Parliamentary Committee launches an inquiry into the economic etc. impact of food waste in England.

Posted: 11 Jul 2016 07:00 AM PDT
In the UK, approximately 8 million tonnes of food is wasted post-manufacture, including households, retail and wholesale and hospitality/food sector. 60% of this could have been avoided. This has an annual value of approximately £16 billion a year’. This Committee has announced that it will examine the economic, environmental and social impacts of food waste with a focus on …

‘Industry Guide to Good Hygiene Practice: Catering 2016’ – BHA

Posted: 11 Jul 2016 03:00 AM PDT
Following our earlier article, the British Hospitality Association (BHA) today publishes their Industry Guide to Good Hygiene Practice: Catering 2016, which is has been prepared in consultation with the Food Standards Agency and Food Standards Scotland. This is the first update to the guidelines in 20 years and will help businesses who serve food to do so safely. The serious consequences of p…

Gambling – Responses to gaming machine consultations published

Posted: 12 Jul 2016 08:00 AM PDT
We have previously reported upon the Gambling Commission’s consultation concerning where gaming machines should be played. The consultation window closed on 22nd February and the Commission have now published a summary of the responses received. Many respondents to the consultation reportedly called for a clearer explanation of how compliance with any new provisions would be assessed du…

Gambling – Proposals for changes to Commission Fees

Posted: 11 Jul 2016 02:00 AM PDT
The Gambling Commission and Department of Culture Media and Sport have published a joint consultation on proposed changes to Gambling Fees. A Link to the Gambling Commission release on this subject  can be found here. Some of the main points highlighted by the Gambling Commission are as follows: “The proposals in this consultation take account of the significant changes to our …

Gambling – Code of practice for gaming machines in clubs and premises with an alcohol licence

Posted: 07 Jul 2016 09:00 AM PDT
A (possibly timely) reminder for licensed premises which have provision of facilities for gaming machine gambling in accordance with club gaming, club machine and alcohol licensed premises permits. There is Gambling Commission Guidance in place with which premises should comply which deals with the siting (and possible co-location with ATMs) of such machines, responsibility for compliance with…

Food Safety – FSA consults on ‘rare burgers’ – differently but again

Posted: 06 Jul 2016 09:00 AM PDT
Further to our previous news on this topic the Food Standards Agency (FSA) is now consulting on the proposal to introduce specific approval in FSA approved establishments for the production of minced meat / meat preparations intended to be eaten less than thoroughly cooked. Restaurants and catering establishments who intend to serve burgers less than thoroughly cooked need to ensure that all r…

Copyright law changes affecting licensed premises

Posted: 21 Jun 2016 07:00 AM PDT

This is a very technical area (which we will deal with at the most superficial level). The Copyright (Free Public Showing or Playing) (Amendment) Regulations 2016 were laid before Parliament on 9 May 2016 and came into force on 15 June 2016. This relates largely to the illegal showing of unauthorised broadcasts in public places and notably pubs. You w…

UK Night Time Economy – and the terrorist threat

Posted: 21 Jun 2016 06:00 AM PDT

The National Counter Terrorism Security Office (NaCTSO) offers businesses operating in the Night Time Economy the opportunity to take part in a regional ‘Project Argus’ initiative, a programme of counter terrorism testing and exercises, delivered by Counter Terrorism Security Advisers and Counter Terrorism Awareness Advisers.  NaCTSO state that ‘taking the opportunity to attend a se…

Gambling – Licensing day of action – Inspection Templates

Posted: 16 Jun 2016 03:00 AM PDT

The Institute of Licensing (IoL) will be holding its first annual Licensing Awareness Week from the 20th to 24th June (in part) in conjunction with the Gambling Commission. The 21st June has been entitled Gambling and Gaming day and will focus on gambling licensing. The Commission has lined up a number of visits with local authorities to a range of …

Gambling – Money Laundering Guidance issued

Posted: 16 Jun 2016 02:00 AM PDT

The Gambling Commission have now issued a short leaflet regarding money laundering within the Gaming industry.  Although aimed at Licensing Officers and Local Police as a guide for enforcement authorities it does include a summary of Operator’s requirements and some interesting case studies. If you are interested, a copy of the guide can be found here.

