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Sex Establishment

Policy

Draft
March 2010

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Contents

Introduction
The Law
Transitional Arrangements
Human Rights
Sex Establishments Licence Applications
Applicants
Duration of Licence
Application Detail
Fitness of Applicant
Impact of the Sex Establishment
The location of the premises
Consultation
Legal requirement
Public Notification
Responsible Authorities & Agencies
Ward Councillors
The Hearing
Decision
Grant
Discretionary Refusal
Mandatory Refusal
Appeals
Enforcement
Definitions

Appendix

A. Standard Conditions Applicable to licences for sex establishments and


sex entertainment venues.

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Introduction
This document states the London Borough of Lewisham’s (The Council) policy
on the regulation of Sex Establishments (as defined in Appendix A) and the
application procedure. It will guide the Council when considering applications
for licences, bearing in mind the spirit and intent of the Act and case law
decided since it was passed. The Council will take all relevant factors into
consideration in determining an application and will follow the policy flexibly
when appropriate. Each case will be decided on it own merits.

The Law
The Local Government (Miscellaneous Provisions) Act 1982 introduced a
licensing regime to control Sex Establishments. The Council adopted
Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982
(The Act) on 10th November 1982 and as amended by section 27 of the
Policing and Crime Act 2009. This means that the Council can control and
regulate certain kinds of Sex Establishment within its Borough including
sexual entertainment venues. No Sex Establishment can operate unless it has
obtained a licence from the Council. Any such licence will contain conditions
that will dictate how the premises may operate.

Under Section 17 of the Crime and Disorder Act 1998, local authorities must
have regard to the prevention of crime and disorder in their Borough. This
policy has regard to the likely impact of such licences on related crime and
disorder in the Borough.

Transitional Arrangements
The amendment contained in section 27 of the Policing and Crime Act 2009
refers to premises currently operating as what is defined as sexual
entertainment venues. These premises need to apply under this legislation to
be able to continue to operate.

The transitional period will last for 12 months starting on the 6th April 2010 (1st
appointed day). Six months after the 1st appointed day will be known as the
2nd appointed day. Between the 1st appointed day and the 2nd appointed day
applicants will be able to submit applications to be considered by the local
authority. At the end of this period, local authorities will consider all
applications received during this period together and will not grant any
licences until all the applications have been considered. Applications received
after the 2nd appointed day would be considered individually.

Licences granted to new applicants would take effect immediately while


licences granted to existing operators would take effect on the 3rd appointed
day, which would be 6 months after the 2nd appointed day, or, if longer, when
their application is determined. Existing operators who do not apply for or are
not granted a sex establishment licence would be able to provide relevant
entertainment under the terms of their premises licence or club premises
certificate (Licensing Act 2003) until the 3rd appointed day.

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Human Rights
In determining applications, the principles of the Human Rights Act 1998 must
be taken into consideration. The Act acknowledges that local authorities are
entitled, amongst other things, to act where this is the general interest. Should
it be decided to refuse an application, or to attach conditions, the rights of
appeal that exist through the Magistrates’ Court will ensure that the principles
of the Human Rights Act are adhered to.

The Human Rights Act 1998 incorporates the European Convention on


Human Rights and makes it unlawful for a local authority to act in a way which
is incompatible with a Convention right.

Disability Discrimination
The Disability Discrimination Act 2005 Introduced measures to tackle
discrimination encountered by disabled people in the areas of employment,
access to goods, facilities and services and the management, buying or
renting of land or property. For service providers, such as licensees:

a) since December 1996 it has been unlawful to treat disabled people less
favourably than other people for a reason related to their disability.
b) since October 1999 they have had to make reasonable adjustments for
disabled people, such as providing extra help to make changes to the
way they provide their service
c) since 2004 they have had to make reasonable adjustments to the
physical features of the premises to overcome physical barriers to
access.

This policy will have regard to the likely impact of licensing of sex
establishments on disability discrimination particularly when considering the
operation and management of the premises.

