Reflections on The Cannabis (Licensed Premises) Act 2000 (CLIP) - Essay Example

Question A Mr. Dougal: This is in response to your letter d March 2008 wherein you requested for a legal opinion in re your application with the Bumbling Council for a license to sell cannabis under The Cannabis (Licensed Premises) Act 2000 or CLIP. You stated in your letter that you have applied on several occasions for the said license and in all those occasions you were denied by the aforesaid Council without any explanation. You also stated that, on one occasion, you requested to put your application in person and was as usual flatly denied for no explicit reason. This is unacceptable. Under the law, you are entitled to a fair assessment of your application and in the event of a denial such denial must be communicated to you replete with the reasons that the Council has for refusing your application. It is rudimentary under public and administrative law that a public agency must apprise a denied applicant the grounds for denying his application for license so that the applicant can prepare himself or herself with the appropriate rejoinders to such grounds for denial in the event that the applicant will elevate and appeal his case to the same board or a higher authority. In addition, flatly refusing you to put your case in person before the council, again without justification, so that you can appeal is in contravention of all known administrative procedural processes. The acts of the Bumbling Council, has in effect, denied you of your basic rights to notice and hearing under the fundamental tenets of due process constitutionally guaranteed by our laws. Existing statutory laws on premises licensing all enshrine these basic principles. The Licensing Act of 2003, for example, which is the current legislation and basis for premises licensing for use on licensable activities like alcohol sale and certain entertainment related businesses provide a mechanism for approving and denying applications. Specifically, Section 23 of Part 3 of the said law mandates the licensing authority to give notice of such denial with reasons, to wit: Section 3. Where an application is rejected under Section 18, the relevant licensing authority must forthwith give a notice to that effect, stating its reasons for the decision, to --- (a) the applicant, (b) any person who made relevant representations in respect of the application, and (c) the chief officer of police for the police area (or each police area) in which the premises are situated.1 The CLIP, an older legislation, although silent on the matter is presumed to follow the elementary precepts of due process. In addition, the rationale for giving notice to the applicant of his denial and laying down therewith the grounds and reasons for such denial is founded not only on the basic principle of due process but for practical considerations as well. A denied applicant in premises licensing may seek to subsequently elevate his denied application to the magistrate court which will then pursue a review of the denied application. Without the notice of denial or even if the notice of denial can be attached to the notice of appeal but without the reasons therefore, the magistrate court will have nothing to base its review on. The right to justification for denial by an administrative body is a legal precept enunciated in the case of MJT Securities Ltd. V. Secretary of State for Environment2. Specifically, the decision stated that: “an obligation whether statutory or otherwise, to give reasons for a decision is imposed so that the person affected by the decision may know why they have won or lost, and, in particular, may be able to judge whether the decision is valid and therefore unchallengeable, or invalid and therefore open to challenge” as quoted from the case of R v. Westminster C. C. ex p. Ermakov.3 From all of the above it is apparent then that the Bumbling Council did not observe appropriate procedural and substantial methods in processing your application. Recourse to the court is proper and ripe in your case. Since under the law, you have a right to apply for a premises license and was denied unjustifiably without any explanation and your request for a personal appearance with the Council was likewise denied then recourse to the magistrate court for a mandamus to compel the Bumbling Council to comply with their ministerial duty to hear your application and give its decision in accordance with their official criteria for accepting or refusing applications is proper under the circumstances. I therefore suggest that you visit our office so we can further discuss the details of the case that you should be filing with the court. Thank you. Question B Ms. Florence: This is in response to your letter dated March 1, 2008 inquiring your rights vis-à-vis the Bumbling Council who has recently notified you of their intention to revoke your license to sell cannabis, a right which was guaranteed you under the Cannabis (Licensed Premises) Act of 2000. You also stated in your letter that the aforesaid Council did not make available to you enough reasons why they are planning to withdraw your license, other than that it was because of an information offered by a confidential source. At the onset, let me make clear