|
CARDIFF COUNCIL
LICENSING ENFORCEMENT POLICY
7th APRIL 2005
LICENSING ENFORCEMENT POLICY
INTRODUCTION
Cardiff Council is committed to protecting its citizens and visitors to the city through
the implementation of the statutory systems of licensing and does this in a number of
ways including:
•
establishing appropriate policies
•
providing advice and guidance;
•
establishing appropriate licence conditions;
•
carrying out inspections;
•
consulting with other agencies;
•
assessing suitability and fitness;
•
determining applications for licences;
•
undertaking monitoring;
•
responding to complaints;
•
initiating appropriate disciplinary action;
•
initiating legal intervention where necessary;
•
refusing, revoking, suspending or varying licences.
The service aims to enforce the law by carrying out its regulatory functions, including
the implementation of enforcement actions in a consistent and transparent manner.
Many licensed activities take place outside normal office hours and the service will
monitor activity at these times while the operation is taking place.
In carrying out its statutory functions the service consults and liaises widely with
internal and external agencies including South Wales Police, South Wales Fire
Brigade, Trade Organisations, local residents associations, LACORS (Local Authority
Co-ordinators of Regulatory Services), the SIA (Security Industry Authority) and
other local authorities.
This statement sets out the current approach to enforcement by the Licensing Service
of Regulatory Services, Cardiff County Council. The approach is based upon the
principles of good enforcement, as detailed by the Enforcement Concordat; a central
and local government guide to enforcement functions. Regard is also taken to the
Council’s corporate enforcement policy, The Regulatory Services Business Plan and
Section 182 guidance and the Authorities Statement of Licensing Policy for alcohol,
entertainment and late night refreshment licensing.
Areas of Responsibility
Many pieces of legislation require the implementation of systems of licensing and the
service has responsibilities to determine and enforce many licensing regimes. The
licensing authority has the responsibility for determining applications for licences,
permits and registrations as detailed in the following table.
Alcohol, Public
Entertainment
and Late Night
Refreshment
Sale and Supply of all alcohol, whether for consumption on or off
the premises
Public Entertainment involving Music, Singing and Dancing,
Indoor Sports, Cinemas, Theatres; and
Late Night Refreshment Houses,
Performances of Hypnotism.
Animal Health
and Welfare
Animal Boarding Establishments, Dangerous Wild Animals, Dog
Breeding Establishments, Pet Shops, Riding Establishments,
Game Dealers.
Charitable
Collections
House to House and Street Collections.
Gaming Amusement Arcades, Small Lotteries, Amusement with Prize
Machines, Track Betting.
Street Trading Designation of places for street trading. Street Trading Licences
and Consents.
Hackney
Carriage and
Private Hire
Vehicles
Hackney Carriage and Private Hire drivers, proprietors and
operators.
Miscellaneous Premises where acupuncture, ear piercing, electrolysis and
tattooing services are provided, Sex Establishments, Justice
Applications, Scrap Metal Dealers.
In some areas there is potential for a shared enforcement role with agencies such as
the South Wales Police Force, South Wales Fire Service, Vehicle Inspectorate and
other council agencies. Wherever such issues arise the licensing service has put in
place liaison arrangements to ensure the law is administered effectively and efficiently
and that joint enforcement action complies with the principles outlined in this policy.
Purpose and Methods of Enforcement
We will take care to help individuals and organisations comply with their legal
obligations without unnecessary expense, while taking firm enforcement action,
including prosecution and licence revocation where appropriate against those who
flout the law or act irresponsibly. Included in the term 'enforcement' are advisory
visits, routine inspections and assisting with compliance as well as formal
enforcement action. Powers available to officers include:
•
Verbal advice;
•
Visits and routine inspections;
•
Warning letters;
•
Enforcement notices;
•
Suspension of licence;
•
Instigation of prosecution or caution where a criminal offence has been
committed;
•
Recommendation of revocation, variation or refusal of a licence.
ENFORCING THE LAW
Regulatory Services believes in firm but fair regulation, and its enforcement activities
follow these essential principles:
•
Openness about how we operate and what the regulated may expect;
•
Consistency of approach;
•
Targeting of enforcement action;
•
Proportionality in applying the law and securing compliance;
•
Accountability of our service and actions.
