Lap times
A lap-dancing club in the centre of Newquay has lost its licence to provide adult entertainment due to poor management, following two years of litigation and two separate appeals. Philip Kolvin QC explains the background to the case.
In 2005 Red Square nightclub in Newquay started to offer lap dancing. Because adult entertainment was neither prohibited nor regulated by its premises licence, it was able to do so without any licence conditions regulating such entertainment. The commercial offer at the venue was full nude dancing, with full body contact between the performer and the customer.
In 2008, two local residents applied to review the licence so as to secure licence conditions dealing with the adult nature of the venue. The premises licence holder unsuccessfully challenged the status of the residents as interested parties and also failed in a contention that their application was frivolous.
The Licensing Sub-Committee of Restormel Borough Council added 13 conditions, including a condition that performers should remain three feet from the customer while performing. The premises licence holder appealed against the conditions, and in particular the “three foot rule”.
However, in September 2009, East Cornwall Magistrates upheld the rule, saying that it was necessary for the protection of the performers themselves, and also for the protection of the public by lessening the sexual charge of the venue in an area visited by many young, vulnerable women. (The decision of the magistrates was challenged by way of case stated, although the licensee has indicated that this further appeal is to be withdrawn.)
Within two days of the magistrates’ decision to uphold the three-foot rule, police visiting the property found nude women sitting on customers’ laps and stroking them in a provocative manner. The management produced an advice from Queen’s Counsel stating that this was not a breach of the condition imposed by the magistrates, because the condition related to the performance, and sitting on someone’s lap was not a performance.
The police, however, considered that this was a flagrant breach of the licensing objectives, and an attempt to circumvent the ruling of the magistrates, and so brought a further review. Cornwall Council, which was now the licensing authority, decided to modify the licence so as to excise adult entertainment from it altogether. The licensee appealed again.
Before the case reached appeal, the licensee went into administration but a new company took over the premises, the licence and the appeal, with senior directorship and management in common. The police relied on further incidents at the premises including an allegation that an underage dancer had been employed, and poor record keeping and management.
After a two-day hearing, East Cornwall dismissed the appeal and ordered the payment of £12,000 costs. It held that management had been unsatisfactory, stating that the management team “lacks any real sense or appreciation of the need to promote the licensing objectives”.
The court considered that permitting dancers to sit naked on customers’ laps just after the first appeal hearing “demonstrates that their priority is determined by commercial and other factors rather than proper and full regard to the licensing objectives”. Although the licensee offered conditions to prevent nude contact altogether, the court was not persuaded that this would achieve a reversal of the management attitude.
Comment
This demonstrates a willingness by the court to look beyond the legalities of conditions to a consideration of whether the management team can be trusted to run the particular operation in the particular location. Where the operation or the location is sensitive, or as in this case, both, the licensing authority and the court is well within its rights to consider the track record, ability and attitude of the management team. This is because the ultimate goal is not simply compliance with the licence but promotion of the licensing objectives.
This is a rare if not unique example of closure of a licensed lap dancing establishment, although the conditions on the licence would enable continuation of the venue as a nightclub, bar or restaurant.
Philip Kolvin QC is a barrister at 2-3 Gray’s Inn Square. He appeared for the council in this case.
