Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN. Click on questions below to reveal answers.
Q: The hotel I work for has recently started to cater for weddings. There’s a fairly large unlicensed area in the grounds which can be directly accessed from the function suite. In fact, that’s the only means of access. We’ve been allowing the guests to take their drinks outside on the basis that the premises licence has an off-sales facility. In other words, the alcohol is purchased at the bar for off consumption. There’s a local byelaw in place prohibiting the consumption of alcohol in public places anywhere within the council’s area. Management has taken the view that our garden area isn’t “public” because it’s privately owned and we have total control over admittance, but the local licensing board sees it differently. Are they right to say that we’re breaking the law?
A: This is undoubtedly a very troublesome area. I’m aware of a case in which an argument of the sort you describe came to a head with the licence holder being threatened with prosecution for breach of a byelaw unless the consumption of alcohol was confined to the licensed premises. Both the licensing board and the owner of the business obtained conflicting opinions from very experienced licensing counsel. The result was a stalemate; and, from memory, the licence holder felt obliged to back down.
While the legal position is simply unclear, I’m inclined to the view that hotel grounds in private ownership, from which members of the public may be excluded by the owner (allowing, of course, for legislation prohibiting various forms of discrimination) are not “a place” to which the public has access in the sense intended by byelaws of this type. The whole point of the byelaws was to prevent antisocial behaviour caused by alcohol consumption in streets, public parks and so on. That said, if, as appears, the board is sticking to its guns, and you don’t fancy being a test case, I’d bite the bullet and vary the licence to include the outdoor area.
Q: I was having drinks with my friends in my local pub. The closing time is 12am and they called last orders at 11.45pm. We ordered a pint and a vodka each. The barman then started hassling us to hurry up and drink our drinks or he was taking them away. Do we have the right to stay and consume our drink until 12.15am, ie. 15 minutes after closing time, or do we have 15 minutes from when last orders were called?
A: Where alcohol is purchased within licensed hours, the law allows the drink to be consumed “at any time within 15 minutes of the end of any period of licensed hours”. So, the barman could have allowed you to consume the drinks until 12.15am. The fact that he appears not to have done so is, of course, an example of appalling management. The best advice I can give is to give this place a miss in future.
Q: My son and I have revamped a pub/restaurant and before opening to the public plan to have a night for family and friends to celebrate with us. After giving them food and drinks the bar will then be opened. We have a licence for children till 8pm but would that also apply to my grandchildren for this closed door event?
A: Although you’re intending to hold a private function to which the public will not be admitted, I’m afraid you’re stuck with the terms of the premises licence operating plan governing access by children (up to age 15) and young persons (aged 16 and 17). In all likelihood, the licensing board would be prepared to allow a variation of the licence so that under 18s could be present on the premises until the conclusion of a function. Since that amounts to a ‘major’ variation, I doubt whether you would be able to get it considered in time for your pre-launch party. Nevertheless, it would be a good idea to take this step so that you won’t be caught out in the future.
Q: I am looking for some assistance regarding personal licences. Firstly, is it illegal to hold more than one personal licence? Secondly, am I correct in saying that a personal licence issued in England is not valid in Scotland?
A: An individual may only hold one personal licence. If a further licence is issued it is treated as “void” and requires to be surrendered. Passing off a void personal licence as valid constitutes an offence. In relation to your second question, you correctly state the position.
Q: My pub is due to be sold on at the end of November and the land used for a residential development, but I want to keep trading up until the last minute. The annual premises licence fee is due to be paid on October 1, and as the licence will not be transferred my local council says that I would not get a refund for the unused ten months of my fee. Is this right? Surely I cannot be charged for a whole year?
A: I’m sorry to tell you that the council is correct. There is no provision in the legislation for a refund. In fact, the fee continues to be payable even where a licence has been suspended.
Q: A petrol station down the road from my pub has recently gained a licence for its shop and the owners have erected a banner on the side of the building advertising the range of wines and beers they now offer, along with pictures of some of the products and their prices. Is that legal?
A: The location of licence holders’ alcohol promotions is tightly controlled. A promotion “in connection with the premises may not take place in the vicinity of the premises”. The “vicinity” means the area extending 200 metres from the boundary of the premises (no doubt wide enough to cover most supermarket car parks), so there seems little doubt that the banner breaks the law.
Q: I’m a bartender who has just started a new job at a local pub where the owners refuse to hire door staff, despite the pub attracting some questionable clientele. The bar staff seem to be expected to take care of any problems that occur. What should I do if I ask a problematic customer to leave the premises and they refuse? Am I allowed to physically remove them? The owners have said they don’t want to involve the police.
A: On the face of it, the law is on your side when it comes to removing disruptive customers – but putting it into practice is a different matter. Section 116 of the Licensing (Scotland) Act 2005 provides that it’s an offence to behave “in a disorderly manner” on licensed premises and refuse or fail to leave on being asked to do so by a “responsible person” or a police officer. It goes on to say that, in the event of non-compliance, an “authorised person” may remove the person and “if necessary, for that purpose, use reasonable force”. The police must assist if asked to do so.
I have real reservations about the use of force. When a Holyrood committee was looking at a similar power, one MSP called it “the Rambo provision”. There was a concern that the power could be used disproportionately. The Scottish Government rep’s response was that ‘a publican’ needed to be able to use reasonable force in order to keep an “orderly house”. Somehow that conjures up in my mind scenes of chaos in a wild west saloon. In any event, I’m of the view that police assistance should be sought. While “reasonable force” is authorised, as any lawyer will tell you, the interpretation of “reasonable” is apt to lead to be problematic. There may well be some protection from a CCTV system recording the removal of the troublesome customer. But, while you don’t want to fall out with your bosses, when faced with the prospect of using force you have to weigh that up against the possibility of an assault charge.
Q: I’ve just submitted an application for a personal licence and the licensing board’s office has told me that, because of “statutory policy” it could be up to nine months before it’s granted. It seems a long time for a straightforward application – I have no convictions so no hearing’s needed – and I’d like to know if it’s correct?
A: Amendments to the Licensing (Scotland) Act 2005 will give boards nine months to determine certain types of applications; and if the board misses the deadline without good reason, the application will be deemed to have been granted. The provision of a time limit is apparently intended to implement European regulations requiring applications for “authorisations” to be processed “within a reasonable period”. On no view is a period of nine months anywhere near “reasonable”. But in your case that’s academic because the changes have yet to be brought into effect. If you haven’t got a result within three months you should politely ’chase’ it up.
Q: I plan to hire a function suite where alcohol will be served from the bar. There will be children at the function. Someone said that although it’s a private function kids will need to leave the premises by 10pm. Is this true?
A: That could well be correct. The operating plan will set out the ages of children and young persons who can be admitted to the premises; the terms on which they may be admitted; the parts of the premises to which they have access; and the access times. In my experience, boards will generally allow supervised under-18s to attend pre-booked, private functions for the duration of the function, but you need to check with the person hiring out the function suite. I remember one board appeared determined to impose a 10pm watershed and I was obliged to point out that it could result in a bride or groom having to leave their own wedding reception.
Q: I am looking to take over a shop with an alcohol licence and turn it into a takeaway. It’s located next to a busy night venue. Could I sell alcohol to customers before 10pm and allow them to pick up the products later?
A: It sounds like a great commercial proposition – except for a fundamental obstacle. The sale of alcohol before 10pm would, of course, be perfectly legal but it’s an offence to allow alcohol to be taken from licensed premises outwith licensed hours. There’s one exception: alcohol can be carried out within 15 minutes of the end of licensed hours provided it’s not in an open container.
Q: My home backs onto very popular licensed premises. On occasions they hold private parties in their private room. The only access to this area is at the back of the building which is visible from my home. Noise travels in this area. They have had late parties till 5am. I called once to complain and was told it was an unauthorised member of staff allowing the drinks to be served and they offered me a free meal. It happened again and I observed one of the owners in attendance. Can an owner hold a private party and serve drinks after the end of licensed hours? It is also a restaurant so they might have supplied food, but I know the chefs usually leave the premises around midnight.
A: I’m assuming that the private room forms part of the licensed premises, in which case it appears that the law is being broken. The ‘old’ licensing Act allowed the consumption of alcohol by the licence holder’s “private friends” outwith “permitted hours”, provided that no money changed hands. There’s no similar dispensation in the Licensing (Scotland) Act 2005 and the supply of food is totally irrelevant. If you point this out to the owners I would expect that to be the end of the matter.
Q: Can a designated premises manager in Scotland drink alcohol in the pub they work in when they are off duty?
A: Yes – but with a word of warning. The 2005 Act provides that, “Any responsible person in relation to any relevant premises who is drunk while on the premises commits an offence”. The expression “responsible person” includes the premises manager, and it doesn’t make any difference that he or she isn’t in charge of the premises at the time.
Q: The terminal hour in my club is 1am on Fridays and Saturdays. Does that mean we can sell alcohol until 1am with drinking-up time finishing at 1.15am or should people have ‘drunk up’ by 1am?
A: No matter the terminal hour, 15 minutes drinking-up time is added for the consumption of alcohol provided it was purchased during licensed hours.
Q: There have been several incidents in my pub over the past few months and at the end of April the police applied to the licensing board for a review of my premises licence. The application says there has been “a failure to exercise proper managerial control” leading to a breach of the licensing objectives. With the ‘fit and proper person’ test reinstated, does this have consequences for my situation?
A: The reintroduction of ‘fit and proper’ took effect from May 15 but it has no effect in relation to a review application received by a licensing board before that date. Otherwise, if a board makes a finding that a licence holder is not ‘fit and proper’ it must revoke the licence. So, you’re not affected by the change – but that doesn’t mean that you’ll keep your licence. Revocation is still an option available to the board if it considers that action requires to be taken and that a warning or suspension wouldn’t mark the gravity of the situation.
Q: When I was doing some supermarket shopping recently the checkout operator refused the sale of some wine because she said that my 19 year old daughter didn’t appear to be 25 or over and couldn’t produce any proof-of-age documentation. Was that refusal legal?
A: Challenge 25 requires steps to be taken to establish the age of a person attempting to buy alcohol if it appears that the customer may be under 25 (a higher age can, of course, be specified in the age-verification policy). Here, of course, your daughter wasn’t the person attempting the purchase, so, on one view, the checkout operator was being over-cautious – but presumably concerned that a so-called ‘agency purchase’ was taking place for a person who might be under 18. It’s not hard to see why this was annoying – but I’m always reluctant to fault staff who take a risk-averse decision, even if it does seem extreme.
Q: I have been invoiced by the local council for four years of premises licence annual fees unpaid by the previous owner of my pub. The council insists that the fees have now become my responsibility. What is my legal position?
A: I am aware at least one council is playing catch-up with fees it failed to collect over the past several years. In my view, looking at the relevant regulations, the responsibility for payment falls on the licence holder at the time the fee fell due. However, it may just be a matter of time before you’re threatened with a review of your premises licence if you fail to pay. That would produce an odd result. Any sanction imposed following a review is required to address one or more licensing objectives. Boards will argue that all the objectives are engaged where fees haven’t been paid: councils need cash to administer the system. But perhaps there’s an element of the pot calling the kettle black if an authority hasn’t taken effective steps to fund its licensing function over several years.