OPENNESS
Openness means helping individuals and businesses to understand what we
expect of them and what they should expect from us.
It also means making clear why an officer intends to, or has taken enforcement action.
This means distinguishing between statutory requirements and good practice.
Individuals and organisations need to know what to expect from enforcing authorities
and their procedures with regard to regulation. We will ensure that, wherever
possible:
•
where action is required, it is clearly explained (in writing, wherever possible)
why the action is necessary together with a suitable timescale; distinction
being made between good practice and what is legally required;
•
General issues are discussed on what is required by law before enforcement
action is taken, unless urgent action is required to protect service users or
prevent evidence being destroyed;
•
where urgent action is required, a written explanation of the reasons is;
provided as soon as practicable after the event.
CONSISTENCY
Consistency of approach does not mean uniformity. It means taking a similar
approach in similar circumstances to achieve similar ends.
Individuals and organisations have the right to expect consistency in the advice given,
use of enforcement powers, decisions to prosecute and the use of disciplinary
procedures. Officers need to take into account many variables including the scale of
impact on public safety, the effect of any non-compliance on others, the attitude and
competency of the offender and history of previous incidents. Decisions on
enforcement action are a matter of professional judgement and the officer must
exercise both consistency and discretion, including effective arrangements for liaison
with other enforcement authorities. Where any doubt arises, discussions will be held
with senior officers to agree the necessary course of action and to ensure a consistent
approach. In addition enforcement activities will be undertaken in accordance with the
Council’s Equal Opportunities Policy.
TARGETING
Targeting means making sure that, whilst all request for service are responded
to, regulatory effort is directed primarily towards those whose activities actually
or potentially give rise to the most serious risks to public safety.
We will take into account the hazards associated with each activity requiring a licence
and the nature and extent of the risks involved to the health and safety of the public.
The licensing service will prioritise enforcement activity according to the risks posed
by the type and scale of the operation.
PROPORTIONALITY
Proportionality means relating enforcement action to the risks posed. Any action
taken by officers to achieve compliance will be proportionate to the seriousness
of any breach, whilst upholding current legislation.
Some incidents or breaches of regulatory requirements may put the safety of service
users at serious risk. The enforcement action taken will be proportionate to the risks
posed and the seriousness of any breach of the law or licensing requirement.
Consideration will also be paid to The Code for Crown Prosecutors 2000 when
considering the instigation of legal proceedings, and advice taken from the Chief
Legal Services Officer.
ACCOUNTABILITY
Should there be elements of dissatisfaction with the level of service or inspection
carried out, we would welcome constructive criticism about what could be
improved.
Our complaints procedure is well publicised (and appears on the Internet) making it
easily accessible to business, the public, employees and consumer groups. All
complaints are viewed as learning opportunities and are NOT used as a reason to
penalise any of the parties involved, unless there has been evidence of misconduct. In
cases where disputes cannot be resolved following formal enforcement action, the
right of appeal will be explained, and appropriate time scale outlined. Information
about the Local Government Ombudsman will be provided where agreement cannot
be reached.
TAKING REMEDIAL ACTION
The Licensing Service seeks to secure compliance with the law in a variety of ways.
Most of the dealings we have with individuals and businesses are informal, providing
advice and assistance over the telephone, during visits and in writing. However, where
informal methods have been unsuccessful, or a serious breach of a licensing condition
or regulation is likely to occur which may endanger the safety of the public, formal
enforcement mechanisms will be taken to ensure compliance with the law.
Such action may involve:
•
providing written requirements with reasons;
•
the service of Statutory Notices on licence holders;
•
issue of informal warning advising of the consequences of future noncompliance
•
requiring reports from professional experts;
•
imposition of penalty points;
•
legal proceedings in the courts;
•
suspension of a licence;
•
refusal, revocation or variation of a licence.
Legal or disciplinary proceedings will be instigated against individuals or
organisations where any breach of licensing legislation has occurred and is an
important part of the enforcement process. It aims to punish those who flout the law,
to serve as a deterrent and to set an example to others that breach of legislation is
punishable. In severe circumstances, prosecution without prior warning and licence
revocation will be pursued.