to you that the manner with which the Bumbling Council is revoking your license is highly dubious. The revocation of licenses must always be accompanied by an explanation as to why the licensing authority decides to withdraw a licensed already granted. A revocation of licence has the consequence of prejudicing the party whose business is subject to cessation once his license is revoked. The fact that the revoking authority keeps the reason to itself, will double the injury that the party will sustain as he will be deprived of the basis for which he can elevate an appeal to the magistrate court or a reviewing body. This is exactly the contention made by the appealing party in the case of Orange Communications Ltd v. Director Telecommunications4 is a case in point. This case originated the refusal of the Director of Telecommunications of Ireland to grant it a license to operate a mobile telephone service in the area. An issue, inter alia, in this case pertinent to your situation is that the Director of the Telecommunications did not comply with her statutory obligation to lay down the basis of her refusal to grant the license To make you appreciate fully the decision let me give you a brief history of the facts of the case. The Director of Telecommunications of Ireland announced to potential mobile operators that Ireland is considering the granting of license to operate of a third telecommunication in addition to the already existing two operators. A competition served as the medium to determine which of the applicants was the fittest and it was declared that the entity that would be ranked first will be considered for the grant of the operating license. It turned out that Appellant Orange was given only the second ranking and in her letter of proposed denial of license, the Director stated that the reason for the proposed denial could be found “in the detailed comparative evaluation during the competition process, Orange Communication Limited was not ranked first and the discussions entered into with the higher ranked applicant are satisfactory.” Orange was given twenty-one days to appeal but prior to that its solicitor notified the Director that her notice to Orange was inadequate because it did not set the reasons for her refusal. During the representation, she gave the following reasons as justification for her refusal: one, Orange did not top the ranking; two, the discussion with the top ranking applicant was satisfactory, and; none of the reasons elucidated by Orange in its representation caused her to change her mind. The High Court gave credence to the issue of inadequate reasoning by the Director in his refusal to grant Orange a license. Finding analogy with the case of Securities Limited v. Secretary of State for the Environment, the Court cited the following: first, when a statutory obligation to give reasons exists, the same should be “proper, intelligible and adequate”; second, the reason should be ascertainable by the party “without difficulty or undue research”; third, it should be clear and usable by the party; fourth, it should allow a reviewing court to conclude whether the reasons stated by the administrative body is “sufficient or justifiable” and; fifth, the “degree of the particularity” of the reasons is a case to case basis.” Albeit the above is not exactly a case of revocation or withdrawal of license, the case nevertheless gave the importance of why an administrative body should always predicate his denial or in this case revocation/withdrawal with reasons or reason. This is precisely to allow the party who has been prejudiced with an adverse decision, whether as a consequence of a denial or in this case withdrawal, enough basis to seek refuge to a reviewing body and more importantly allow the reviewing court to properly review the basis of the denial or revocation. In addition, let me clarify to you that under existing laws, there are appropriate procedures in the revocation of licenses. Since the Cannabis Licensed Premises Act of 2000 is silent on the matter, an earlier legislation, by way of parallelism may be applicable in your case. The pertinent provision of The Licensing Act of 1964 may be found in Section 20A of Part 1. It states in part that any “evidence given for the purpose of the proceedings shall be under oath. As can be gleaned from the above provision, any evidence that will be offered to the licensing authority for the revocation of any subsisting licence must be done so under oath. Therefore, the Council’s contention that the reasons for your rejection cannot be revealed to you because it is confidential is unacceptable and unlawful. By reason of the evidence being under oath, it is presumed that the nature of that testimony is public and therefore non-confidential especially so that it is being used as evidence by an administrative body for licensing purposes determination. I therefore suggest that you give our office a visit as soon as possible so we can further discuss the matter and we can help you chart the course of your action. Thank you. Question C Mr. Brian: McCarthy & Partners Solicitors has received your letter dated March 1, 2008 requesting the firm’s legal opinion as to your rights and legal recourses with respect to a denied application with Bumbling