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Sex Establishment Licence Applications

Applicants
Individuals, limited companies and firms may apply for a licence. A licence
must be obtained if they are proposing to use any premises, vehicle, vessel or
stall as a sex establishment

Duration of Licence
Licences will generally be issued on an annual basis but can be issued for a
shorter term if deemed appropriate.

Application Detail
The applicant will be required to make their application in accordance with
Clause 10, Schedule 3, of the Act

Fitness of Applicant
An applicant must be a fit and proper person to hold a licence. In determining
suitability for a new licence, transfer or renewal of an existing licence, the
Council will consider the following information:

a) Previous relevant knowledge and experience of the applicant


b) Any evidence of the operation of any existing or previous
licence(s) held by the applicant including any licence held in any other
District or Borough.
c) Any report about the applicant and management of the premises
received from statutory objectors.
d) Unspent relevant convictions

Whilst every application will be considered on its merits the Council will be
unlikely to grant an application from any person, or for the benefit of any
person, with unspent relevant convictions.

Impact of the Sex Establishment


In considering applications for the grant of new licenses or variation of
conditions, the Council will assess the likelihood of such a grant causing
adverse impacts, particularly to local residents. The Council will take the
following general matters into consideration:

a) Type of activity
b) Duration of proposed licence
c) Proposed hours of operation
d) Layout and condition of premises
e) The use to which Premises in the vicinity are used
f) The character of the locality in which the premises are situated

In considering all applications for the grant of new licenses or applications for
variation of conditions the Council will take into account the potential impacts
of the application on:

a) Crime and Disorder

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b) Cumulative impact of licensed premises in the area, including hours of
operation
c) The character of the locality in which the premises is situated

In considering all applications for renewal of a Sex Establishment licence the


Council will take into account:

a) Levels of related recorded crime and disorder in existing or proposed


area of the Sex Establishment
b) Past demonstrable adverse impact from the licensed activity
c) Whether appropriate measures have been agreed and put into effect
by the applicant to mitigate any adverse related impacts

The Location of Premises


In accordance with relevant case law, the Council shall decide on the
suitability of a particular locality for a Sex Establishment as a matter of fact to
be determined by the particular circumstances of each case and not by the
prescribed boundaries as stated on a map

The Council is mindful of its power to determine that no Sex Establishment


should be located in a particular locality

Notwithstanding the above, licenses will only be granted in predominately


commercial areas and the Council is mindful of its power to determine each
application on its own merits. Applications will not normally be granted if they
are to be within

a) areas that are exclusively, or predominantly residential in character or


b) the vicinity of residential properties or
c) 200m of a school or any other premises used by children or vulnerable
adults or
d) A publicly accessible open space that is regularly frequented by
children or vulnerable adults
e) 200m of a place of worship
f) Areas with a level of recorded crime that give the police cause for
concern
g) Areas that are likely to be adversely affected due to the Cumulative
impact of existing Sex Establishments
h) 200m of an existing Sex Establishment

It is the Council’s view that the ‘need’ for this type of premises in an area is a
matter of the commercial demand and should be considered a decision for the
operator, whereas cumulative impact of licensed sex establishments on the
locality and it residents is a proper matter for the Council to consider.

Consultation

Legal Requirement
Applicants are legally required to give public notice of the application by
publishing an advertisement in the legal section of a local newspaper

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circulating in the area where the premises are situated and to display a similar
notice on or near the premises for 21 days beginning with the date of the
application. Furthermore, the applicant will serve a copy of the application on
the Chief Officer of Police (Lewisham Borough Metropolitan Police Service).

Public Notification
The Council will consult local residents in relation to applications for grant,
renewal or variation of the terms or conditions of a licence. The nature and
extent of the consultation will depend on the history of a particular premises
and the perceived likelihood of problems occurring and objections being
received. The Council may inform every domestic dwelling and commercial
unit within a 50 metre radius of the premises and may extend this area if it
decides it is appropriate considering all circumstances to do so.