Q: Is it legal in Scotland to sell a double 35ml measure?
Gin, rum, vodka and whisky must be sold in “specified quantities” – 25ml or 35ml – and may be sold in multiples of these quantities.
Q: Apologies if I have ever missed this query in your SLTN column. Can you clarify the position of guests taking alcohol into hotel bedrooms for personal consumption where the premises is fully licensed to sell alcohol but unaware of such an occurrence taking place. Unless I am mistaken it appears the law allows the loss of sales to the establishment, allows consumption of an unknown substance at an uncontrolled level – yet holds the licence holder, who is more than likely to be unaware of the event as bottles taken to the rooms are never declared, responsible and potentially liable. I understand we can put notices in bedrooms advising guests to drink sensibly, etc. However this would appear to be fairly futile and leaves the licence holder exposed to risk.
A: I did answer a similar question earlier this year when I suggested that those attending functions might be stopped from bringing their own alcohol onto the premises by means of a suitable condition in the booking contract with the organiser. It would, of course, be open to you to adopt a similar approach in your terms and conditions, but I can easily see that, short of a ‘stop and search’ policy, enforcing the condition in a hotel environment presents something of a challenge. You are, of course, correct in supposing there’s no law that prevents hotel guests from smuggling alcohol into their bedrooms; and of course some establishments actively encourage in-room drinking from mini-bars – although at prices that are unlikely to lead to excessive consumption. I recall that one luxury hotel used to charge £20 for a bucket of ice ordered without alcohol – no doubt in an attempt to stem the problem you seem to have encountered.
Q: I used to manage a club in England and when the clocks moved forward in the spring we lost an hour’s trading unless we applied for a temporary event notice (equivalent to an extension of the licensed hours). I’ve just started work as the premises manager at a late night venue north of the border. We’re licensed at the weekends until 3am. What’s the position under Scottish licensing law?
A: When the clocks move forward – or back – the change is simply ignored for the purposes of licensed hours. The Licensing Act provides that a period of licensed hours “ends at the time it would have ended had British Summer Time not begun or ended”. So, when the time goes forward by an hour at 1am on Sunday March 26, your premises can continue to sell alcohol for two more hours. There’s no need to apply for an extension. Conversely, when the clocks move backwards at the end of October, you do not gain an extra hour.
Q: I was refused a premises licence around six months ago. Is there anything to stop me trying again?
There’s a one-year embargo on a further application for the same premises, unless (a) the licensing board decided to waive that ban when they refused the application; or (b) the board is satisfied there has been “a material change of circumstances”.
Q: I own a pub in which I would like to host my daughter’s 18th birthday party. The pub will be closed on the night in question and will not sell anything at all. We intend to provide a buffet meal along with beer and wine, none of which will be subject to any form of charge. Is this allowed or is there a law or regulation I would be breaking?
A: There’s nothing illegal, but the party would require to take place during licensed hours. You could apply to the licensing board for a ‘one off’ extension if you planned to carry on after your normal closing time. That extension might be an essential step because, subject to a number of exceptions, the consumption of alcohol outwith those hours is an offence – even if no money changes hands. The Licensing (Scotland) Act 1976 provided an exemption where alcohol was supplied to “private friends” of the licence holder who were “bona fide entertained by him at his own expense”. But the dispensation wasn’t carried over to the Licensing (Scotland) Act 2005; and in the early days of the new legislation a number of operators found themselves in front of the licensing board for carrying on the long-established practice of ‘staff drinks’.
You should also check whether your operating plan covers the presence of any under 18s who will be attending the party. There’s an argument that restrictions on the admission of under 18s only apply when alcohol is sold for on-consumption, but this raises questions too complicated to explore here – so you should speak to your lawyer if the operating plan doesn’t cover you.
Q: I know that a premises licence application needs a food hygiene certificate if you plan to supply food on the premises but what’s the position where a pub doesn’t have proper kitchen facilities? Can the business buy in food from a certified outside caterer?
A: I’m not sure what you mean by a “certified caterer”, but there’s nothing to prevent a licence holder outsourcing the supply of food for customers. A number of my firm’s clients buy in buffet food when they’re catering for a function. However, while an application for a provisional premises licence need only be accompanied by a provisional planning certificate, a “confirmation” application to bring a provisional licence into effect must be supported by a Section 50 food hygiene certificate if food is to be supplied on the premises: it’s of no consequence that the food isn’t actually prepared on site. You should also be aware that any business selling food on premises must be registered with the local authority.
Q: I work for a community arts theatre in Scotland. We have a bar and restaurant which hosts functions on a regular basis. My question is, what can I do if I discover that someone attending a function has brought their own supply of alcoholic drinks onto our on-licensed premises? This has happened on a number of occasions, and it’s starting to become a problem with obvious revenue loss implications.
A: I suggest that you make appropriate provision in the terms and conditions set out in your booking contract with those looking to hold a function at the venue, making it clear that anyone attending an event who brings alcohol onto the premises will be required to deposit it with management until they leave.
Q: I’m a member of a community sports club. If we hold birthday parties for members’ children do we need to apply for an occasional licence every time? The parties would take place in our hall, not the bar area, and the only persons attending would be the kids and their parents.
I understand that the club has a premises licence, so the short answer is: carefully check the operating plan. That will set out the part or parts of the premises to which children (and young persons) are allowed, the times when they’re allowed access and the access terms (e.g. “for the purpose of attending a function for the duration of the function while accompanied by a responsible adult”). Certain types of clubs holding a premises licence may apply for an occasional licence – essentially for the purpose of allowing alcohol to be supplied to non-members without the usual record-keeping formalities – but even if your club falls into the relevant category I can’t see any need for an occasional licence to cover the sort of function you describe. So, it’s all down to what’s allowed by the operating plan contained in your premises licence.
Q: I have just taken over a pub. I was wondering if it’s legal to do alcohol loyalty cards/discount cards. I’ve seen these schemes operated elsewhere. Are they just ignoring the law?
A: In principle, there shouldn’t be a problem with a discount card scheme. The law in this area was settled a while back when a licensing board handed a warning to a pubco operating such a scheme for the student market. The licensing standards officer argued that dual pricing breached the ban on price variations lasting less than 72 hours. In his view, bar prices in the premises constantly fluctuated according to whether a drink was, or was not, purchased by a card holder. Following an appeal, the sheriff principal ruled in the licence holder’s favour. If the variation argument was sound, it would of course have prohibited other forms of differential pricing, such as might be operated in premises consisting of a lounge bar and a public bar. However, any operator considering such a scheme should take expert advice. The position in relation to loyalty cards is rather different and somewhat trickier. Again, proper advice is essential.
Q: I am an assistant manager of a hotel with a large restaurant and bar. We are owned by a large chain and keep getting told to try and cut wages. Although food and drink sales are in growth the hotel is not. Recently I have been manager, waiter and chef on the same shift because we are run so tight. I was wondering about the legal implications. How many employees should be in the building at one time during trading hours?
A: There’s no hard and fast rule, but it’s obvious that low staffing levels could easily result in the licence holders and the premises manager being unable to provide the quality of management and supervision that’s needed to ensure compliance with licensing, as well as health and safety legislation with unpalatable consequences.
Q: I work at a venue without a premises licence. However, we regularly hold drinks receptions and dinners at which alcohol and soft drinks are served.<br />
No money changes hands, but clients are invoiced for the alcohol on a consumption basis. Are we in breach of the regulations because we need a licence for this? My boss says that we don’t need a licence because there’s no cash bar.
A: Your boss is wrong. The supply of the alcohol results in a sale. It’s of no consequence that the sale is, in effect, made on credit. These events need an occasional licence. Unlicensed sales leading to a prosecution lead to a potential fine of up to £20,000 and/or six months’ imprisonment.
Q: When I was shopping at my local supermarket recently, the checkout operator handed me a voucher offering a 15 per cent discount if I visited the company’s website and spent at least £100 on alcohol. Is that promotion legal?
A: Drinks promotions are confined to an alcohol area approved by the licensing board (the displays in the body of the store and/or an “inaccessible area” such as a kiosk) or a separate room used for alcohol tastings.
However, in my view the promotion you describe is legal because the restrictions on in-store promotions are directed at “any activity which promotes, or seeks to promote, the buying of any alcohol sold on the premises for consumption off the premises” (with my emphasis and subject to a number of exceptions which aren’t relevant to this question).
In this case, those who take advantage of the promotion do so not in the store but on the website.
I suppose, at a stretch, it might be argued that the alcohol available to purchase on the website with a discount is also available for purchase “on the premises” (as might often be the case), but I very much doubt whether that interpretation of the Act would hold water.
Q: Sometimes I am asked to supply off-sales to my pub’s patrons at the end of the evening. They have started to complain that I am charging them on-sale prices for off-sales. I only have prices on display for on-sales, but am I obliged to charge a different, cheaper price for off-sales?
A: There’s absolutely no legal requirement to sell products more cheaply for off-consumption. If you do decide to operate two price lists (and that looks very unlikely), the rules regarding price variations apply to both. I’m assuming that your off-sales hours end at 10pm (the maximum possible terminal hour) so remember that off-sales can’t be taken from the premises after 10.15pm.
Q: The boss in my pub is planning the promotion of a particular brand of beer. He reckons that he can get round the ban on ‘buy one, get one free’ offers by giving a scratch card to customers buying this product with a free bottle as the prize. I’m pretty sure this is illegal. Am I correct? What are the possible consequences if he goes ahead?
A: The Licensing (Scotland) Act 2005 bans a promotion that offers alcohol as a “reward or prize” unless “the alcohol is in a sealed container and consumed off the premises”, so you’re quite correct: it is illegal if the free bottle is consumed on the premises. As to the consequences, the licence holder would be breaching a mandatory condition of the Act by carrying on an “irresponsible promotion”. That amounts to a criminal offence, namely, the sale of alcohol except under and in accordance with a premises licence. A person convicted of that offence potentially faces a fine of up to £20,000, six months’ imprisonment or both, as well as a review of the premises licence. There’s also a risk that personal licence holders working on the premises could be reported to the licensing board by the chief constable for acting “in a manner which is inconsistent with any of the licensing objectives”.
Q: Our local bingo hall is going to give away a free drink, a glass of wine for one person or a bottle for two.<br />
Is this legal?
A: If the bingo hall has a premises licence authorising the sale of alcohol, what you describe is permissible, but only provided it’s not linked to the purchase of a drink (even a non-alcoholic drink).
On the other hand, if the premises isn’t licensed the supply of the wine would be an offence, even though it’s given away without payment.
Q: We have an off-sales licensed shop.<br />
We would like to offer a small selection of pre-packed dips and salsas to complement the wines.<br />
Can we sell these both as stand alone items or in hampers or gift combinations?
A: In the authorised alcohol area you can display a product other than alcohol if it is (a) a non-alcoholic drink; (b) packaged with, and may only be purchased along with, alcohol; (c) a branded non-alcoholic product; or (d) a newspaper, magazine or other publication.
Hampers and gift combinations would fall within category (b); but dips and salsa could not be displayed for individual sale.