Gambling – B2 Gaming Machines – Proposed Restrictions

Posted: 15 Jun 2016 03:00 AM PDT

On 14th June 2016, the Bishop of Bristol (on behalf of the Bishop of St Albans), introduced a Bill to the House of Lords to make provision for licensing authorities to restrict the number of Category B2 gaming machines which may be authorised under a betting premises licence. A link to the draft Bill can be found here. As this is not a Government sponsored Bill it faces an uncertain…

FSA Annual Report of Incidents 2015 published

Posted: 10 Jun 2016 06:30 AM PDT

Yesterday, the Food Standards Agency (FSA) published its latest Annual Report of Food Incidents. It shows that in 2015, the FSA and Food Standards Scotland were notified of, investigated and managed 1,514 food, feed and environmental contamination incidents in the UK. The overall number of incidents was similar to those seen in recent years. The four largest contributors to the total number …

Scotland – Minimum unit pricing – update

Posted: 09 Jun 2016 05:30 AM PDT

Further to our previous news on this subject Scotland – Minimum Unit Pricing European Ruling, the Court of Session is Scotland is considering this week the legal challenge to the Scottish Government’s plan for a minimum alcohol price. Judges at the Court of Session in Edinburgh are hearing further evidence after seeking the opinion of the European Court of Justice (ECJ) in Luxembourg on …

BBPA releases 2016 tenant/lessee benchmarking data

Posted: 08 Jun 2016 05:00 AM PDT

The BBPA has today released its updated 2016 cost guide for tenants and lessees. The information provided is intended to help those wishing to take on a tenanted or leased pub business to be as well informed as possible about the costs involved in running a pub, and the guide can provides valuable data for tenants and lessees on typical operating costs in the tied pub sector. The guide also gi…

Scotland – Edinburgh Board dates 2016

Posted: 07 Jun 2016 09:00 AM PDT

It has just been confirmed that the last lodging dates for the upcoming Edinburgh Licensing Boards are as follows: Board Dates Lodging Date 29th August 2016 4th July 2016 26th September 2016 1st August 2016 31st October 2016 5th September 2016 28th November 2016 3rd October 2016 19th December 2016 31st October 2016 …

Scotland – Glasgow Licensing Board dates – August 2016 onwards

Posted: 07 Jun 2016 08:00 AM PDT

The Glasgow Board has just announced the dates for their meetings after the 2016 summer recess as follows: Friday 19 August 2016 Friday 16 September 2016 Friday 14 October 2016 Friday 18 November 2016 Friday 16 December 2016 Friday 20 January 2017 Friday 17 February 2017 Friday 17 March 2017 Friday 21 April 2017 Friday 23 June 2017

Nightclub criticised after student rape

Posted: 07 Jun 2016 05:00 AM PDT

A nightclub has been criticised by a Judge after an allegedly drunk student was ejected from the premises before being subsequently abducted and raped in the back of a van. The nightclub removed the teenager after she collapsed in the Birmingham city centre venue. She was lured into a van and driven to an industrial estate where she was raped and sexually assaulted. The comments follow convict…

Scotland – Under-aged test purchasing challenges?

Posted: 06 Jun 2016 08:00 AM PDT

Tim Shield attended the Scottish Licensing Law and Practice (SLLP) conference held in Glasgow last Friday. This is always an informative conference and as usual there was a wide range of speakers from differing backgrounds which included Alison Douglas, Chief Executive of Alcohol Focus Scotland, through various licensing lawyers to Mo Razzaq, an independent retailer who also sits on his Licensi…

Immigration Act 2016 – and its implications for licensing

Posted: 06 Jun 2016 06:00 AM PDT

The Immigration Bill received Royal Assent in May and so became the Immigration Act 2016. There are numerous notable sections affecting licensing with the Home Office confirming likely implementation for these in Spring 2017. Changes to the Licensing Act 2003 Licensing elements are contained in Schedule 4 and the principal points of note include the following. Premises Licence appli…

Pyschoactive Substances Act – Guidance

Posted: 03 Jun 2016 08:00 AM PDT

Further to our recent news confirming that this Act is now in force, guidance on the Act for councils has now been produced by the Local Government Association. The Act introduced a blanket ban on the production and distribution of psychoactive substances, defined as any substance which is capable of producing a psychoactive effect in a person who consumes it (and which is not an exempted subs…

New £5 note announced

Posted: 03 Jun 2016 03:00 AM PDT

The Bank of England has announced that a new polymer £5 note will be issued on 13 September 2016 (it is already in production) and has released details of the design and security features of the new note. A dedicated Bank of England website has been set up to provide further detail: http://www.thenewfiver.co.uk/ In May 2017 the existing paper £5 notes will cease to be legal t…

