A regulatory amendment published on 28 September 2020, has imposed with immediate effect further obligations the hospitality sector as the government seeks by regulation to reduce the spread of COVID-19.

One new requirement is that:

A person responsible for carrying on a business of a public house, café, restaurant or bar (including a bar in a hotel or members’ club) must, during the emergency period, ensure that no music is played on the premises which exceeds 85db(A) when measured at the source of the music

This requirement does not apply to any performance of live music.

In this jointly authored article:

• Charles Holland MIOL (Barrister, Francis Taylor Building, Inner Temple and Trinity Chambers, Newcastle) sets out the legislative background to this new music level requirement;
• Peter Rogers BSc(Hons), MSc CEng FOIA FRSA MIOL (Managing Director, Sustainable Acoustics Ltd ) reviews its effectiveness and enforceability in terms of an acoustic test;
• Charles and Peter give their joint conclusions.

THE LEGISLATIVE BACKGROUND

(Charles Holland)

The Health and Safety at Work etc. Act 1974 and associated guidance

When the hospitality sector (or more accurately, parts of it) reopened after the lockdown on 4 July 2020, the government’s approach was that existing legislation, in terms of the Health and Safety at Work etc Act 1974 and the Management of Health and Safety at Work Regulations 1999 already provided underlying duties to provide safe environments on the basis of risk assessment, and what was required was a COVID-specific risk assessment. Substantial guidance was provided as to how this might be done, both by government and the Health and Safety Executive.

Loud music was identified as a feature that may encourage shouting, and through that increased risk of transmission of the virus.

This risk was addressed in guidance from the outset.

The 3 July 2020 edition of BEIS’s “Keeping workers and customers safe during COVID-19 in restaurants, pubs, bars and takeaway services” provided in relation to “Entertainment” at paragraph 4.5:

Objective: To maintain social distancing when providing entertainment within or outside restaurants, pubs, bars and similar venues that serve food or drink.

• For many restaurants, pubs and bars, providing entertainment such as recorded music, live sports broadcasts, quizzes, live musicians or comedians are an important part of their business.
• At this time, venues should not permit live performances, including drama, comedy and music, to take place in front of a live audience. This is important to mitigate the risks of aerosol transmission - from either the performer(s) or their audience. There will be further guidance setting out how performing arts activity can be managed safely in other settings, for instance rehearsing or broadcast without an audience.
• All venues should ensure that steps are taken to avoid people needing to unduly raise their voices to each other. This includes, but is not limited to, refraining from playing music or broadcasts that may encourage shouting, including if played at a volume that makes normal conversation difficult. This is because of the potential for increased risk of transmission, particularly from aerosol transmission. We will develop further guidance, based on scientific evidence, to enable these activities as soon as possible. You should take similar steps to prevent other close contact activities, such as communal dancing.

This has become refined over time, the latest (24 September 2020) guidance providing:

• Objective: To maintain social distancing when providing entertainment within or outside restaurants, pubs, bars and similar venues that serve food or drink.
• For many restaurants, pubs and bars, providing entertainment such as recorded music, live sports broadcasts, quizzes, live musicians or comedians are an important part of their business.
• From 15 August, venues may host socially distanced indoor and outdoor performances, though we encourage performances to continue to take place outdoors wherever possible. Venues should take account of the performing arts guidance in organising performances. All venues should ensure that steps are taken to mitigate the increased risk of virus transmission associated with aerosol production from raised voices, such as when speaking loudly or singing loudly, particularly in confined and poorly ventilated spaces. This includes, but is not limited to, lowering the volume of background music, and refraining from playing music or broadcasts that may encourage shouting, particularly if played at a volume that makes normal conversation difficult. Evidence on the most effective steps that can be taken to limit the transmission of the virus continues to be regularly reviewed. This guidance may be updated in the future in response to changing scientific understanding.

Steps that will usually be needed

1. Determining the viability of entertainment and maximum audience numbers consistent with social distancing outside and within venues and other safety considerations.
2. Preventing entertainment, such as broadcasts, that is likely to encourage audience behaviours increasing transmission risk. For example, loud background music, communal dancing, group singing or chanting.
3. Reconfiguring indoor entertainment spaces to ensure customers are seated rather than standing. For example, repurposing dance floors for customer seating.
4. Encouraging use of online ticketing and online or contactless payments for entertainment where possible.
5. Communicating clearly to customers the arrangements for entertainment and clearly supervising with additional staff if appropriate.

The Obligations of Hospitality Undertakings Regulations

Despite these refinements, as the lockdown has eased, and with the corresponding increase in transmission rates, the government has increasingly had recourse to regulation, currently being produced at a seemingly relentless pace.

Selected guidance became regulatory obligation for the entire sector with the publication of the Health Protection (Coronavirus, Restrictions) (Obligations of Hospitality Undertakings) (England) (Regulations) 2020 (S.I. 2020 No 1008) (“the Regulations”). The Regulations were made in the afternoon of 17 September 2020 and came into force on 18 September 2020. This is typical of the short notice being given of new regulations, although - as shall be seen -

As is now par for the course, the Regulations were made by the Secretary of State without prior Parliamentary debate or scrutiny, using the emergency powers under the Public Health (Control of Disease) Act 1984.