Q: My pub is licensed until 2am. It’s our practice to call ‘last orders’ at 1.45 am.<br />
Can we sell alcohol after ‘last orders’ have been called if we wish to do so?
A: Yes, the pub may continue to sell alcohol right up until the end of licensed hours, and customers can then consume their purchases during the fifteen minute ‘drinking-up’ period that follows.
However, I reckon it’s not a great idea.
It puts pressure on customers to drink quickly and may generate complaints that there wasn’t enough time to finish their purchase.
Q: I’m a promoter for a nightclub. A rival has launched a promotion offering a free drink upon entry before a cut-off time. Looking at the banned “irresponsible promotions” in the Licensing (Scotland) Act 2005, it seems alcohol can’t be given away for free when there’s a condition that a drink is purchased. So, it’s legal to provide alcohol if there is no initial requirement to purchase a drink, just merely attend the venue before a certain time?
A: You’ve more or less answered your own question. There’s no ban on the supply of free alcohol in the 2005 Act except in two situations, where: (1) an alcoholic drink is supplied free of charge or at a reduced price on the purchase of one or more drinks (whether or not alcoholic drinks); and (2) the purchase of one or more measures of an alcoholic drink leads to the supply of one or more extra measures free of charge or at a reduced price. So, as your research has revealed, the ban only operates where a purchase is involved. That said, there’s an outside possibility of a challenge on the basis that the promotion offers alcohol as “reward” for early entrance to the club – but regular readers will have gathered I reckon that view is totally unsupportable.
Q: When I was having a drink with friends recently in a branch of a well-known pub chain we were told by a member of staff that we weren’t allowed to take away an unfinished bottle of wine. Was that refusal legal?
A: Provided the pub’s premises licence authorises the sale of alcohol for consumption off the premises, the carry out would have been legal. So, either off-sales aren’t permitted or you ran foul of some management policy. For completeness, I ought to add that alcohol can’t be taken from licensed premises outwith licensed hours, unless: (a) it was sold during licensed hours; and (b) is taken away within 15 minutes of the end of licensed hours in a closed container.
Q: I am a member of a sports/social club. Like most private members’ clubs we really need new members in order to survive and the doors will close permanently within six months if we do not act now. In the past we have advertised functions locally with posters advertising tribute nights and so on. That got us a ‘rap on the knuckles’ from the licensing board as we were advertising functions to the general public instead of just to our own members. We have learned from this error. However, our options for bringing in new members through other avenues are now exhausted. I firmly believe that we need to advertise going forward. As a private members’ club can we advertise for new members and promote the facilities we offer?<br />
Can you help clarify what content we can advertise?
A: It’s not hard to see why the club ended up in hot water as a result of the previous advertising activity, but in my view there’s nothing to prevent a campaign to recruit new members which promotes the amenities the club has to offer. It might even say that the club has a licence authorising the supply of sale to members and their guests. However, before you embark on that course, it would be very wise to discuss the advertising content with one of the local licensing standards officers.
There is a more radical solution. The club could ‘go commercial’; that is to say, change the premises licence so that the club no longer operates under the present constraints.
That course would involve the loss of some dispensations, principally a higher annual fee and the requirement to have a premises manager who holds a personal licence. Before taking that step, the club needs proper legal advice. You’ve told me where the club premises are situated, so I know that the licensing board will in all probability need an application for a new licence, while other boards are content to allow the current licence to be varied.
Q: It’s now quite common for supermarkets to provide till-printed vouchers offering, for example £5 off a £35 shop. There’s absolutely nothing to prevent customers buying alcohol and achieving the discount. Is this legal?
A: I’m aware that this subject was raised at a local licensing forum meeting and the forum’s legal adviser opined – correctly, in my view – that these vouchers can’t be viewed as alcohol promotions. If the voucher is alcohol-specific we enter a whole new area. The legality of these vouchers is something of a minefield. When the Scottish Government published guidance on promo bans a few years ago it included a “frequently asked questions” section. The answers to several questions were left dangling in the air, including those relating to vouchers and “loyalty points” for alcohol purchases. In fact, the guidance suggests that it could be left to licensing boards and standards officers to take a view on whether a promotion was “irresponsible”. This is an area which always calls for specialist advice.
Q: I work in a hotel where we sell wines by the bottle in our banqueting department. Are we able to sell the bottles at a set price all year round or do we need to sell the bottle by the measure prices we use in other parts of the hotel?
A: There’s nothing to prevent the operation of two price structures. The argument that alcohol pricing needs to be ‘linear’ now looks dead in the water. In other words, if a 250ml measure of wine costs, say, £8, a 750ml bottle needn’t be priced at £24. Similarly, there is no requirement to price a double measure of spirits at twice the cost of a single. However, a promotion is ‘irresponsible’ if it “encourages, or seeks to encourage, a person to buy or consume a larger measure of alcohol than the person had otherwise intended to buy or consume”. That, of course, rules out active ‘up-selling’.
Q: We are a small members-only bowling club with a function area sometimes hired out to non-members. Is it illegal to operate two different price lists for alcohol sales based on member and non-member rates? The relevant prices are clearly displayed at the bar.
A: There’s no problem with dual pricing provided that each set of prices operates in accordance with the rules governing price variations. So, once the different price tariffs have been set, any change in either tariff must be introduced at the start of a period of licensed hours and for the following 72 hours no further variations are permitted. (For off-sales, the price freeze only affects the price of the product that has been varied.) There are of course rules regulating the supply of alcohol to non-members in certain types of clubs except when an occasional licence is in effect.
Q: I’m planning to take over a restaurant currently offering Indian cuisine. In the short term at least, I won’t be carrying out any alterations to the premises, but I will be converting the menu to Italian food and changing the name. Are there any licensing implications I need to consider?
A: You can change the trading name at minimal expense by means of a minor variation application. However, the switch to Italian food might require a major variation, depending on the description of the premises in the licence. If the description states the premises operates as an Indian restaurant then, unless you are dealing with a very pragmatic licensing board clerk, you’ll have to go through the much more expensive process. It’s always been my practice to frame descriptions as widely as possible to avoid this sort of trap. A few years ago, I came across a case in which premises were described in the licence as “next door to a Woolworths shop”. Believe it or not, when Woolworths closed that triggered the need for a major variation.
Q: If we have a function in our bowling club for members and guests only (no one under 18) and we don’t need an occasional licence for this function do we need to have a licence holder on the premises?
A: Assuming that the club has a constitution containing certain provisions as set out in regulations, there’s no requirement for alcohol sales to be authorised by the holder of a personal licence (no matter the ages of those admitted), but staff engaged to sell or serve alcohol must have undergone mandatory training.
Q:Recently clubs in the city where I work have developed new fad drinks. For example, one is built from shots of spirits, fruit juice and an RTD and supplied in a pint glass. They seem to be a quick way of getting drunk. How does the Licensing (Scotland) Act 2005 and subsequent legislation consider the legality of these drinks? Are they considered cocktails? What combinations will a customer request next and where does the line of responsible service end? I’ve been highly suspicious of the drinks for a while now, as the cynical side of me thinks they are an easy way to get round the singles and doubles restrictions of the Weights And Measures Act. Are licensing standards officers comfortable with these drinks being served?
A: In terms of weights and measures legislation, gin, whisky, rum and vodka must be dispensed in 25ml or 35ml measures or multiples thereof. But, as you seem to have gathered, where spirits are sold in a combination of three or more liquids (as in a cocktail) that requirement doesn’t apply. There’s nothing in the 2005 Act that would provide a basis for ruling these drinks illegal – leaving aside a ban on promotions based on the strength of any alcohol. As far as I know, these mixtures haven’t engaged the attention of standards officers – but if they do lead to drunkenness on the premises there’s plenty scope for enforcement action.
Q: I’ve just started up a new coffee shop with an alcohol licence and I’m trying to get established. One of the things a marketer has suggested is that we contact all the local businesses and offer them a complimentary glass of wine or beer as an enticement to come in to see us. I know there are some issues in Scotland with giving alcohol away as it’s not promoting responsible drinking. Any pointers you have would be appreciated.
A: The Licensing (Scotland) Act 2005 prohibits promotions involving the free supply of alcoholic drinks in two situations: where the supply of the drink is conditional on the purchase of (a) one or more other drinks (even a non-alcoholic drink) or (b) one or more measures of the drink. But there’s no outright ban, so that in my view what you propose is legal. Be aware, however, that you might conceivably encounter the argument that your idea would amount to an “irresponsible promotion” because it “offers alcohol as a reward or prize” for consumption on the premises: in other words, a ‘reward’ for visiting your premises. That interpretation is misguided. This veto is intended to prevent alcohol giveaways as a result of some ‘achievement’ or success in a competition, such as a pub quiz. In fact, the notes accompanying the 2005 Act make it clear that certain promotions were outlawed with a view to “reducing the problems of binge drinking”. In short, provided there’s no ‘catch’ attached to the glass of wine or beer, you should be in the clear.
Q: There’s a notice in the bar at my bowling club stating that alcohol sales are allowed during the period between 12pm until midnight, but regularly the bar gets closed between 5pm and 7pm without any prior notice to members. Can this be challenged?
A: There’s no licensing law remedy here: I can only suggest that you take up your grievance with the management committee.
Q: My students’ union operates both a members’ club and a pub. Staff refuse to accept a North American driver’s licence as proof-of-age and instead insist on a passport. They don’t require this during the tourist season. Are they taking the right approach? Are photocopy passports acceptable? It seems a bit risky to go out carrying a passport.
A: So far as driving licences are concerned, staff can only accept a European Union photocard licence. The other acceptable proof-of-age documents are: (a) a passport, but not a photocopy; (b) a Ministry of Defence identity card (“Form 90”); (c) a photographic “PASS card” with a hologram issued under the national Proof of Age Standards Scheme; (d) a national identity card issued by an EU member state (other than the UK), Norway, Iceland, Liechtenstein or Switzerland; or (e) a “biometric immigration document”.
The types that will in fact be accepted is a decision entirely within the licence holder’s discretion.
Although there seems to be no requirement for pub customers to produce a passport during the tourist season, there must be a “Challenge 25” policy in place so that the required steps are taken to establish the age of a person seeking to buy alcohol if it appears that the customer may be less than 25 years of age. Those steps must involve asking for sight of an acceptable document.
Q: If I run a drinks promotion over three days can I restrict it to specific hours, for example, between 7pm and 9pm on Fridays, Saturdays and Sundays?
A: No: a price variation can only be introduced at the beginning of a period of licensed hours with the result that prices are “locked” for the following 72 hours. The rules are slightly different for on and off-sales. For on-sales, that price freeze applies to the reduced product and any other alcohol sold in the premises. For off-sales, the restriction only affects the price of the product that has been varied.
Q: I am in the process of starting up a business selling jams infused with alcohol and I’m not completely sure on where I stand in terms of needing a licence or who I am able to sell my jam to. The jam will be around 3 to 4 per cent ABV and will contain various spirits like whisky and brandy. I have asked my local licensing standards officer who advised me that his interpretation of the law was that only alcohol sold in a liquid form required a licence and therefore I could sell my jam without one. He did however state that I should seek legal advice. So my questions are: do I need a licence to sell my jam product and am I able to sell it to those under the age of 18?