Gambling – Consultation on digital advertising

Posted: 01 Jun 2016 03:30 AM PDT

On the 9th May the Gambling Commission launched a consultation on the proposed wording of a new licence condition entitled Placing digital adverts responsibly. It is intended that the final condition(s), which deals with the placing of digital advertisements by Operators and/or Operators who have advertisements placed by third parties (including affiliates) will be included…

Costs recovery – ‘Hemmings’ in the European Court of Justice

Posted: 01 Jun 2016 03:00 AM PDT

The long running case of Hemmings which concerns the ability of Licensing (and other) Authorities to recover enforcement costs reaches the European Court of Justice (ECJ) today although judgment is not expected until later in the year. For the background and the recent decision of the Supreme Court which referred the matter to the ECJ, see our article ”Hemmings’ Loses – Supreme Court …

Gambling – Test Purchase Warning

Warnings have been issued of further test purchase operations by the Gambling Commission concerning gaming machines in licensed venues.

Gambling – Commission publish new rules on to tackle crime linked to gambling

The Gambling Commission has today announced new requirements to “prevent crime associated with gambling”. The new requirements are due to come into force later this year.

And finally…

Reflections on the 2016 Interbrewery Regatta!

What a weekend; what an experience! 17 boats locked in competitive combat over 5 races (it should have been 6 or 7 but light winds on Sunday put paid to that).

MROAS latest update on MRO legislation

MROAS

MROAS latest update on MRO legislation

Members Hot off the press, the minister Anna Soubry has revealed a little more detail today when she answered questions tabled by Greg Mulholland MP, this comes after very sustained pressure from all tenant groups in getting more information from her office, a month has passed with very little emerging from the BIS.

What we now know is of comfort (see below) – they have not changed anything substantial the part 6 changes she mentions are likely to be we now understand timetabling issues – i.e. you have 21 days or 28 days to get contact after sending a notice to your pubco etc – Regards MROAS Team

The Department for Business, Innovation and Skills has provided the following answer to your written parliamentary question (38474):

Question: The answer was submitted on 09 Jun 2016 at 15:32. To ask the Secretary of State for Business, Innovation and Skills, whether lease renewal and rent review will remain trigger points for the market rent only option procedure, as set out in Part 6 of the withdrawn Pubs Code etc. Regulations 2016. (38474) Tabled on: 25 May 2016

Answer: Anna Soubry: Yes. Lease renewal and rent review will remain trigger points for the ‘Market Rent Only’ option procedure in the revised regulations.

The Department for Business, Innovation and Skills has provided the following answer to your written parliamentary question (38473):

Question: To ask the Secretary of State for Business, Innovation and Skills, whether he plans to make changes to the procedure of the market rent only option once triggered, as planned in Part 6 of the withdrawn Pubs Code etc. Regulations 2016. (38473) Tabled on: 25 May 2016

Answer: Anna Soubry: No. The Government does not plan to make any material changes to the procedure of the ‘Market Rent Only’ option, once triggered, in the revised regulations. Some technical drafting improvements have been made to Part 6. The Department for Business, Innovation and Skills has provided the following answer to your written parliamentary question (38472):

Question: To ask the Secretary of State for Business, Innovation and Skills, when he plans to lay the revised statutory instruments for the Pubs Code etc. Regulations 2016 and Pubs Code (Fees, Costs and Financial Penalties) Regulations 2016 before the House. (38472) Tabled on: 25 May 2016

Answer: Anna Soubry: The Government is working hard to bring the Pubs Code etc Regulations 2016 into force as soon as possible. We have drafted the necessary technical corrections, and will lay a revised draft as soon as possible. The Code will come in to force following Parliamentary scrutiny. The Pubs Code (Fees, Costs and Financial Penalties) Regulations 2016 will be laid at the same time.

M&C June Newsletter, MRO, Caveat Emptor and Latest on Leases.

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M&C June Newsletter, MRO, Caveat Emptor and Latest on Leases.

We are still all waiting with baited breath on the final pronouncement of the Statutory Pubs Code that is now well past the specific date set by Parliament for publication, namely 26th May 2016. Whilst it is appreciated that Government have every desire to ensure that the wording is not capable of misinterpretation, it is greatly to be regretted that the stated deadline has not been achieved. We have a number of clients who have rent reviews during the month of June which would make it all the more emotional if the start date for MRO – Option was pushed forwards by, say an extra month.

