FPN Lawfulness?

gotmyhandsfull

My wife and I have launched a small business. We had some advertising boards made, intending to use these for marketing at sponsored events etc. A staff member acted independently, displaying several in public. This came to light when 3 X FPN's, each with a £100.00 charge, were forwarded by the local authority, to our Limited company, resulting in the immediate recovery of the boards and advice to our employee. They were affixed to street furniture with cable ties, which were recovered with the signage, so no litter or damage was caused. Our business is in it's infancy and is haemorrhaging money, so we are not best placed to throw money away, and as we have some knowledge of advertising regulations, would not have authorised the use of the signage in these circumstances.

THE FPN's have been issued under Section 44(1) of the Anti-social behaviour Act 2003.
Section 43 of the Act relates to Penalty Notices for graffiti and fly-posting, stating:
43(1) Where an authorised officer of a local authority has reason to believe that a person has committed a relevant offence in the area of that authority, he may give that person a notice offering him the opportunity of discharging any liability to conviction for that offence by payment of a penalty in accordance with the notice.
Reading further detail of the Government guidelines in relation to the legislation, this directs that an FPN may only be issued to a person that the issuing officer has reason to believe is responsible for personally placing or affixing the offending material.
The explanatory notes for the act state:
104. Section 43-47 give authorised local authority officials the ability to issue fixed penalty notices to offenders who have perpetrated acts of graffiti or fly posting. The intention is to levy the penalties only on the persons actually committing these acts, and not in the case of fly-posting on the person (unless he is one and the same) whose goods or services are advertised on the poster.
Every reference relates to a person.

Representations have been made to the Local Authority, that the use of FPN's is an abuse of process, however, the response advises that:
"You state in point one that a Fixed Penalty Notice may be issued to a person personally affixing or placing the unlawful advertisement in question. This is correct. However, in UK law, a Limited Company is determined to be a separate legal entity in it’s own right, and in effect carries the same status as “ a person”. Where legislation refers to “a person” this can also refer to a limited company. Certain legislation does have separate penalties for corporate entities but this is not the case here." The manager that responded states that they have successfully prosecuted several businesses after FPN's have not been resolved, though question whether anyone has ever challenged the issue on this basis?

Having read the guidelines in detail, I can find no reference to service of FPN's on a business, other than reference to entirely different legislation, relating to a Community Protection Notice and under section 43 of the Anti-Social Behaviour, Crime and Policing Act 2014. This directs that a CPN may be served on the appropriate person of a business (examples of appropriate person are given as small business - owner, or Supermarket - Manager), requiring the removal of advertisements. If that is not adhered to then an FPN may be issued to the person. Though different legislation, it is intended to be used to address the same act. The specific refence to a business tends to infer that may be the appropriate legislation to use to deal with businesses, and that S44(1) is actually intended to be used if the person posting/affixing is identified.

The crux of the matter relates to the lawfulness of the issue of an FPN, issued under Section 44 (1) of the Anti-social behaviour Act 2003, to the business. Have the notices been lawfully issued to a business, or are they only to be issued to a person and the Local authority are using their corporate might to intimidate us into payment of a charge that has not been lawfully applied? 

Le_Kirk

Since we concentrate on parking charge notices from unregulated private parking companies, you would be better off taking this over to our friends on Pepipoo.com as they are the experts on council and police issues.

You will need to sign up on Pepipoo with a non-Hotmail email address before reading the FAQs, then posting both sides of your PCN with your query.

Private

http://forums.pepipoo.com/index.php?showforum=60

Council

http://forums.pepipoo.com/index.php?showforum=30

Police

http://forums.pepipoo.com/index.php?showforum=5

Umkomaas

I don't think this has anything to do with parking (of any variety) at all, it's about fly posting of advertising boards. PePiPoo won't deal with that subject, maybe LegalBeagle forum would be a better bet. 

Grizebeck

Umkomaas said:

I don't think this has anything to do with parking (of any variety) at all, it's about fly posting of advertising boards. PePiPoo won't deal with that subject, maybe LegalBeagle forum would be a better bet. 

I think that forum is absolutely pants
You ask a straightforward question and people want the full backstory. Plus replies are hit and miss

Umkomaas

Grizebeck said:

Umkomaas said:

I don't think this has anything to do with parking (of any variety) at all, it's about fly posting of advertising boards. PePiPoo won't deal with that subject, maybe LegalBeagle forum would be a better bet. 

I think that forum is absolutely pants
You ask a straightforward question and people want the full backstory. Plus replies are hit and miss

Any other suggestions for the OP?

Grizebeck

Umkomaas said:

Grizebeck said:

Umkomaas said:

I don't think this has anything to do with parking (of any variety) at all, it's about fly posting of advertising boards. PePiPoo won't deal with that subject, maybe LegalBeagle forum would be a better bet. 

I think that forum is absolutely pants
You ask a straightforward question and people want the full backstory. Plus replies are hit and miss

Any other suggestions for the OP?

Yes
This is where professional legal advice should be sought or a law centre might be an idea.