A: My inclination is to agree with the standards officer, who correctly points out that for licensing purposes (including the age-restriction) “alcohol” is a liquid. That rules out products made with alcohol which are “solid” (such as brandy butter) or do not flow freely at a constant volume. Your jam looks to fall into the latter category but given the consequences of unlicensed alcohol sales (see previous question) you should take a further opinion from a lawyer who can properly evaluate the product’s characteristics.
Q: I work in a restaurant as an assistant manager and our restaurant just lost the licence because the owners didn’t renew it. They’ve told us to keep selling but just to regular customers. If I follow this instruction will I be in trouble?
A: Premises licences do not expire – although they “cease to have effect” in a variety of circumstances. Assuming that the licence for the restaurant has somehow been ‘lost’ you can be sure that selling alcohol to anyone will land you in trouble. A person who sells alcohol – or allows it to be sold – on unlicensed premises commits an offence punishable by a fine not exceeding £20,000, imprisonment for up to six months, or both.
Q: Am I allowed to sell spirits only in double measures?
A: Gin, rum, vodka and whisky can be sold in 25ml or 35ml measures or multiples thereof (with the same quantity offered through the premises). There’s nothing to prevent you serving 50ml quantities but it doesn’t sit well with the current drive to encourage the offer of small measures.
Q: I work in a pub. It has a premises licence but only one person has a personal licence, and that person is never on the premises. By law should there always be somebody on the premises with a personal licence? And if someone comes and does a check up, who is fined? The person working behind the bar or the premises owner?
A: The single personal licence holder to whom you refer can only be the premises manager. While he or she need not be present on the premises at all times when alcohol is sold it’s plainly impossible for premises to be ‘managed’ by someone who never bothers to put in an appearance. What’s more, as a “mandatory condition” of all premises licences, “every sale of alcohol made on the premises must be authorised (generally or specifically) by (a) the premises manager; or (b) another person who holds a personal licence”. Opinions differ as to whether there should always be someone present on the premises who holds a personal licence. But in the case of your pub, the only person capable of giving an authorisation appears to have abandoned all responsibility for the conduct of the premises. That’s a recipe for disaster, not just for the business but also the premises manager because he or she will almost certainly be held to account for any offences committed. However, there’s no question of you being “fined” just because you’re working without the support of a personal licence holder. The business owner needs a really loud wake-up call.
Q: I’m a member of a club and would like to know the drinking-up times. The police still say it’s 15 minutes but I’ve looked at some points and there’s a grey area because the consumption of alcohol after that time is only an offence if the person has been requested not to.
A: I don’t think there’s a grey area, but the law did undergo a significant change when the 2005 Act came into force. Previously, it was not an offence for a licence holder to allow the consumption or removal of alcohol outwith permitted hours but an offence was committed by the person consuming or removing the alcohol. Now, a person commits an offence if he “allows alcohol to be consumed on licensed premises, or allows alcohol to be taken from licensed premises” outwith licensed hours (subject, of course, to drinking-up time and various other exceptions). So far as the customer is concerned, as you say, the offence of consuming alcohol on, or taking alcohol from, licensed premises outwith licensed hours is only committed if that person has been requested not to do so by a “responsible person”.
Q: We have a busy function coming up. Can I get 17 year old waitresses from the franchised restaurant in our golf club to wash glasses? Is there a certain time they would have to be off the premises?
A: You’ll need to look at the operating plan contained in your licence and check the approved arrangements. Assuming young persons are permitted on the premises, the operating plan will specify the parts to which they have access and the terminal hour. Be careful, because I’m aware of a recent case in which a restaurant employed 17 year olds as waiting staff, permitted to serve alcohol under supervision, but unable to serve food. Why? The operating plan provided that young persons (and children) had access to “all public parts of the premises”. But that meant they had no access to the kitchen – not a “public part”.
Q: We are a small charitable trust running six events a year where about 40 people purchase one glass of wine during the programme interval. We pay for an occasional licence for each of these events – do we need to have a personal licence holder in respect of such limited activities?
A: An application for an occasional licence may be made by: the holder of a premises licence; the holder of a personal licence; or a representative of a “voluntary organisation”. Assuming that your applications are made by the trust as a “voluntary organisation”, the requirement to have alcohol sales authorised by the holder of a personal licence doesn’t apply – as it would if the licence was granted to a premises or personal licence holder.
Q: On reading your column in the September 17 edition of SLTN, it got me thinking of our bowling club. Every year for the past five we have had a Hogmanay party with invited guests only. The club is a licensed premises but the bar is not used (it’s BYOB). It’s a private bowling club and only members are invited. My question is are we breaking any laws? If so, how can we still have the event and comply with the licensing board?
A: I’m afraid the club is in the same position as the pub owner whose question I answered last month. Clubs meeting certain criteria are exempt from a number of provisions in the Licensing Act – but they’re still bound by the rules governing licensed hours, and the consumption of alcohol outwith those hours is (with a few exceptions, such as “drinking-up time”) an offence even if it’s not sold. What can you do? Check with the licensing board to find out whether you have “automatic” extra hours on December 31. If not, you’ll need to make an application to extend the licensed hours. Ask the board’s staff for a form and make sure you don’t miss the last submission date for Hogmanay events.
Q: I want to close my pub at 8pm on Hogmanay and have only my family and close friends in for a get-together. Kids will be present and I just want everyone to bring their own bottle so I don’t need to have staff on duty. Can you tell me the legal position on this?
A: Under the Licensing (Scotland) Act 1976, the ‘permitted hours’ didn’t apply where the licence holder entertained private friends at his or her own expense. The 2005 Act changed the position. Allowing for ‘drinking-up time’, the consumption of alcohol after the end of licensed hours is an offence, even at a party where no drink is sold. So, you may need to apply to the licensing board for an extension of hours, unless there’s a local arrangement giving you automatic extra hours for Hogmanay. You’ll also need to make sure that your operating plan covers the presence of children and young persons on the premises for the duration of the party. There’s an argument – too complicated to explore in this space – that restrictions on the admission of under 18s only apply when alcohol is sold for on-consumption, but I wouldn’t bank on it.
Q: Recently we had a test purchase at the shop, which our member of staff failed. Everything else, from the point of sale posters to paperwork, was in order. We have passed every test purchase up until now. What happens now?
A: A follow-up test purchase will take place. If the sale’s refused, I expect you’ll be in the clear. In a landmark appeal decision a few years ago, senior judges ruled that the suspension of a licence wasn’t an appropriate step for a single test-purchase failure where the retailer had taken diligent measures to prevent underage sales and a mistake was made by a properly-trained member of staff. In the light of that decision, if you pass the second test, it’s unlikely the police will apply for a review of your licence.
Q: I was thinking of providing free cardboard wine carriers in the alcohol aisle of my convenience store. I thought they might encourage bulk purchases. I’m up-to-speed with pricing rules, but I’m not sure about display restrictions, so do you see a problem here? Does the mandatory carrier bag charge apply?
A: In a publicly accessible alcohol area, a product other than alcohol can only be displayed if it’s (a) a non-alcoholic drink; (b) packaged with alcohol (and only for sale with) the alcohol; (c) a “branded non-alcoholic product”; or (d) a newspaper, magazine or other publication. Wine carriers could fall into category (c), but only if they carried the name or image of an alcoholic product. If they didn’t conform to that requirement, you’d be exposed to prosecution and (in theory) liable to a fine of £20,000 and/or six months’ imprisonment. That would lead to a review of your premises licence with the possibility of a sanction being imposed by the licensing board. Just to complicate matters further, you could display alcohol-branded items in the body of the shop outwith the alcohol area, but only if they were priced. My understanding is that you’re not obliged to impose the minimum five pence charge under the carrier bag regulations.
Q: Can a Scottish landlord bar a former member of staff from his pub on the grounds that they allegedly spread unsubstantiated rumours about the conduct of the landlord?
A: Yes, because you have a right to refuse entry as you please, provided that you don’t do so on a ground prohibited under the Equality Act 2010: race, gender, sexual orientation, disability, religion or belief, transexuality (‘gender reassignment’), pregnancy or maternity. The right to refuse entry or service – and the limitations imposed by that Act – were comprehensively covered in an SLTN article a while back.
Q:<b> </b>I operate a nightclub business in a mixed commercial/residential location and I’ve run into trouble with the police and local residents over dispersal problems caused by noisy customers at closing time. The police have already carried out an ‘intervention’ and if I don’t get a grip of this I reckon I’ll be called up before the licensing board and could see the hours cut. At the moment the club’s licence finishes at 2am. I’m planning to stay open until 2.45am or possibly 3am, with customers able to finish their drinks, listen to music – and maybe buy soft drinks and something light to eat – during the extra period. That would spread out the time over which people hit the street and could just make a positive difference. Do you see any licensing problems with that approach?
A: At the moment, “drinking-up time” is available in your premises until 2.15am provided that the alcohol was purchased before 2am. From that point, even if you’re not selling alcohol, it’s an offence to allow it to be consumed. So, in order to implement your idea – which might well have some merit – you’d have to make an application to the licensing board for a “non-minor” variation of your premises licence to extend your licensed hours.
If that course isn’t attractive and you were thinking of modifying your idea so that all bottles and glasses containing alcohol were cleared away by 2.15am – and getting that clearance totally complete might be tricky – be aware that the provision of soft drinks, food and entertainment could mean that you have to obtain a public entertainment licence from the local council. Just to complicate matters further still, if you were only offering food and non-alcoholic drinks a late-hours catering licence could well be required. You’ll have gathered that this is very tricky territory and it would be a good idea to consult your licensing lawyer, who might also suggest other steps you could take to deal with your current difficulties.
Q: I own and manage a hotel. During a recent police visit I was told that there’s a gap in the licence operating plan because I haven’t stipulated that I provide breakfast for my residents, although the bar doesn’t open until 11.30am. It seems that I’ll need to go through the expensive process of applying for a major variation of the licence to correct the omission. Before I go ahead, is this really necessary?
A: The operating plan contained with your licence sets out a list of permitted activities that might take place on your premises apart from the sale of alcohol. It also indicates whether an activity will only take place when alcohol sales are allowed or at other times. The supply of breakfasts before the start of licensed hours does in fact require specific authorisation from the licensing board, whether you operate a hotel, pub, restaurant or any other type of licensed premises. If it doesn’t form part of an operating plan, authorisation can only be added by means of a ‘non-minor’ variation application which requires to be advertised and considered by the board. In the case of a hotel, this produces an odd result. In terms of section 63(2) of the Licensing (Scotland) Act 2005 persons residing on licensed premises may purchase and consume alcohol outwith licensed hours. In fact, the consumption (but not the purchase) of alcohol by the guest of a resident is permitted. These dispensations operate automatically and do not need authorisation in the licence. So, as matters stand, you could supply a resident with a pint of beer at 7am, but not a plate of bacon and eggs. My advice is to frame the proposed variation as widely as possible, by indicating that food (including breakfasts)
and refreshments may be served to residents and non-residents prior to the commencement of licensed hours. Be aware, however, that the degree of detail expected varies from area to area so you might need to specify the time at which service begins.