It seems to us that the Pubcos have missed a huge opportunity for positive PR. They could so easily have confirmed that they would honour the start date being 26th May 2016, notwithstanding that the finalisation of the legislation has been delayed. Not that many properties are affected, but the positive PR of being seen to be the good guys, would have been tremendous.

We have undertaken a sample survey of our very many clients who are facing either rent reviews or lease renewals during 2016 or early 2017, to gauge their interest in taking up MRO. Whilst there is concern over the future rent levels free-of-supply tie, one of the strongest motives that were expressed was the ability to get rid of the ministrations of the BRM or Regional Manager and be able to get on with running their affairs without corporate interference. The law of unintended consequences is indeed coming full circle, with nobody that we contacted showing any enthusiasm for staying supply-tied. This seems to have been overlooked by the majority of financial analysts. Wonder why?

This final point is quite remarkable in that we have lost count of the number of times that it has been hinted that there are massive benefits for staying supply-tied (low cost entry, SCORFA, expert advice and help, etc.) – none of which seems to have been translated into a positive message to support the continuing supply-tie provisions of either the Pubcos or the major brewery companies with over 500 units in their estate.

 

  1. Industry Framework Code [“IFC”]

Although the fine print of the Statutory Pubs Code has not yet been issued, it is quite probable that the Industry Framework Code will still only be applicable to supply-tied leases/tenancies. That being the case, it seems a little curious that Sir Peter Luff of the PGB, recently declared that he was minded to draw up a version 7 of the IFC in order that brewers and Pubcos with under 500 units, could voluntarily support the new Code. Whilst it is accepted that smaller Pubcos are not necessarily members of the BBPA who automatically support the IFC, making the Code voluntary is almost meaningless on the grounds that if you are going to paddle your own canoe in a manner that is not compliant with the IFC, then you are hardly going to pay voluntary lip service to that very Code.

  1. Consumer Protection

Not many people have woken up to a recent practice guide by the Law Society that has firmly suggested that consumer protection laws should apply to a substantial number of property transactions by imposing on the solicitors concerned, a direct requirement to disclose defects with a property. The old rule of ‘buyer beware’ or ‘caveat emptor’ which was used time and again to overlook defects, now seems to be open to serious question. Previously, it was up to the buyer to make proper enquiries and inspect as they have always been deemed to take the property as seen. The law concerned is the ‘Consumer Protection (Amendment) Regulations 2014’. This created a number of private law remedies where there are specific breaches of the Consumer Protection from Unfair Trading Regulations 2008

The new Law Society Practice Guide, amongst other things, focuses on incorrect replies to enquiries that could lead to a claim. This representation concerns not only an out-and-out incorrect answer, but also the shading of a reply to give an overly positive impression of the circumstances of a property

For example, if the brewery company or Pubco does not confirm that it has full knowledge of serious, latent structural concerns and did not declare them, the fact that the new lessee did not undertake their own schedule of condition (incidentally always recommended), and the fact that the latent structural error was not declared, is now not a caveat emptor defence.

The other area of key concern of the 2008/2014 regulations, was in respect of commercial practice. Any act or omission by a trader (in this instance either a Pubco or brewery company), which is directly connected with a promotion, sale or supply of a product, whether occurring before or after a commercial transaction which is set out in the 2008 Regulation 2(1) would now not rely on the doctrine of caveat emptor. For example, if a small pubco, not directly concerned with the Industry Framework Code ‘forgets’ to confirm the recent unsuccessful trading history of the pub concerned, then the solicitors involved in the transaction for the freeholder, cannot now neatly bat away an enquiry concerning trading history as ‘private to the previous lessee’ if there is barrelage supply knowledge that all was not well.

 

The Law Society’s new Practice Guide, links a solicitor to the ‘trader’ to include not only a person acting for the purposes of the person’s business, but someone “acting in the name or on behalf of” such a party. A solicitor certainly will act ‘on behalf of’ a client freeholder and will be dealing with a consumer and the consumer’s legal representative on the other side. Thus a trader-consumer relationship is caught by the regulations and the vendor’s solicitor will be caught by owing a direct obligation to the consumer

The Law Society’s latest regulations are a timely reminder to solicitors that it is just not safe to issue rose-tinted replies to enquiries where the facts are known to the freeholder or their solicitors. The guidance carries the specific implication that the solicitor’s professional standing on fair dealing and good practice, certainly require the disclosure of all material information, however damaging to their clients. Beyond doubt, the vendor’s reliance on caveat emptor is now dead in the water.