A decision on enforcement action will be taken on its own merits and after full
consideration of the implications and consequences of the action. While fair and
effective enforcement is essential to the maintenance of law and order, an alleged
breach of criminal law does not necessarily result in action. There must be sufficient,
admissible and reliable evidence that an offence has been committed and that there is
a realistic prospect of conviction. Evidence must be useful and reliable. If the case
does pass the evidential test, the second stage is whether the action is needed in the
public interest. These factors will usually depend on the seriousness of the offence or
the circumstances of the offender. Some factors may suggest that another course of
action may be more appropriate, such as issuing a formal caution rather than pursuing
a prosecution or revoking a licence. Generally, however, the more serious the offence,
the more likely it is that a prosecution or disciplinary action will be needed in the
public interest. Each case is unique and is considered on its own merits.
PROSECUTION
Prosecution of offenders will be considered where a person has failed to obtain a
necessary licence, permit or registration or where any breach of licensing legislation is
identified. Instigation of a prosecution will have regard to the Licensing Services
legal proceedings procedure, advice from the Chief Legal Services Officer and The
Code for Crown Prosecutors 2004. In particular, where there is sufficient evidence,
the decision to prosecute will also include a consideration of the following:
•
the potential of serious consequences for licence service users;
•
the potential for harm to community confidence in the licensing regime;
•
the position of authority and trust of the licence holder;
•
that the person was a ring leader or an organiser of the offence;
•
that the offence was premeditated;
•
persistent breaches of regulatory requirements, including possible previous
convictions and response to previous advice and the likelihood of a recurrence;
•
if the offence, although not serious in itself, is widespread in the area where it
was committed;
•
mitigating circumstances or explanations offered for the offence;
•
any financial advantage for the perpetrator from the commission of the
offence;
•
number of people affected by the offence, any circumstances causing public
concern, and any views expressed by victims;
•
the possibility of a ‘reasonable excuse’ defence being successfully used by an
organisation, where appropriate;
•
whether the victim is a vulnerable member of society; and
•
whether the conviction is likely to result in a significant sentence.
Any recommendation to the Chief Regulatory Services Officer to instigate legal
proceedings must be authorised by the relevant senior officer.
ALTERNATIVES TO PROSECUTION
In cases where prosecution is not the most appropriate course of action, the
alternatives of an informal written warning or a formal caution will be considered. A
formal caution is the written acceptance by an offender that they have committed an
offence and may only be used where a prosecution may have been instigated. It will
only be brought to the Court’s attention if the offender is convicted of a subsequent
offence.
LICENCE SUSPENSION
In circumstances that give rise to an immediate public danger or where the
continuation of a licence would be likely to bring the licensing system into public
disrepute the immediate suspension of a licence may be justified.
DISCIPLINARY HEARINGS
Where licence holders have:
•
been convicted of a relevant offence;
•
refused to comply with a condition of the licence;
•
behaved in a way which may render that person as unsuitable to hold a
licence; or
•
behaved in a way which is likely to have put the public at risk
the offender will be reported to a Committee of the Council or a Disciplinary Panel
which will consider the case and in appropriate circumstances impose penalty points.
Where ten penalty points are awarded in any three-year period the licence, permit or
registration may be revoked. In the case of more serious offences the committee may
feel that the immediate revocation, suspension or variation of a licence may be the
most appropriate course of action. Where offenders are reported to a Committee for
consideration of disciplinary action we will:
•
give sufficient notice of the date the matter is to be considered;
•
give notice to the licence holder of the charges against them;
•
provide the opportunity for the licence holder to be represented;
•
provide the licence holder with the opportunity to present their case and
provide supporting evidence;
•
ensure the matter is determined in an impartial manner in accordance with the
rules of natural justice;
•
provide written notice of the decision with reasons.
APPEALS
Where there is right of appeal against formal action, advice on appeal mechanisms
will be clearly set out in writing at the time the matter is determined or the action
taken.
Reviewed: 7th April 2005 Date of Next Review 7th April 2008.
|
Login
Register
FAQ