Q: Can I confiscate an ID document if I believe it to be a fake?
A: Under the Identity Documents Act 2010 it’s an offence to possess a false ‘identity document’ – or a document that relates to another person – with an ‘improper intention’, as would plainly be the case where it was used in an attempt by an underage person to obtain alcohol (or any other age-restricted product). Plainly, there’s a challenge in getting the police on the spot while the would-be purchaser is still on the premises, although an Inverness initiative seems to be meeting with some success. However, a number of experienced operators I’ve spoken to point to a potential pitfall. In one case, a shop assistant confiscated a passport suspecting the photograph had been switched and handed it in to police. It turned out to be genuine and had been taken without consent from an older sibling.
Q: I am planning to sell samples of spirits as well as wine in my new restaurant. What does the law say about the measures used for these? Can I only sell, say, three gins if I use 25ml measures? Is it legal to sell these in smaller measures, say 15ml? The same question applies to the wine. My last place of work offered ‘flights’ of wine in 50ml measures. Was this legal?
A: Gin (together with rum, vodka and whisky) can only be sold in 25ml or 35ml measures (or multiples thereof). Of course, provided you comply with this requirement you can offer as many types of gin for sale as you wish. So far as still wine is concerned, when sold by the glass it may only be offered in 125ml or 175 ml measures (or multiples thereof) but wine sold in a quantity below 75ml is exempt. The law in relation to wine was changed around four years ago following a campaign to allow the sale of affordable sample tastings of vintages that would otherwise be prohibitively expensive if sold as 125ml measures.
Q: Can someone under 18 purchase alcohol-free lager (eg. Beck’s Blue)?
A: For the purposes of the Licensing (Scotland) Act 2005, the expression “alcohol” means “spirits, wine, beer, cider or any other fermented, distilled or spirituous liquor” but doesn’t include “alcohol which is of a strength of 0.5% or less at the time of sale”. Beck’s Blue contains “not more than 0.05% alcohol” (thus qualifying for the “alcohol-free” description), so it can be sold to persons under 18. However, in practice, for their own reasons, retailers are apt to treat this and similar products as “age restricted”; but, confusingly, you might see cans of shandy (with an ABV not exceeding 0.5% v) in soft drink aisles.
Q: My local golf club is a private members’ club. A management committee member said anyone from another golf club can enter premises and purchase alcohol without being signed in, as all golf clubs are affiliated. I think this is wrong and affiliation requires to be carried out on an individual basis. Could you please clarify this?
A: In essence, for licensing purposes there are two types of members’ clubs. Firstly, there are “qualifying clubs” which operate under a written constitution and rules with a content prescribed by regulations made under the 2005 Licensing Act. These clubs enjoy a number of dispensations; for example, there is no requirement to nominate a premises manager and alcohol sales needn’t be authorised by a personal licence holder. Other clubs may choose to operate in the normal fashion without the restrictions imposed by the regulations, but without the advantages that would otherwise be available. Assuming that your club is a “qualifying club”, the normal signing-in rules apply to non-members except where the person seeking to buy alcohol is a member of another “qualifying club”. So, while ‘affiliation’ isn’t an issue as such, the other golf club would have to be a “qualifying club”.
Q: I run a small hotel and have come to understand that Trip Advisor reviews can have a significant impact on bookings. A spiteful guest has posted a really bad review on the Trip Advisor website – a pack of lies – but it could have a really damaging effect on my business. Do I have any redress?
A: The answer rests on the outcome of a pending legal challenge. Owners of a hotel in the Highlands were incensed by malicious reviews on Trip Advisor and called on the company to reveal the authors’ identities so that defamation proceedings could be taken. Trip Advisor refused to do so and claimed to be outwith the jurisdiction of the Scottish courts. The owners took the case to the Court of Session when a judge accepted the review site’s argument that any legal proceedings required to be brought in Massachusetts, where its headquarters are situated. An appeal against that decision to three senior judges was rejected. I reckon that, by this stage, the hoteliers must have run up a massive legal bill and reached the end of the road. However, it seems that an anonymous donor has stepped in to fund their battle and the case will be heard in due course by the Supreme Court in London. I reckon that a fair number of hospitality industry operators will be very interested in the outcome.
Q: I know there’s a 30-minute drinking-up time for food, but can this apply to people who had a meal at a wedding at the venue earlier in the evening or is it just for people sitting finishing their meal in a restaurant?
A: The drinking-up time dispensation only applies to the consumption of alcohol “at a meal” and provided that the alcohol was sold during licensed hours, at the same time as the meal and for consumption “at the meal”. As you’ll gather, the key expression here is “at a meal” so the extra time isn’t available where the meal was supplied earlier.
Q: I currently own a property that has a liquor licence. I updated to a premises licence when I operated the business. Then I put tenants into the property and they took over the licence. I have recently had a change of tenant. Who is responsible for the transfer of the licence? Is it wise to put the new tenant’s name on the licence or should they be the premises manager?
A: Under the scheme of the Licensing (Scotland) Act 1976 it wasn’t possible for a landlord to hold a licence and there was nothing to prevent a malicious tenant surrendering the licence back to the board. However, that difficulty has been overcome by the present legislation. You can – and should – hold the licence with the tenant acting as the premises manager. Since the licence is presently held by a tenant there’s scope for complications and it would be wise to put the transfer in the hands of a lawyer.
That is not where your responsibilities end. Should there be any problems with the conduct of the premises, the board will not be impressed to discover that you simply collected the rent. So, as I’ve said before on this page, a wise landlord will carry out regular compliance visits. You might find this basic checklist useful: (1) a certified copy of the premises licence must be available for inspection, together with staff training records (you should keep hold of the original licence); (2) the licence summary should be “prominently displayed” and capable of being read by anyone frequenting the premises; (3) if alcohol is consumed on the premises, there must be a notice at the entrance stating either that persons under 18 are not permitted on the premises, or are permitted either to the whole premises or specified parts (in terms of the operating plan); (4) ‘section 110’ notices relating to underage sales must be in position with the proper wording; (5) an ‘age verification policy’ ought to be in place and adequate Challenge 25 signage on display.
Q: I was always under the impression that it was against the law in Scotland to charge a fee to enter the premises of a public house unless it was to a private function away from the main bar. Has this law been changed or is this still the case as there seem to be more and more public houses charging at the door? Also, are there any byelaws that could prevent this from happening?
A: That question shakes the dust from distant memories of a byelaw operated many years ago by the licensing court in Glasgow that prevented pubs from levying an admission charge. The magistrates took the view that a ‘public house’ was exactly that: premises to which members of the public ought to have unrestricted access. The current licensing regime makes no provision for byelaws and there’s nothing to prevent licensed premises of any description charging for entry. I suppose it’s just possible that there could be a premises licence condition stipulating that entrance should be free of charge, although it’s very difficult to imagine when that would be appropriate.
Q: Is there now a requirement to offer wine in 125ml measures?
A: There’s a campaign driven by the Scottish Government Alcohol Industry Partnership encouraging the trade to offer these measures as a means of promoting public health and giving customers better choice – but it’s not compulsory. The position is different in England and Wales. Specified drinks which are not pre-packed must be available to customers in prescribed measures: (1) beer or cider, half pint; (2) gin, rum, vodka or whisky, 25ml or 35ml; and (3) still wine in a glass, 125ml. Importantly, where a customer does not ask for a specific quantity, he or she is to be made aware that the different measures can be purchased. Perhaps the Scottish Government should give some thought to following this lead.
Q: I’m a member of a bowling club and concerned about the lack of staff training. Is a private club exempt from the requirement to train staff selling alcohol? Three of our bar staff have never had any training at all. Also, the committee overrule the staff when they refuse a member more drink because they’ve already had too much. Is the club breaking the law? And can a club be allowed to sell large quantities of alcohol on closing time and then allow the drinks to be consumed past the fifteen minutes drinking-up time?
A: The practices you’ve described suggest that the people running the club in question believe that because it’s a “private” club the normal rules don’t apply. First of all, in relation to training, there’s no exemption for any type of club. Records require to be kept and must be available for inspection by a licensing standards officer. Any failure here will in all probability lead to a review of the licence – and it’s also a criminal offence. Selling alcohol to a drunk is, of course, an offence for which both the member of bar staff and the premises licence holders can be prosecuted. There’s no dispensation from the rules regarding licensed hours so allowing alcohol to be consumed after the drinking-up time is also courting real trouble.
What can you do? If you’re a committee member I suggest you resign unless the club urgently mends its ways.
Q: Q: Are bar staff legally allowed to drink while working? I know they can’t be drunk but can they drink?
A: The consumption of alcohol is not of itself an offence but it’s not a practice that any management in its right mind would allow. The threshold for “drunkenness” is much lower than you might believe and the risk is just totally unacceptable. Let’s remind ourselves that in just over a week a motorist who has consumed a pint might well be a “drunk driver”.
Q: I, along with four other colleagues, undertook and passed the refresher course. I wrote to the licensing board to confirm this as required by the Act. An officer has asked for a copy of the certificates, which I will supply. They have also asked for all four pages of our current personal licences (copies). Do we really have to supply these?
A: It may seem a bit of a fuss, but the board not only requires sight of the ‘pass’ certificates but is also obliged to update the personal licences. I have no idea why you have only been asked for copies of those.
Q: The pub I currently work in is in the process of being sold. The buyer wants me to be the premises manager when this happens at the start of November. I have booked myself in to get my personal licence at the end of October but obviously I will need to wait for the certificate to arrive before I can apply to the licensing board. My current manager says there is a six week period before the old licence runs out. Is this correct?
A: That’s more or less correct. All premises licences are subject to conditions prohibiting alcohol sales where there is no premises manager or the premises manager doesn’t hold a personal licence. However, these conditions are disregarded provided certain steps are taken: (a) the premises licence holder gives the licensing board notice that the premises manager has ceased to work at the premises not later than seven days after the occurrence of that event; and (b) within the period of six weeks beginning with the day of the premises manager’s departure a variation application is made to substitute the new premises manager. You can ask for the variation to have immediate effect pending determination of the application. In other words, your manager is correct about the six-week period – but you must also comply with the initial notification requirement.
Q: I’ve been asked to provide a finger buffet for a fundraising event in the local church hall. Guests will be offered a glass of wine. There will be no charge for the alcohol, but admission to the event will be conditional on a donation of at least £5. Organisers assure me that since the alcohol is ‘free’ no occasional licence is required, but I have my doubts. What do you think?
A: Closing a loophole in the previous legislation, the Licensing (Scotland) Act 2005 stipulates that a “supply” of alcohol is to be treated as a “sale” where the “right” to the alcohol is acquired under a contract. So, if I become entitled to a glass of wine only where I make a donation payment then the alcohol is “sold” to me. Even a ‘voluntary’ donation might give rise to problems which space prevents me from explaining here. Do not become involved in this event unless an occasional licence is granted
Q: When I attended a training course recently there was a debate as to whether a licensed hotel could offer guests a complimentary drink, for example, a glass of sherry on arrival. Do you see any problem with this?