Council for the issuance of premises license to sell cannabis in your area. You likewise stated that there was a nagging suspicion on your part that a member of the Bumbling Council who happens to be operating a small store in your area had somehow influenced the Council in rejecting your application. We noticed however that you did not state whether the Bumbling Council in denying your application furnished you the reasons why they rejected the said application. The justification of the Bumbling Council as to why you were denied a premises license is vital to your case so that in the event you decide to pursue this application and appeal its rejection to a reviewing body you would have armed yourself with the appropriate counter-statements refuting each and every objection to your application. The necessity of this aspect of the notice of denial has been elucidated in a number of cases decided by the various courts in our jurisdiction. In the case for example of R v. Westminster C. C. ex p. Ermakov5, it was held to the effect that providing a reason to a denial by an administrative body, whether mandated by legislation or not, is obligatory upon that administrative body so that any party affected by such decision of denial is able to make a determination whether the decision is fair or is questionable and if the latter, therefore open to challenge in a higher reviewing body or magistrate’s court. For your further enlightenment, let me give a brief statement of the facts of the case: The Appellants came to the United Kingdom sometime in 1993. It was their contention that they had to flee Greece where they originally resided for fear of their lives. The family, upon arrival in the United Kingdom, filed an application for homelessness with the Appellee Westminster Council. After interviewing the refugees however, the Council denied their application on the ground that their story was unbelievable and therefore the Council cannot give them shelter under the law. In other words, the Council found their case one of “intentional homelessness.” When the denied party appealed in court, the Council submitted an affidavit recounting the reasons for the denial, one which is different from the original reason given to the family in the course of their application. The UK House of Lords found the irregularity in such disparities of statements. Albeit that the instant case is not one of revocation of license, it is nevertheless an important and pertinent decision to your case because it highlighted the importance of the obligation of an administrative body to state the reasons why it has reached a certain decision. The relevance of this case to your case is that the Bumbling Council needs to provide you with a reason or reasons as to why they have decided to deny your application. There is dual rationale for this requirement. First, it will allow you to determine for yourself whether the Bumbling Council was right in their determination or whether you find their reasons contrary to what you know, in which case you can appeal to the Council itself. If they will still deny your application and you think such denial is unreasonable and not grounded on fairness and justice, then you can elevate the matter to the court. Second, upon elevation to the court, the court by reviewing the reasons cited by the council can readily see whether or not such reasons are justified or not because they are evident on the face of the denial If indeed the reason of the Bumbling Council in denying your application was solely based on Eric’s representation, then certainly such decision is tainted with bias and prejudice and is unlawful for not having been based on the merit of your case which is not correct and proper. In the first place, there is no precedent in denying applications for premises licensing on small shops on the basis that doing so would prejudice the so called “legitimate shops.” What he means by the term “legitimate shops” is unclear and the reason why other shops apply for premises licence is precisely to clothe them with legitimacy. However, unless the bumbling Council has stated specifically that reason for their rejection of your application was influenced by the statements of Councilor Eric then your suspicion that Eric was responsible for your rejection remains a suspicion and cannot be relied upon as basis for an appeal. We suggest that you come to the office so we can discuss your case in detail and draft the proper solutions to your case. Thank you. References/Bibliography: Licensing Act of 1964, The Licensing Act of 2003, The MJT Securities Limited v Secretary of State for Environment [1997] EWCA Civ 2243 (30th July, 1997) http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/1997/2243.html&query=title+(+Securities+)+and+title+(+v.+)+and+title+(+Secretary+)+and+title+(+of+)+and+title+(+State+)+and+title+(+for+)+and+title+(+the+)+and+title+(+Environment+)&method=boolean Orange Communications Ltd v. Director Telecommunications [1999] IEHC 254 http://www.bailii.org/cgi-bin/markup.cgi?doc=/ie/cases/IEHC/1999/254.html&query=revocation+and+licence+and+without+and+disclosure+and+reasons&method=boolean R v. Westminster C. C. ex p. Ermakov [1996] 2 All ER 302 at 309 http://www.bailii.org/ew/cases/EWCA/Civ/1995/42.html Read More