  1. PIRRS v Arbitration

We continue to use and promote the PIRRS’ system, more than anything on a cost-efficient basis. Following an appointment by the Dispute Resolution Service of the RICS, the nominated Independent Expert who is also one of the PIRRS’ valuers (who has recently acted on a case instigated by this office and who is based in Central London), has a minimum hourly fee charge rate of £350 plus VAT. This should be compared with the fixed fees for PIRRS which, in general equated time, works out as less than £175 an hour. We rest our case!

A recent PIRRS’ decision in South Devon, once again justified our continuing involvement in PIRRS. No names, of course, but the figures speak for themselves. Current rent nearly £43,000, pubco wanted £53,450, PIRRS result £38,000 and to quote from our client:

“thank you for giving us the good news. An excellent result. Some vindication in view of *** *** smugness. Once again, thank you for the help and support through this trying time, if any of your future clients need a word of encouragement not to give in, do not hesitate to contact me. Thanks again”.

  1. Cask Ale

We have always liked Nicholson’s Pubs which are a branch of Mitchells & Butlers Pub Company with generally traditional outlets dotted in and around London. A recent survey by Nicholson’s found that cask ales were seriously on the rise, with a new growing category of cask ale drinkers being female with a sizeable proportion of ale drinkers looking for a more interesting tipple. Traditional amber beers accounted for half of the cask sales, with bitters and darker ales showing a marked rise in popularity. Not that it seems to be specifically happening in Nicholson’s pubs (of which we think there are about 80), but some Central London pubs are almost on the verge of ‘killing the goose that lays the golden egg’, charging well over a fiver a pint for so-called super premium beers. OK, so they may be ‘reassuring expensive’ as you may remember from the original Stella Artois strapline, but at some stage, volume throughput through price resistance, will mean that the beer is not as fresh as it should be and the popularity will suddenly decline. The old adage of ‘the quicker it sells, the better the beer’, still holds true

  1. Enterprise Inns’ Managed Estate

It was noted that Enterprise Inns has now added a fourth ‘managed expert’ partnership to its portfolio in the shape of Oakman Inns & Restaurants under the joint partnership name of ‘Hunky Dory Pubs’. It would seem that Oakman have 15x pubs across the Midlands and South East, with the strong likelihood that the managed expert portfolio under their control, will be between the Midlands and London. As noted in previous Newsletters, the Enterprise Inns’ managed expert estate, now has 4x pubs, all operated under the ‘Hippo Inns’ brand which was its first managed partnership agreement with Rupert Cleverly who you may remember was the founder of Geronimo Inns.

The ease with which the managed expert format will be rolled out nationwide, is quite another matter and gives rise for concern in the geographical extremities of their estate. We are still hearing reports of ‘well, we can always take it back as a managed house’ which effectively is what was confirmed in a recent hostile Section 25 Notice in quite a remarkably small and low-trading pub.

  1. Alterations without Consent

If you are a tenant, the last thing you generally do is to keep referring to the wording of your lease. We have had several examples recently where the non-estate, management trained retail staff have actively encouraged quite substantial structural alterations which have then gained planning consent and have been seen through to successful fruition at the expense of the tenant. Rent review time comes around and it is only when the standard rent review disregards are pointed out to the tenant, that the realisation hits like a hammer blow, that there is no formal consent. Whilst it is agreed this is an error of the tenant, the landlord’s lack of proper estate management is also just as much to blame. The retail field staff must surely know that every single lease carries the obligation for formal consent in advance for works of a structural nature being undertaken by the tenant at the tenant’s expense. Time and time again, however, the retail field staff forget to remind the tenant of this simple but specific obligation.

Yes, you are quite entitled to seek a retrospective Licence of Alteration, but the application for same can seriously gum up the works if a rent review or lease renewal is firmly in sight and even being contested. The point is that if you have undertaken structural works at your expense with full and tacit knowledge and consent from you pubco or brewery retail field staff, but do not have the requisite formal consent – start to put matters right well before rent review or lease renewal. You have been politely warned.

  1. And Finally
  • Bumper sticker seen on the back of a tow truck in Texas – “Drink and drive! We need the business!”.
  • Man goes into a bar where a border terrier is sitting in a chair playing poker. He asks “is that dog really playing poker?” and the barman says: “Yeah, but he’s not very good. Whenever he has a good hand, he starts wagging hi

Best Wishes from the Team at M & C

Email: info@morganandclarke.co.uk

Phone: 01285 719292