A: What you describe is, in my view, lawful provided that the supply of the complimentary drink is not conditional on the purchase of (a) one or more other drinks (even a non-alcoholic drink) or (b) one or more measures of the drink. Be aware, however, that there is another view. Alcohol cannot be supplied as a “reward or prize” unless in a sealed container for consumption off the premises. A few years ago pubs and restaurants in one licensing board area were told to cancel a Mother’s Day lunch promotion offering a ‘free glass of bubbles’. The reasoning? The free drink would be a “reward” for visiting the premises (or perhaps a reward for being a mother). You’ll not find a single licensing lawyer who agrees with that interpretation
Q: I’m a premises manager and missed the boat on my refresher training which was due to be completed by the end of August. Do I have any options to rescue the situation?
A: Since you’ve failed to complete a course by the deadline, the licensing board “must revoke” your licence, leading to a five-year ban on an application for a replacement. However, there may be a lifeline. I’ve seen it suggested that revocation follows “automatically” from a training failure. In my view, that’s not quite accurate, because revocation requires positive action on the part of the board. If I’m correct, until that step is taken, the licence is capable of being surrendered, thus paving the way for a replacement.
It’s likely that boards will review their refresher records some time after December 1 – the deadline for notifying training completion – and then proceed to revoke defaulters’ licences. However, you can’t safely make that assumption: it is possible that your failure could come to the board’s attention at any time.
You should also be aware of potential complications. The surrender of the licence would mean that you can no longer act as premises manager and in this situation nominating a replacement to allow the continuation of alcohol sales involves tricky timing requiring expert advice. Some boards will not accept personal licence applications unless accompanied by a licensing qualification awarded on or after August 1, 2013, so you might need to attend a course. The board is entitled to look at the reasons for the surrender, although I can’t imagine that would lead to difficulty in the circumstances. The position would be different if it became clear that a surrender had been used as a device to avoid a licence being endorsed, suspended or revoked at a review hearing.
We’re clearly moving into uncharted territory where different views might be expected and I suggest you put this in the hands of a specialist solicitor
Q: I’m planning to ease myself out of the trade and looking to rent out my pub to a friend who has plenty of experience and would like to go into business for himself. Can you please tell me who should hold the premises licence?
A: No matter how much you might trust a prospective tenant, there’s always a chance of a fallout and if he or she holds the licence it might just be surrendered back to the licensing board. I’ve come across spiteful surrenders on a number of occasions and they’re virtually impossible to prevent.
The result can be catastrophic because the only solution is to apply for a new licence – a process that could take up to six months – and there’s always a risk that the application will be refused.
A further word of caution. If management problems lead to a review – which could result in the licence being suspended or revoked – the licensing board will not be impressed by a landlord’s ‘hands off’ approach.
Rather, the landlord, as licence holder, will be expected to have monitored the operation of the premises with a view to ensuring that any developing problems are addressed quickly and effectively.
So, being a pub landlord isn’t just about collecting the rent and you should, of course, make sure that the lease is drawn up by a suitably experienced solicitor.
Q: I’m about to run a weekly quiz in my pub and plan to offer a £50 bar credit as the prize. I know there are rules about promotions and just need to know whether there are any problems with this.
A: Your licence is subject to a condition providing that alcohol cannot be offered “as a reward or prize, unless the alcohol is in a sealed container and consumed off the premises”. So, you’ll need to come up with another quiz prize that doesn’t contravene this rule.
Q: I’ve recently taken over a cash and carry specialising in Oriental produce. My customers are mainly shopkeepers and restaurant operators. I’d like to introduce a small range of speciality wines and beers and understand that “trade only” premises don’t need a liquor licence. Is that correct?
A: No offence is committed if alcohol is sold “to trade”. A ‘trade sale’ takes place where alcohol or other goods are sold “to a person for the purposes of the person’s trade”. A statement of the obvious – but there’s a complication. Trade sales of alcohol constitute an offence unless they take place on licensed premises “or premises which are used exclusively for the purpose of the selling of goods (whether solely alcohol or not) to trade”. So, putting these provisions together, if you do not obtain a licence you risk prosecution unless every single sale made on your premises – whether beer, wine, groceries or any other commodity – is destined for trade use. So, my advice is simple: apply for a licence.
Q: I passed my personal licence holder exam back in February 2013 and applied for a personal licence last month. The licensing board has told me that my exam certificate is out of date and I need to do the training again. When did the rules change?
A: I’ve received a number of enquiries about this problem. The training content leading to Scottish Certificate for Personal Licence Holders exam changed on August 1, 2013 but I can find no evidence whatsoever to justify the claim that certificates awarded before that date have somehow “lapsed”. Nevertheless, I’m hearing that licensing boards are not prepared to give way on this matter. So, unless there’s a hugely expensive legal challenge – and that will simply not happen – it appears that those affected by the change will simply have to stump up for another exam course.
Q: I have a premises licence for a country hotel and regularly apply for and am granted occasional licences until 1am for the village hall. We then have 15 minutes drinking up time, at which point on licensed premises it would be illegal to consume alcohol, but the hall isn’t licensed and the occasional licence time has finished. So, it is my position that if the bar is closed and alcohol sales have ceased, people can basically drink all night if they wish. Is that correct?
A: Thank you for a very interesting question. For a moment, I thought you might have unearthed a significant loophole in the Licensing (Scotland) Act 2005. As you say, an occasional licence may be granted for unlicensed premises (except that certain types of members’ clubs which have a premises licence can obtain occasional licences on a quota basis).
Section 63 of the Act prohibits the sale, consumption and taking away of alcohol from licensed premises outwith licensed hours (with a variety of exceptions).
It’s absolutely clear that the village hall is “licensed premises” for the purpose of the section: “licensed premises” is defined in the Act as “premises in respect of which a premises licence or an occasional licence has effect”.
The next question is whether the hall ceases to be “licensed premises” after the end of the 15-minute drinking-up period. Further examination of section 63 suggests otherwise. It provides that: “a person commits an offence if, having been requested by a responsible person not to do so, the person consumes alcohol on … licensed premises outwith licensed hours.” For the purposes of that provision, “responsible person” includes the holder of an occasional licence.
I think it must follow that if a customer commits an offence of consuming alcohol outwith the licensed hours set out in an occasional licence, it has to be the case that an offence would be committed if an occasional licence holder allowed such consumption.
Q: I was due to complete refresher training for my personal licence by August 31 this year but decided to get it out of the way early. I sat a course on March 14 and passed the exam. I know training is required every five years, and don’t want to lose track of the next deadline. Can you please tell me when I need to complete a course again?
A: I’ve heard it suggested that the second refresher training course has to be completed within five years of the first one. In my view, that’s not correct: the training deadline runs in five-year cycles. So, in your case, a further course must be completed by August 31 2019, and not within five years from March 14. You said you passed the exam. Presumably you’ve notified the licensing board. If not, it would be wise to do that now. The deadline for your notification is November 30.
Q: I’m a personal licence holder who was handed a fine for a minor offence and notified the licensing board. After a review hearing, the board heard about the circumstances and decided no action was required. However, the licence has been returned to me and it contains the details of the conviction. Does this mean my licence has been endorsed?
A: I suspect not. Following the review, a board might endorse, suspend or revoke a personal licence. You say the board took none of these steps. I have an idea as to what happened. A personal licence document has a number of attachments. Annex A contains a training record. Annex B is a record of any convictions incurred by the licence holder for a ‘relevant’ or ‘foreign offence’. Annex C sets out details of any endorsement, including the reason for its imposition. I reckon that the board has simply recorded your conviction as they’re obliged to do. That does not amount to an endorsement. I expect you’ll find an entry in Annex B, while Annex C will be blank.
Q: In your last column you said a personal licence holder who had left the trade and wanted to avoid refresher training could surrender the licence. I’ve been told that if a licence is surrendered no application for a replacement can be made for three years. Is that correct?
A: There’s clearly some confusion here. Where there’s a failure to comply with the refresher training rules, the licensing board is required to revoke the licence. In such a case, an application for a personal licence cannot be made for five years. Where a personal licence is surrendered, there’s no ban on applying for a new one. However, if an application is made in the next three years the licensing board is obliged to look into the reasons for the surrender. This provision is to tackle the possibility that someone might hold a personal licence which is subject to two endorsements. A third endorsement might result in the licence being suspended for up to six months or even revoked. In such a situation, an unscrupulous licence holder might see the benefit in giving up the licence and applying for a ‘clean’ one. The three-year provision is designed to deal with this sort of scenario. It doesn’t prevent an application.
Q: Is it legal to employ a 17 year old to serve drink in my restaurant?
A: Yes, subject to certain conditions. The alcohol must be supplied for consumption on the premises with a meal. The sale must be authorised by a ‘responsible person’ or by any other person aged 18 or over whom a ‘responsible person’ has authorised to give this sort of approval. The definition of responsible person is rather convoluted. He or she will be (a) the premises manager; (b) in the case of an occasional licence, the licence holder; or (c) a person over 18 who works in a capacity which authorises the person to sell alcohol or prevent an offence being committed.
Q: I left the trade a few months ago and don’t expect to be looking for another job in the foreseeable future.<br />
However, I hold a personal licence that was issued in July 2009 and know that refresher training has to be carried out soon. I don’t want to incur the expense of going on a course but I know that if I miss the training deadline the licensing board will cancel the licence and I won’t be able to get another one for five years. What can I do to safeguard the licence in case I do want to get back into employment?<br />
Also, I’ve lost the licence. Does anything need to be done about that?
A: You can simply surrender the licence so that you can apply for a new one if your circumstances change.
First of all, you should report the loss of the licence in writing to your local police station. Keep a copy of the letter. Then write to the clerk of the licensing board that issued the licence, stating that you wish to surrender it.
You should provide a copy of the letter to the police.
If you apply for a new personal licence in the next three years the board must investigate the circumstances of the surrender. This provision is designed to deal with a surrender where the licence holder wishes to obtain a new licence against the possibility the current licence might be suspended or revoked.
Since your licence was issued before September 1, 2009, the deadline for completing refresher training is August 31, 2014. So, my advice is to deal with this sooner rather than later.
Q: Can you bar any customers from playing the fruit machines in your public house?
A: The short answer is yes. You don’t say why you would want to take that step, but just remember that you must not deny access to the machines on any discriminatory grounds, such as gender, race and disability
Q: I’ve been following your warnings in SLTN about the consequences of not attending to refresher training on time. I received my personal licence at the end of last year and wondered whether there’s anything to stop me getting the updated training now just to get it out of the way. Is that possible or do I have to wait until nearer the end of the five-year deadline?
A: Oddly, it might seem, there’s nothing in the legislation to prevent refresher training being carried out as soon as a personal licence is issued. You might think that this defeats the whole point of the exercise. But what you propose is possible, even though you’d be attending to this around four years before the deadline. I suspect that you won’t have any difficulty obtaining a course booking.
Worryingly, despite the huge numbers of personal licence holders needing to complete retraining no later than August 31, I’m hearing from a number of training organisations that demand for places is extremely low.
Q: After a spate of incidents at my pub, and my unsuccessful attempts to get matters under control, the police applied for a review of the premises licence and it was revoked. I now want to get out of the trade and have someone interested in buying the property who would offer a completely new style of operation. Obviously, the deal will have to be conditional on a new licence being issued. Someone suggested to me that an application couldn’t be made until five years after the revocation. Is that correct?