The purpose of the Regulations - according to the accompanying Explanatory Memorandum - was “to support an effective response to reduce public health risks posed by the incidence and spread of SARS-CoV-2”, and, in particular “to provide greater enforcement of safety measures at hospitality venues”.

The Regulations as initially introduced required public houses, cafes, restaurants and other businesses that provided food or drink for consumption on its premises to take all reasonable measures to ensure that:

• no bookings for a table for a group of more than six (unless an exemption to the “rule of six” (found in regulation 5 of the Health Protection (Coranavirus, Restrictions) (No. 2) (England) Regulations 2020 (as amended) (“the Principal Regulations”) applied;
• no groups of more than 6 are admitted to the premises (unless a rule of six exception applied);
• no person in one group “mingles” with any person in another group where not permitted under the Principal Regulations;
• an appropriate distance is maintained between tables occupied by different groups.

The Obligations of Undertakings Regulations

The Regulations were amended with effect from Monday 28 September 2020. Although the amending regulations were made on Saturday 26 September, publication did not take place until part way through the morning of 28 September (so after the regulations came into force).

“Hospitality” is now struck out of the title of the Regulations, because by virtue of the amendments they are extended to include all premises to which The Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements) Regulations 2020. This covers not just public houses, cafes, restaurants and other businesses that provided food or drink for consumption on its premises, but leisure and tourism services, close physical contact services and services provided for social, cultural and recreational purposes.

What used to apply to the hospitality sector in terms of bookings, mingling (now re-badged “joins another group”) and tabling spacing now applies to this much wider sector.

The amendments also place further obligations on the hospitality sector.

Firstly, a person responsible for carrying on a business of a public house, café, restaurant or bar (including a bar in a hotel or members’ club) must, during the emergency period, take all reasonable measures to stop (a) singing on the premises by customers in groups of more than six; or (b) dancing on the premises by customers.

This provision does not apply to dancing at wedding ceremony or wedding reception by the couple to whom the wedding relates (ditto at a civil partnership ceremony).

Secondly, there is the prohibition dealt with at the outset of this article, the music level requirement.

The music level requirement

The music level requirement is found in regulation 2(1C)-(1E):

(1C) A person responsible for carrying on a business of a public house, café, restaurant or bar (including a bar in a hotel or members’ club) must, during the emergency period, ensure that no music is played on the premises which exceeds 85db(A) when measured at the source of the music.

(1D) Paragraph (1C) does not apply to any performance of live music.

(1E) In paragraph (1C), “db(A)” means A-weighted decibels.”.

Breach of this prohibition is a criminal offence punishable on summary conviction by an (unlimited) fine. There are provisions for the service of fixed penalty notices.

Music and the live music exemption

“Live music” is a familiar concept to licensing practitioners, the provisions of the Licensing Act 2003 setting out various categories of regulated entertainment including “a performance of life music” and “any playing of recorded music”. Live music within this context can be either amplified or unamplified (as confirmed by the deregulatory provisions of the Live Music Act 2012).

The Licensing Act 2003 exempts music (whether live or recorded) from regulation if incidental to some other activity (not being a regulated entertainment). “Background” music is not considered to be licensable.

None of these nice distinctions apply to the Regulations.

Any recorded music, whether background or not, is bitten by the music level requirement.

No performance of live music, whether background or not, is affected.

There may be some difficult and hitherto not-legally relevant distinctions between what is live and what is recorded music? Is a concert by a DJ who mixes tracks live in response to an audience really not a performance of live music? Is a live performer who plays using samples of recorded music truly live? What of lip-synching bands? Legally fascinating (or not) those questions might be, they are outside the scope of this article - which now goes on look at the issues of acoustic science the music level requirement raises. 

ACOUSTIC COMMENTARY

(Peter Rogers)

The scientific discipline of acoustics

Acoustics is the interdisciplinary science that deals with the study of all mechanical waves in gases, liquids and solids including vibration, sound, ultrasound and infrasound. It is a technical subject which requires qualified understanding for the undertaking of robust and technically justifiable (i.e. objective) investigations and measurements.

Suitably qualified persons include members of the Institute of Acoustics and the Association of Noise Consultants, or those certified as competent on a suitably accredited course for noise measurement.

Unfortunately, the manner in which the new music level requirement has been drafted appears to betray a failure to draw upon suitability qualified expertise and understanding.

First, I start with the units employed, A-weighted decibels or, to use the correct abbreviation, dB(A) (and not db(A) as the Regulations incorrectly provide).

The A-weighting is a correction made in each frequency octave band to approximate human hearing response. The overall value is then a ratio in decibels which has been A-weighted.

Whilst the selection of the dB(A) unit is appropriate given that the music level requirement is aimed at governing the impact of sound on humans, it means nothing without an idea of the parameter being measured. This is crucially important, as the result could be widely different depending on the parameter used.

Sound measurements are generally expressed as an average (LAeq) over time, but also as maximums (LAMax), which are absolute maximums at any instant (no matter how short) during the period that measurements are taken. The music level requirement gives no indication as to which parameter applies to it, and specifically whether it is an average or maximum.