Responsible Authorities and agencies


The Council will consult with all relevant authorities to ensure that all
appropriate information is available when considering an application. For the
purposes of this act the Council views the ‘Responsible Authorities’ as
comprising of:

London Fire & Emergency Planning Authority (LFEPA)


Metropolitan Police Service Lewisham Borough (MPS)
London Borough Lewisham Planning Department
London Borough Lewisham Health & Safety Team

The Council will consult any other organisation or agency it deems relevant to
a particular application

Ward Councillors
Relevant ward councillors will be notified in writing of all applications for grant,
renewals and transfer of licenses and the variation of conditions within their
ward, also those on or near the ward boundary

Consideration
In considering any application for the grant, renewal or transfer of a licence
the Council is obliged to have regard to any observations submitted by the
MPS and any objections received from members of the public, within a 28 day
consultation period.

The Council recognises that Sex Establishment Licensing is controversial and


generates very emotive arguments. However, the Council does not have the
right to, and will not have regard to the morality of sex establishments. Its
approval or disapproval of sex establishments is not a matter which can be
considered. Consequently, straightforward objections on the grounds that ‘sex
establishments should not be allowed on moral grounds’ will not be
considered regarding any sex establishment applications.

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The Hearing
All opposed applications for new Sex Establishments Licences and renewals
will be referred to the Licensing Supplementary Committee for determination.
The hearing will be held in public.

Individuals or responsible authorities will only be afforded a hearing if the


Licensing Authority are satisfied that:

a) A relevant written objection was received before the end of the 28 day
consultation period
b) The objector can be confined to putting forward only those points that
are relevant to consideration of the grounds of refusal and which have
been notified in writing to the applicant

Decision
The Committee after due consideration may decide to:

Grant the licence


Under the provisions in Schedule 3 of the LGMPA (as amended by virtue of
Section 27 of the Policing and Crime Act 2009), the licensing authority, may
grant a licence on such terms and conditions and subject to such restrictions
as it may specify. Conditions may be imposed for example to control:

a) the external appearance of the premises


b) the operating hours of the business
c) the visibility of the establishment to passers by
d) displays or advertisements on or in such establishments
e) CCTV provision
f) The employment of suitable management and staff

A set of standard conditions has been agreed by the Council that will be
imposed as a matter of practice on all Sex Establishment Licenses unless the
applicant specifically applies and the Council agrees to delete or amend any
or all of them. In the event of a conflict between standard conditions and
special conditions on a licence the special conditions shall prevail.

Discretionary Refusal – the Council may refuse to grant a licence on one or


more of the following grounds:
a) that the applicant is unsuitable to hold the licence by reason of having
been convicted of an offence or for any other reason
b) that if the licence were to be granted the business to which it relates
would be managed by or carried on for the benefit of a person, other
than the applicant, who would be refused the grant of the licence if
applied for by that individual
c) that the number of sex establishments in the relevant locality at the
time the application is made is equal to or exceeds the number which
the authority consider is appropriate for that locality (the number may
be nil)
d) that the grant of the licence would be inappropriate, having regard to
(i) the character of the locality where the premises are situated

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(ii) the use to which any premises in the vicinity are put
(iii) the layout, character or condition of the premises in respect
of which the application is made

Refuse the Licence


Mandatory Refusal – Under the provisions in Schedule 3 of the LGMPA, the
Council must refuse a licence for the following reasons, this would be
determined under delegated authority and not referred to committee.

a) to a person under 18
b) to a person who is disqualified by virtue of the revocation of a previous
licence in the area within the preceding 12 months: or
c) to a person who has not been resident in the UK for the preceding six
months or
d) to a body corporate which is not incorporated in the UK
e) to a person who has been refused an application for a licence for the
premises within the preceding 12 months, unless the refusal has been
reversed on appeal

Appeals
An applicant for the grant of a licence whose application is refused has the
right of appeal to the Magistrates Court within 21 days. However, if refusal
was on the grounds specified in Discretionary refusal (c) and/ or (d) as above
then no right of appeal is available under this legislation. A person whose
application is refused due to these reasons may attempt to invoke a judicial
review of the Council’s use of its discretion in coming to a decision, if they
believe they can show that the Council has, for example, acted improperly,
unreasonably or irrationally, has not examined both sides of a case or has
pre-determination or bias

Those parties making representations have no right of appeal under this


legislation.