A: There is nothing to prevent a new licence application, although in the circumstances – even with a fresh operator – it will be a far from straightforward matter. Where a personal licence has been revoked, no further application is possible for five years – but that doesn’t apply to a premises licence.
Q: I was wondering whether I would be able to obtain a personal licence in Scotland although I have a conviction for assault going back a few years? I received a fine.
A: Your question suggests that your conviction might have been incurred outwith Scotland. In that case, it would be considered a “foreign offence”: that is, broadly speaking, an offence committed outwith Scotland which would be a crime in this country of a type which requires to be declared to a licensing board. It’s important to understand that certain convictions become ‘spent’ after a certain period in terms of the Rehabilitation of Offenders Act 1974, which means that they need not be disclosed on an application form, nor may the police bring them to the attention of the board when producing their report. Because it’s an offence not to declare an ‘unspent’ conviction you should speak to a solicitor who will be able to advise properly when he has full details of the background. If the licensing board is able to look at the conviction, they have to decide whether your application requires to be refused for the purposes of the licensing objectives. Much will depend on the actual circumstances; and a solicitor will be able to advise.
Q: The local hairdressing salon is offering customers a ‘complimentary’ glass of red or white wine. It’s hardly a threat to my business, but I’m just curious as to whether this is allowed. Does the salon require a licence?
A: The Licensing (Scotland) Act 2005 closed a previous ‘loophole’ that may well have allowed this customer offer. In terms of section 3 of the Act, where the supply of alcohol is “made to, or to the order of, a person pursuant to a right acquired by the person under a contract” the “supply” is to be treated as a “sale”. In plain language, that means it’s not possible to supply alcohol as part of a package unless the premises is licensed.
Q: Many pubs in my area are closing whenever they want in the evening depending on what is perceived as “poor trade”. Is this allowed with regard to the ‘duty to trade’?
A: Mandatory conditions attached to every premises licence provide that the sale of alcohol – and the carrying on of any other activity – must be in accordance with the licence operating plan. According to guidance issued by the Scottish Government in April 2007, there’s an obligation to remain open for the sale of alcohol throughout all the authorised licensed hours. The guidance also indicates that boards ought to take a “common sense” approach before calling a review and reducing trading hours.
This interpretation is simply wrong. There is no ‘duty’. The conditions simply restrict the sale of alcohol and the conduct of other activities to what is permitted in the operating plan – but they don’t compel. To the best of my knowledge there has never been a single case of an operator being called to account by a licensing board for failing to stay open throughout the authorised hours.
Q: I have heard that certain private members’ clubs are exempt from naming a premises manager. Is this correct?
A: Clubs operating on a ‘not for profit’ basis benefit from certain dispensations provided that they have a constitution and rules containing certain specific provisions: for example, the business of the club is to be under the management of an elected committee or other governing body and must keep proper financial records. Those clubs are not exposed to an ‘overprovision’ ground for the refusal of a licence, may apply for occasional licences in respect of their own premises and need not name a premises manager. However, staff involved in the sale or service of alcohol do require to undergo the usual mandatory training.
Q: I’ve just taken over a pub under a lease. The premises have been closed for a while and I’m recruiting staff who will all need to undergo training. My landlord is insisting that he provides a trainer. He also says that he intends to make a charge for the service. The last thing I need is unnecessary expense. Is there any reason why I can’t attend to the training?
A: If you hold a personal licence, you can train staff. I assume you’re aware that the mandatory content of the training is set out in regulations and it must be ‘signed off’ using a form prescribed for that purpose. However, if there’s a clause in your lease stipulating that the landlord will provide training and charge a particular fee, then it would appear that you have no room for manoeuvre.
Q: Do bar staff employed by a private members’ bowling club have to complete the refresher training course after the five year deadline? Both staff members have a personal licence.
A: Staff in general aren’t obliged to undergo refresher training, but that requirement falls on all personal licence holders, with no exemption for those working in a club. Your question betrays the misunderstanding exposed in my last column. If refresher training is carried out after the five year deadline the personal licence will be revoked. Training must be completed during the five years from the date on which the licence was issued. If a club satisfies certain criteria then it’s treated as a ‘qualifying club’ and benefits from a number of dispensations. Staff involved in selling or serving alcohol must undergo training but there’s no need for a premises manager, nor do alcohol sales require to be authorised by a personal licence holder. This is pretty complicated, and I’ll be taking a closer look at the position of clubs in a future legal column..
Q: Under Section 63 of the Licensing Act (prohibition of sale, consumption and taking away of alcohol outwith licensed hours) it states that it is not an offence to “sell alcohol or allow alcohol to be sold on licensed premises outwith licensed hours if the alcohol is sold to a person who is a trader for the purposes of the person’s trade”. Could you please clarify what this means? Is this for on- and off-sales? Does this mean that someone from another licensed premises can go into a pub, restaurant or off-sales and purchase alcohol so that they can sell it in their own establishment?
A: Generally, an offence is committed if, outwith licensed hours, a person (a) sells alcohol, or allows alcohol to be sold, on licensed premises; (b) allows alcohol to be consumed on licensed premises; or (c) allows alcohol to be taken from licensed premises.
There are a number of exceptions, including the one you’ve identified. In order to correct a technical error, the terms of the Act which you have quoted have been amended so that it is not an offence to “sell alcohol or allow alcohol to be sold on or taken from licensed premises if the alcohol is sold to a person who is a trader for the purposes of the person’s trade”.
As you’ll gather, until the wording was corrected, it would have been perfectly lawful to make a trade sale of alcohol outwith licensed hours – but the purchaser would have committed an offence by removing the goods from the premises.
Your interpretation of the law is correct, although I find it difficult to imagine any circumstances in which a trader would, for trade purposes, require to buy alcohol out-of-hours for consumption on the premises.
For completeness, I ought to mention that Section 120 of the Act makes it an offence to sell alcohol for consumption off the premises if the delivery of the goods takes place between midnight and 6am, but deliveries to licensed premises during that period are exempt.
Q: A new member has just re-joined our club committee. He remembers that under the old law we had to tell the local sheriff clerk when there was a change of committee members or office bearers. Is that still the case?
A: The whole regulation of members’ clubs has now completely moved from the sheriff court to the local licensing board. In terms of the Licensing (Scotland) Act 2005, a club’s office bearer is regarded as a ‘connected person’. There’s an obligation to notify the licensing board not later than one month after a person becomes or ceases to be a connected person. In the case of a new connected person, the notice has to specify the relevant person’s name, address and date of birth. Failure to comply with this requirement is an offence, and a conviction will lead to the review of the premises licence.
Q: I’ve just had a complaint from a furious customer. One of the sales assistants in my shop refused to sell her a bottle of vodka because she was accompanied by a boy who looked around 16. It transpired that the boy was her son. My employees are continually reminded that they have to take a very risk averse view in relation to possible underage sales and ‘agency purchases’. Can you assure me that the member of staff was entitled to refuse this sale?
A: You can, of course, refuse any sale except on discriminatory grounds (race, disability, and so on) so the staff member was indeed acting within their rights. Obviously, if the relationship between the purchaser and the boy was known to your employee, it would have been reasonable to proceed with the sale and I suppose it’s unlikely that an agency purchase would be attempted in such a blatant fashion. However, it’s always prudent to take an ultra cautious approach and risk losing a sale, even a customer’s loyalty, rather than putting your premises licence in jeopardy.
Q: Can you clarify the “drinking up time” in restaurants?
A: Provided that three requirements are all satisfied – alcohol was sold during licensed hours, at the same time as a meal and for consumption at the meal – then alcohol can be consumed at a meal within 30 minutes of the end of licensed hours.
Q: A while back you said plans were in the pipeline to allow military ID cards for proof-of-age purposes. Have there been any developments?
A: Just to recap, the following documents are currently acceptable as proof of a customer’s age: a passport; a European Union photocard driving licence; and a photographic identity card bearing the national Proof of Age Standards Scheme hologram (a PASS card).
As a result of new regulations coming into force on October 1, you’ll also be able to accept from that date (but not before): a Ministry of Defence Form 90 (Defence Identity Card); a national identity card issued by an EU member state (other than the UK), Norway, Iceland, Liechtenstein or Switzerland; and a biometric immigration document.
This expansion is very welcome, but I’d urge some caution. It’s up to the licence holder to decide what will be accepted.
There’s no obligation to sell alcohol to a person producing what appears to be, for example, an EU identity card.
In fact, I’m inclined to go a stage further and suggest that, unless staff are familiar with the appearance of the new forms of documentation it will be wise to leave matters as they are.
Remember to update your age verification policy, which must be in place as a mandatory condition of every premises licence.
I understand that the Challenge 25 website will be updated at the beginning of September to reflect the changes. I urge readers to take advantage of this valuable resource.
Q: For years I put on live bands in my pub. A few neighbours submitted noise complaints to the licensing board and were supported by environmental health. The permission has now been taken away and the resulting downturn in business is worrying. Is there anything I can do to have the entertainment reinstated?
A: It would appear that the complaints resulted in a review of your premises licence and the board imposed a variation removing your ability to provide live performances.
The 2005 Act contains a mechanism which could result in that decision being reversed. You would need to make an application under section 40, which can be done by letter. No fee is involved.
In the letter you must set out the “change of circumstances” to argue that the variation is no longer necessary.
Clearly, there’s no point in embarking upon the application unless you have taken steps to cut down the noise. If you have not already done so, seek the services of an acoustic consultant.
Obviously, the implementation of their recommendations is likely to have cost implications.
You’ll wish to avoid spending money and find that your application fails, so it’s essential you contact environmental health. If you manage to get them “on side” your bid will have a good chance of success.
Q: I run a pub in a tourist area and I’m contemplating the provision of B&B facilities over the summer. Would this affect my licence?
A: You’ll need to make an application for a major variation seeking to add accommodation to the list of operating plan activities and other adjustments are likely to be required, for example, in relation to access by children and young persons. This is not a straightforward process and you’d be wise to get your licensing lawyer involved at the very start.
Q: As a bowling club we have core hours set out in our operating plan. The committee has decided to alter the opening hours. For example, the operating plan shows the bar opens at 2pm but it will now open at 7.30pm; and on Fridays and Saturdays the bar will close at midnight (currently 1am). Are the changes allowed or should the committee apply to the licensing board?
A: If there are to be any increases in licensed hours then the club must apply to the board for a non-minor variation of the operating plan. So far as reductions are concerned, you could apply for a minor variation.
However, is the club actually obliged to make the minor application and, if not, would it be sensible to do so?
When boards started accepting premises licence applications in 2008 a tiny number insisted that there was a ‘duty to trade’; in other words, the licence holder must open for alcohol sales throughout the authorised hours or face a licence review.
That approach is based on a mandatory premises licence condition: “alcohol is to be sold on the premises only in accordance with the operating plan contained within the licence”.
In my opinion, that requirement simply seeks to prevent the sale of alcohol beyond licensed hours – a view that has the support of every licensing lawyer I’ve spoken to, but it’s not shared by the Scottish Government. (Its guidance to boards does, however, recognise that there will be circumstances in which it will be impossible for premises to stay open, for example, during adverse weather).
