By Dave Hunter
The case in question, Nelson v Renfrewshire Licensing Board, saw publican Paul Nelson of the Kelburne Bar in Paisley appeal against a suspension of his premises licence.
Although sheriff Paul Pender of Paisley Sheriff Court ruled in Nelson’s favour, there are still fears that, by and large, smaller operators continue to be at a disadvantage compared to larger companies.
Scottish Licensed Trade Association chief executive Paul Waterson welcomed the Paisley ruling, but added that “whenever there are issues the boards will certainly still look more favourably at bigger companies”.
“This whole process shows that there are problems within the (Licensing) Act itself,” said Waterson.
“It shows that boards often need these types of decisions before we can get some sort of consistency in the system.
“I think we’ve still got this two-tier system in place, that will continue despite this. I don’t think it’s going to allay the fears of the individual (operators).”
Waterson’s comments were echoed by licensing lawyer Jack Cummins of legal firm Hill Brown.
“Regrettably, there’s still a two-tier system based on operators’ resources,” said Cummins. “No matter how strong an appeal case looks, litigation always carries a risk – and for some businesses with limited funds that risk, even if small, might not be acceptable.”
The Renfrewshire board originally imposed the suspension earlier this year, after staff at the Kelburne Bar were found to have held a ‘lock-in’ after hours with several customers. Premises licence holder Nelson, who was not present at the time, appealed the ruling on the grounds that the staff responsible had already been dismissed and a new manager recruited.
Ruling in Nelson’s favour sheriff Pender said that the board “erred in law” when it imposed the suspension. He overturned the suspension and awarded Nelson expenses.
He added: “As a matter of general practice I think it is wrong that a board should order suspension immediately or even, as in the present case, the following day.”
The decision follows a similar ruling from the Court of Session in April, which overturned a licence suspension imposed on a Lidl store in Glasgow.
Stephen McGowan, head of licensing at law firm TLT, said the Nelson ruling “is yet further confirmation that the role of a licensing board is not to punish for past misdeeds but only to take punitive action in order to safeguard the licensing objectives”.
“A licence should only be suspended if that period of suspension is necessary to allow for remedial or corrective actions to be taken to protect the objectives,” said McGowan.