A licensing board’s decision to refuse an application to allow adult cinema-goers to take alcoholic drinks in with them while watching any film has been overturned following an appeal.
A sheriff ruled that North Lanarkshire Licensing Board exercised its discretion in an “unreasonable manner” in refusing an application by NATL Amusements (UK) Ltd.
Variation of licence
Sheriff Daniel Kelly QC heard that the appellants challenged the refusal of an application to vary a licence which restricted the consumption of alcoholic drinks at Showcase Cinema in Coatbridge to those watching films classified as suitable for persons aged 18 or over.
The court was told that in May 2015 the appellants had secured a licence which permitted the consumption of alcohol, with a specific condition that: “There will be no alcohol consumption in the screening areas unless the classification is for persons aged 18 years or over or where the licence holder restricts the screening of any film to persons aged 18 years or over…”
After one unsuccessful attempt to have the condition varied, the appellants lodged a further application in terms of section 29 of the Licensing (Scotland) Act 2005, which would have permitted the taking of alcoholic drinks into any films shown after 7pm.
The terms of the proposed specific condition were that: “Until 19.00 alcohol will only be permitted into screens showing a film classified for 18 year olds or over, private conferences or corporate events. From 19.00 onwards alcohol will be permitted in all screens.”
But Police Scotland objected to the variation, expressing concerns about the lack of supervision of those consuming alcoholic drinks in subdued lighting.
The police maintained that those under 18 could be presented with an opportunity to consume alcohol, which “increased the likelihood of disorder and the potential for harm”.
In September 2017 the board refused the application, on the basis that the variation was “inconsistent” with the licensing objective of protecting children and young persons from harm, and the “unsuitability” of the premises for use for the sale of alcohol having regard to the location, character and condition of the premises.
Among reasons advanced for the former ground were that the board was “uncomfortable” with the idea of alcohol being consumed in the screening areas when young persons were present, and that the board was not satisfied that “adequate supervision” of the consumption of alcohol when young persons were present could take place in the darkness.
As regards the latter ground, the reasons given by the board included that it felt that the darkened enclosed cinema screening rooms were an “unsuitable environment” for alcohol to be consumed when young persons were watching films. Another important factor was said to be the concerns expressed by the police regarding the increased likelihood of disorder and the potential for harm.
The board adjudged the concerns which it had to be “real and not based on fanciful or speculative considerations”.
However, counsel for the appellants argued that the board had “erred in law” et separatim exercised its discretion “unreasonably” in that it had reached a decision for which there was “no proper or adequate factual basis”.
But the solicitor for the respondents maintained that the board was “entitled” to have taken the decision to refuse the application.
‘No factual basis for decision’
Allowing the appeal, the sheriff ruled that the board had both erred in law and exercised its discretion in an “unreasonable manner”.
In a written judgment, Sheriff Kelly said: “While the board have expressed a discomfiture which they feel and concerns which they harbour, it is not possible to detect any justifiable, objective material which forms the basis for them and thereby for the decision taken by them.
“Were there any actual instances of harm to be drawn from cinemas elsewhere, none were alluded to. Were the particular locality such as to render it sensible to treat it differently from elsewhere, no mention was made of it. While the concerns might have been real in that they were genuinely held, they have not been demonstrated to be real in that any rational or discernible explanation was evident for them.
“In my estimation the reasons provided by the board were inadequate. No solid factual basis such as would warrant a blanket ban on alcohol consumption during films being screened in the venue was presented to the board; nor was any relied upon by them in refusing the application. It follows in my evaluation that to have reached their decision upon the basis that they did the board exercised their discretion in an unreasonable manner.”
He added: “Inasmuch as an error of law might extend beyond abstract questions of law and encompass the application of the law to particular factual situations and to decisions for which there is no evidence or which are inconsistent with the evidence…I also conclude that there was an error of law in the way in which the board reached their decision and expressed their reasons for it. In relation to each ground, therefore, and on essentially the same basis, the appeal is upheld.”
The decision was therefore reversed and the application was granted.