Enforcement
Once licensed, it is essential that premises are maintained and operated so
as to ensure the compliance with specific terms of the licence and the
requirements of the LGMPA as amended by section 27 of the Policing and
Crime Act 2009 and the Council will make arrangements to monitor premises.
Failure to maintain compliance will result in action being taken in accordance
with the Council’s relevant Enforcement Policies.

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APPENDIX A

Definitions

The Term Meaning

The Act Local Government (miscellaneous Provisions) Act


1982 (LGMPA) as amended by section 27 of the
Policing and Crime Act 2009
The Council London Borough of Lewisham

Licensed Premises Any premises, vehicle, vessel or stall licensed under


the Act
Licence holder A person who is the holder of a sex establishment
licence
Sex Establishment A licence granted pursuant to Schedule 3 of the Act as
Licence amended by section 27 of the Policing and Crime Act
2009
Relevant Locality In relation to premises, the Ward in which the premises
re situated: and in relation to a vehicle, vessel or stall,
the ward or wards in which it is desired to use it as a
sex establishment

In this policy the following expressions that is to say ‘Sex Establishment’ Sex
Shop’ Sex Article’ and ‘Vessel’ shall have the meanings respectively assigned
by schedule 3 of the Act as amended by section 27 of the Policing and Crime
Act 2009

The Term Meaning


Sex Establishment Sex Cinema, Sex Shop , Sexual Entertainment Venue

Sex Cinema Any premises, vehicle, vessel or stall used to a


significant degree for the exhibition of moving pictures,
by whatever means produced, which
a) are concerned primarily with the portrayal of, or
primarily deal with or relate to, or are intended
to stimulate or encourage –
(i) sexual activity
(ii) acts of force or restraint which are
associated with sexual activity
b) are concerned primarily with the portrayal of, or
primarily deal with or relate to, genital organs or
urinary or excretory functions, but does not
include a dwelling house to which the public is
not admitted

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Sex Shop Any premises, vehicle, vessel or stall used for a
business which consists to a significant degree of
selling, hiring, exchanging, lending, displaying or
demonstrating
a) sex articles
b) other things intended for use in
connection with, or for the purpose of
stimulating or encouraging
(i) sexual activity
(ii) acts of force or restraint which are
associated with sexual activity

Sex Article a) anything made for use in connection with, or for


the purpose of stimulating or encouraging:
(i) sexual activity
(ii) acts of force or restraint which are
associated with sexual activity and
b) anything

(i) containing or embodying matter to be read


or looked at or anything intended to be used,
either alone or as one of a set, for the
reproduction or manufacture of any such
article: and
(ii) to any recording of vision or sound, which:
A) is concerned primarily with the portrayal of, or
primarily deals with or relates to, or is intended
to stimulate or encourage, sexual activity or acts
of force or restraint which are associated with
sexual activity: or
B) is concerned primarily with the portrayal of, or
primarily deals with or relates to, genital organs,
or urinary or excretory functions

Sexual Any premises at which relevant entertainment is


Entertainment provided before a live audience for the financial gain of
Venue the organiser or entertainer. Relevant entertainment
means:
a) any live performance or
b) any live display of nudity
which is of such a nature that, ignoring financial gain, it
must be reasonable assumed to be provided solely or
principally for the purpose of sexually stimulating any
member of the audience(whether by verbal or other
means)

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