If it is a maximum, then this would cause particular difficulties in terms of compliance, as it could be breached at any one instant. Extraneous noise sources other than music in a premises could quite easily exceed 85dB(A) (LAMax), and cause a measurement that is ostensibly in breach of the music level requirement.

For this reason, average parameters are typically used in noise limits contained in licensing conditions, but these parameters need to be explicitly defined in terms of time: there is no “industry standard” - it is matter of what is appropriate for the premises in question. Measuring periods typically range from 1 to 5 minutes: the shorter the period the more stringent the condition, the longer the period the harder it is to get a clean sample (i.e. unaffected by extraneous noise). Contaminated samples undermine enforceability.

Secondly, “at the source of the music” is open to interpretation. Presumably (but it is not specified) by the source of the music, the regulation refers to speakers rather than the noise generating component of the system or any amplifier thereafter. From a scientific basis, precision would have been preferable to presumption.

If the source of music is indeed speakers, then the music level requirement does not specify whether 85dB(A) is a sound power level or a sound pressure level at some distance. Noise measurements may only be undertaken at a distance from a noise generating source, so the microphone can measure the pressure change. What a noise meter measures is the sound pressure level at the point where the microphone in that meter is situated. If the music level requirement is a sound power level, it would then be necessary to calculate that value from a sound pressure measured at a distance. Typically, noise limits imposed by way of licensing and planning conditions are sound pressure levels measured at a defined location, because those are enforceable and precise. The issue with the music level requirement is that if (which is unknown) this is a sound pressure level, there is no indication of where the measurement should be taken.

A sound pressure level taken at 5mm from a speaker at 85dB(A) (the closest that a noise meter could sensibly be put to the source) will reduce through propagation over distance, so by 3m away it would be nearer to 50dB(A), which is well below levels of speech at 60dB(A) at 1m away. If the aim is not to have patrons not to raise their voices, then a 5mm level would result in music being masked by normal speech: so low as to be ineffective as ambient music. So if the music level requirement is to be interpreted as requiring a sound pressure level measurement as close as possible to the speakers, the effect would be to limit music levels to a disproportionately low level. A more realistic distance would be 1m.

Thirdly, these measures affect many tens of thousands of venues. Determining compliance requires properly calibrated equipment and professional expertise. Measurements taken with anything of lesser standard than a Type 2 instrument, or by an unqualified person, are most unlikely to be reliable. The microphones on smart phones are simply not good enough and cannot provide accurate results, and should not be used even in an indicative capacity.

Given that the purpose of the music level requirement is to mitigate the increased risk of virus transmission associated with aerosol production from raised voices, it would have been more appropriate to focus a test not at the source of the music but at the customer areas where the music could be heard. A level not higher than LAeq,1min 70dB(A) is the upper level where speech would generally become raised, and this could be quite easily estimated by a subjective test, with two people socially distanced at 2m. Increased vocal effort shows itself by exaggerated lip movements and gesturing as well as increased projection. These are the things that I understand cause aerosol spread, and are the things that, in my opinion, premises should be focusing on.

The Healthy and Safety Executive test for workplace noise is similar to the test I suggest above. Where the test indicates the music is too loud then a measurement or assessment is undertaken, or levels should be reduced until no raised vocal effort is noticeable. For a competent and robust approach that would be defensible I would suggest the following:

1. The subjective test I propose should be regularly carried out. If indicative of levels being too high then measurements should be taken.
2. Measurements should be taken by a calibrated sound level meter that is at least a type 2 instrument, by a suitably qualified person (as defined above).
3. The measurement should be made at the closest position where a member of the public or staff could be to a speaker, over a period of not less than 5 minutes with no other sound interfering with the measurement.
4. The LAeq levels should be used to give the value to be compared with the limit 85dB(A) over a duration of at least a minute with a section of music reflective of the type of music being played and worst case part of the track.

CONCLUSIONS

(Charles Holland and Peter Rogers)

It is important that regulatory requirements are effective to promote the objective of the regulation. Given that the government’s intention is to convert what was guidance into regulations, breaches of which give rise to criminal sanctions, it important that they are clear and easily enforceable, as well as being effective.

In our joint opinion, the music level requirement fails all three requirements.

Firstly, it is not clear. The music level requirement does not specify:

• the parameter to be used (average or maximum);
• the duration of measurement (if an average);
• whether the level s a sound power level or a sound pressure level;
• the distance from the music source (if a sound pressure level).

Secondly, it is not easily enforceable. Breach of the requirement can only be made out with expert evidence based on scientific measurements. There is significant scope for debate as to what sound would be the music level requirement.

Thirdly and finally, it is not effective. It would have been more appropriate to focus on customer areas, not music sources, and to provide a test which did not require significant expert input to see if an offence was being committed.

Charles Holland MIOL (Barrister, Francis Taylor Building, Inner Temple and Trinity Chambers, Newcastle) www.cholland.com

Peter Rogers BSc(Hons), MSc CEng FOIA FRSA MIOL (Managing Director, Sustainable Acoustics Ltd ) www.sustainableacoustics.co.uk