This is the first Sex Establishment Policy for BCP Council since the establishment on the 1st April 2019 of a single local government area for the now dissolved boroughs of Bournemouth, Christchurch and Poole.
The Licensing Manager presented a report, a copy of which had been circulated to each Member and a copy of which appears as Appendix 'A' to these Minutes in the Minute Book.
This was the first Sex Establishment Policy for BCP Council since the establishment on the 1st April 2019 of a single local government area for the now dissolved boroughs of Bournemouth, Christchurch and Poole. Both Bournemouth and Poole had previously published individual policies for sex establishments, that is, sex shops, sexual entertainment venues, and sex cinemas. The Licensing Authority was required to prepare, adopt and publish a new policy for the new local government area 24 months from the date of reorganisation. In order to do this the Council first needed to adopt schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982 (as amended by Section 27 of the Policing and Crime Act 2009) for the new single local government area of Bournemouth, Christchurch and Poole.
The Committee was asked to consider the draft policy at Appendix 2 of the report, and amend as required, before approving it for a period of public consultation. The Licensing Manager referred in particular to Chapters 10 and 11 of the policy. These sections dealt with the character of locations suitable or otherwise for licensed sex establishments and the number of sex establishments deemed appropriate in a locality. It was noted that the Licensing Authority had discretion to specify on these matters.
In addition to the policy, a single set of fees which covered the costs to the Council was proposed at the updated Appendix 3, published as a supplement to the report.
The Chair explained the process for considering the draft policy and asked the Committee to focus on the main issues for discussion and decision in Chapters 10 and 11. Any typographical errors and technical amendments would be addressed by officers prior to the policy being released for public consultation.
The Licensing Manager, Senior Licensing Officer and Senior Solicitor provided the following information in response to questions from Committee Members:
· The definition of a sex shop for the purposes of sex establishment licensing referred to any ‘premises, vehicle, vessel or store’ used for the business. Online only operators were not included in this definition.
· The business was defined as a sex shop if it consisted of a significant degree of qualifying adult material or a significant degree of profit from that material. While there was case law to assist in determining what constituted a ‘significant degree’, this did not preclude each case being assessed individually.
· There were no limits on the number of sex establishments which one individual or company could own. This was not necessarily a problem and it was noted that locally the same operator of two licensed sex shops operated responsibly with no complaints.
· Until the new policy was adopted and published the Council would continue to apply the two existing policies to any applications or renewals, but at the same time there would be a need to take some account of the developing policy.
The Committee gave detailed consideration to the question of whether to limit the number of sex establishments in pre-defined localities, as set out in Paragraphs 10.5 to 10.10 of the draft policy. It was noted that numbers and localities given in this section were historic. Members felt that these were no longer appropriate for the conurbation as a whole and if retained they may restrict customer choice. The Committee discussed the role of market forces in self-limiting the number of establishments which were viable. As this was a long term policy Members felt that it should include the flexibility to respond to the changing nature of local areas along with business/customer requirements. The Committee also talked about the impact that limiting numbers could have in increasing complacency among existing operators, stifling competition and creating potential monopolies, while unwittingly encouraging those operators unable to obtain a licence to bend the rules.
The Committee referred to Paragraph 10.2 of the policy which explained how it was intended that the Licensing Authority would treat each application received: on its merits, while considering the character of the locality and whether the grant of an application would be inappropriate having regard to its proximity to a comprehensive list of criteria. The Committee agreed that this list of criteria provided a robust framework to use when determining applications. Members felt that a consideration around the numbers, type and concentration of premises in a single area should be incorporated in the list as a safeguard. It was noted that there was opportunity to submit representations to the Licensing Authority in respect of applications and renewals, on valid grounds of objection (this did not include moral grounds).
Having discussed the report and the appendices the Committee agreed to make the following changes:
Appendix – Draft Policy
Chapter 10: Location of Licensed Premises
· Paragraph 10.2 – Replace the word ‘characteristics’ with ‘character’, to read: ‘..the character of the locality..’
Reason: ‘Character’ is the correct terminology used in the relevant legislation
· Paragraph 10.2 – Amend final bullet point to read: ‘The number, type and concentration of other sex establishments already licensed within the locality’
Reason: The Committee agreed that this was an issue to be included in the list of criteria to be considered when assessing each application on its merits, rather than imposing a limit on the number of establishments deemed appropriate in a particular locality.
· Paragraphs 10.5 to 10.10 – to be deleted.
· Reason: The Committee debated this section at length and concluded that the Licensing Authority and the Licensing Committee was capable of determining each application on its merits in accordance with the list of criteria in Paragraph 10.2, without the need to impose a limit of numbers.
Chapter 11: The Character of the Relevant Locality
· Paragraph 11.1 – to be deleted.
Reason: The Committee felt that this paragraph was very similar in content to 10.1
· Paragraph 11.3 – Amend last clause to remove the word ‘cumulative’ to read: ‘and where there is already one or more sex establishment premises in the locality, the impact of an additional licensed sex establishment premises.’
Reason: ‘Cumulative impact’ in licensing terms is associated with the Licensing Act 2003, with specific reference to the crime and disorder licensing objective.
· Paragraphs 11.2 and 11.3 – move these paragraphs to Chapter 10 to form new Paragraphs 10.5 and 10.6.
Reason: Content is closely related to the considerations set out in Chapter 10, and follows on naturally from paragraph 10.4
· Chapter 11 – to be deleted. Rename Chapter 10: ‘Character and Locality of Licensed Premises’
Reason: to better reflect the content of the merged chapters following the amendments made.
The Committee agreed that the wording in relation to the amendments at 10.2 and 11.3 be reviewed by the Licensing Manager and Senior Solicitor to ensure it reflected the correct technical/legal terminology as required.
Appendix A, Section C – Special Conditions for Sex Shops
· Goods Available in Sex Establishments – Update references to film/video/DVD/Blu-ray, etc to include reference to ‘digital, physical and virtual media’.
Reason: To ensure the most up to date technological means are included in the policy.
Appendix 4 – List of Consultees
· Include Neighbourhood Forums in the list, at member request.
· Amend the listing for Bournemouth Magistrates Court to read ‘Dorset Magistrates Court (for Bournemouth, Christchurch and Poole)’
Reason: To provide for clarity for members of the public.
The Chair advised Committee Members to submit any further comments or suggestions on the list of consultees to the Licensing Manager.
Once updated with the Committee’s amendments the draft policy would be circulated for public consultation in January 2021. The Committee would consider the feedback received and further amend the policy as required, before recommending the final policy for adoption by Council.
RECOMMENDED that Council approves the adoption of the legislation, that is, Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982 (as amended by Section 27 of the Policing and Crime Act 2009).
(a) the Draft BCP Council Sex Establishment Policy as amended by the Committee be agreed for public consultation to begin in January 2021;
(b) the proposed BCP Council Sex Establishment Fees be agreed.