If you did proceed with the minor application, you could only increase the hours in the future by seeking a non-minor application, which is costly and time consuming. This advice comes with the usual ‘health warning’ – the committee will have to come to its own view about this – but for the sake of future flexibility I’d be inclined to leave the operating plan as it is.
Q: In your last legal column you provided advice around the potential pitfalls of buying licensed premises. Is there anything in particular to look out for when buying off-sales premises? I’m looking to acquire a small convenience store and some steer would help.
A: In relation to off-sales, there are a number of critical considerations. The operating plan contained in the licence will set out the off-sales capacity while the approved layout plan shows the location of the alcohol displays. Typically, a convenience store will have a selection of high-value products behind the sales counter as well as a public display area. It’s vital to make absolutely sure that the size of the displays is sufficient for your needs. You can reduce the capacity by means of a minor variation, which the licensing board is obliged to grant; but an increase is treated as major variation and open to a refusal. The relocation of a display resulting in the same or reduced capacity requires a minor variation. If in doubt, discuss the plans with your licensing lawyer.
It’s also vital to make sure that the licensed hours will meet your needs. The overwhelming majority of off-sales licences provide for the maximum hours – from 10am to 10pm seven days a week – but I occasionally come across those where the operator has, for some reason, decided to limit the hours. There’s also a possibility that a restriction has been imposed by the licensing board – a clear red flag, of course. If you propose to remain open after 11pm you’ll almost certainly require a late hours catering licence from the local council. Finally, be aware that some operating plans set out the overall trading hours – not just the licensed hours. For example, a licence might provide that the premises opens for business at 7am each day. Any alteration to that would require a major variation. I remain bemused by the necessity to make a potentially costly application for such a change.
Q: I operate a pub in a busy tourist area and I’m going to be employing students to help out during the summer months. Since they’ll be on short-term contracts and work part-time hours can I dispense with the usual training?
A: Absolutely not. There’s no exemption for staff employed for short periods or for part-time staff. If an employee sells or serves alcohol the mandatory training must be carried out and the correct record kept. If you fail to comply you face prosecution and a review of your premises licence.
Q: My licensed convenience store normally closes no later than 11pm but I’ve decided that it would be worthwhile opening later. What permissions do I need?
A: So far as your premises licence is concerned, the likelihood is that no action will be required. However, some licensing boards have insisted that the operating plan set out the overall trading hours, not just the times when alcohol will be sold. In such a case the premises licence will require to be the subject of a major variation. Check the licence and if still in doubt speak to your lawyer.
It’s more probable, however, that you will require to obtain a ‘late hours catering licence’ from the council. Depending on local arrangements, this type of licence is needed for the sale of ‘food’ – anything from a packet of chewing gum to a full-blown meal – during the period from 11pm to 5am the following morning. Until recently, the requirement only arose when ‘meals or refreshment’ were being sold, but the Scottish Government decided to broaden the scope of the law. They considered that the risk of antisocial behaviour existed where prepared food was being sold after 11pm. Not all councils have followed through on the change, so investigate the position with the local council’s licensing department.
Q: I’d like to open my pub around 8am to serve breakfasts and non-alcoholic drinks. What’s the process?
A: It depends on what’s set out in your premises licence operating plan. It looks as if you will require to make an application for a ‘non-minor’ variation of the licence. That involves the proposal being advertised and a hearing before the licensing board. The process could take several months.
Q: My shop has just failed a test purchase set up by the police and the local standards officer tells me I’m to expect a review of my licence. A second test was passed. What do you think the board will do?
A: The answer is likely to turn on your ‘diligence systems’. In other words, has the mandatory staff training been carried out? Do you have the appropriate training records? Have you implemented an age-verification (Challenge 25) policy? Have robust steps been taken to prevent underage sales, such as till prompts reminding staff to assess the customer’s age, refresher training, appropriate signage, and so on? If you can demonstrate that the failed test purchase took place because of human error, despite your best efforts, then the result should normally be a warning or no action might be taken at all. However, some boards will normally suspend a licence for a short period, even where the licence holder might appear blameless. The law in this area is about to be clarified. A judgment is shortly to be issued by the Court of Session in an appeal case involving a supermarket which suffered a five-day suspension following a failed test purchase. Lidl has contested a sheriff’s decision that the Glasgow board had been entitled to take a “deterrent” approach and “send a message” to other operators, although it seemed that the company had proper systems in place.
Q: A member of my bar staff assaulted the pub manager in an argument that broke out after closing time. The manager was completely blameless but absolutely refuses to involve the police. The assailant – who has been sacked – holds a personal licence and I feel that he’s no longer a ‘fit and proper person’ to hold that qualification. Is there any action open to me? Can I report the matter to the licensing board that issued his licence?
A: Absent the involvement of the police there is absolutely nothing you can do. If the staff member was charged with, and convicted of, assault he would be bound to notify the board and that would lead to a review of the personal licence. But as matters stand his personal licence simply cannot be affected by the incident. I ought to add that while there’s currently no ‘fit and proper person’ test, as I explain elsewhere on this page that is likely to change before long.
Q: I am a member of a private club where, due to internal problems, the committee has closed the bar pending an enquiry. Members have been taking their own drinks, including glasses, mixers, ice, crisps etc. and meeting as normal. No money changes hands, no sales are made. Could this be construed as an ‘unlicensed sale’? The local LSO has said that this is a grey area.
A: Of course a sale or club ‘supply’ of alcohol would be ‘unlicensed’ – and therefore an offence – if it took place on premises which were not subject to a premises licence or an occasional licence. However, if the licence is no longer in effect and members are coming together to consume their own alcohol on private property it’s difficult to detect a problem. That said, I’m not clear as to the full background here and since the LSO sees this as a grey area for safety I’d be inclined to let the police know the new arrangements.
Q: I’ve been summoned to appear before the licensing board because I was late in paying for the annual premises licence fee. The reminder from the board’s office was sent to my company’s registered office address (my accountant’s office), rather than my pub, and it was mislaid. I’m really not sure what to expect. What action can the board take?
A: This is a familiar tale. In my experience, licensing boards will insist in sending the annual reminder to the premises licence holder’s address as shown on the licence (although the relevant regulations simply provide that “notification” is to be given). That may be an appropriate course, although one might expect a degree of flexibility. It appears that the board has initiated a review of your premises licence, as it is entitled to do, because every premises licence is subject to a “mandatory condition” that the annual fee is to be paid in accordance with the relevant regulations, that is, no later than October 1. In your case, I’d expect the board simply to issue a warning. However, it would be wise to ensure you do not find yourself in a similar position next year. I am aware of cases in which ‘serial offenders’ have suffered a short suspension of the licence.
Q: I’ve decided to sell food and wine hampers in my delicatessen in the Christmas trading period. Are there any licensing implications?
A: There’s no problem with that proposal with three provisos. Firstly, the hamper contents cannot be broken up for individual sale: the non-alcoholic items must only be available for purchase with the alcohol. Secondly, you must resist any temptation to augment the size of the alcohol area by adding the hampers to your existing authorised display. The display ‘capacity’ will be set out in the licence. Thirdly, the hampers must be positioned in a place authorised by the layout plan.
Q: I had a restaurant licence for my property in 1999. The premises closed the following year. I’m in the process of opening the business as a café and will not be selling alcohol. I contacted the local council which advised me that my existing licence has expired, I would have to apply for a new premises licence and they could not advise me of cost. Can I transfer the licence or has it expired? Will I have to apply for a premises licence even though I will not be selling alcohol?
A: It looks as if the restaurant licence has expired because it was not renewed under the provisions of the old licensing Act and, accordingly, it could not be converted to a premises licence under the Licensing (Scotland) Act 2005. In any event, there is no possibility of a transfer and if you did decide to resume alcohol sales you would need to apply for a premises licence. However, if you will not be selling alcohol no licence is required unless food sales will take place in the period from 11pm to 5am on any day, in which case you’ll need a late hours catering licence under the Civic Government (Scotland) Act 1982.
Q: An enforcement officer has told me that I have to display Challenge 25 posters in my off-sales or I could be reported to the licensing board. Is that correct?
A: As I explained more fully in my last legal column, all premises licence holders must have an age verification policy in place but there is no legal obligation to have supporting signage. I can’t see how a failure to display posters could ever result in a review of a premises licence. Nevertheless, posters and other materials are a useful signal that you’re aware of your obligations and, in my view, it would be foolish not to display the sort of materials available here: http://bit.ly/pCQ1UA. In the event of a sale of alcohol to a person under 18, I’d expect the absence of signage to count against you.
Q: In June 2009 I obtained a provisional premises licence for a new pub despite a large number of objections. In the meantime, obtaining finance has been extremely problematic. I’ve had conflicting advice about when the licence runs out and this is a real cause for concern. The licensing board is taking a very tough line on overprovision and I can see a real danger that a fresh application could be unsuccessful. Can you clarify the expiry date?
A: Originally, the Licensing (Scotland) Act 2005 provided that a provisional licence had a currency of two years. It also created a safety net in certain circumstances. Provided an application was made before the end of the two years, the board could push back the expiry date where it was satisfied there had been a delay in the construction or conversion of the premises “caused by factors outwith the premises licence holder’s control”. The ability to extend is discretionary: the board “may” extend the provisional period but there’s no guarantee.
Now, provisional premises licences last initially for four years with the same possibility of an extension. During the passage of the Criminal Justice and Licensing (Scotland) Act 2010 the Scottish Government was receptive to representations that investment in large-scale projects could be jeopardised if there was no guarantee that the licence would last more than two years.
The change came into force on December 13, 2010 and I’ve heard it suggested that it only applies to provisional premises licences granted after that date. In fact, where a provisional licence has been issued before December 13, 2010 and it has not expired by that date, the four-year period applies. So, a licence issued in June 2009 was still ‘live’ when the amendment took effect and therefore runs for four years. That would appear to give you breathing space.
Q: I’m employed as a bar manager and hold a personal licence. I pled not guilty to a charge of assault but received a conviction after the trial and was fined £250. My lawyer has now lodged appeal papers. Do I have to tell the licensing board about the conviction at this stage? My lawyer specialises in criminal matters and isn’t sure of the answer.
A: Despite the appeal, you must, within one month, give notice of the conviction to the board which issued your licence; or, if different, the board for the area in which you’re working.
The board must hold a review hearing and is not disabled from taking action in light of the conviction, but it can postpone action for such period it “considers appropriate” pending the appeal. If the board does decide to proceed with a licence review hearing and the conviction is overturned by the appeal court, any action taken has no effect and the board must restore you to the position you would have been in had the action not been taken.
Obviously, you’ll want to take advice from a specialist licensing lawyer, who can deal with the notification procedure, but I suspect the board will decide to put a licence review on the backburner until there’s a decision on the appeal.
Q: I operate a dedicated off-sales shop with all of the alcohol displayed on shelving behind the sales counter. Space is very tight and when I expect to be busy I keep top-up stock on the floor. A licensing standards officer told me this places me in breach of my licence. Is that correct?
A: If, as it seems, the off-shelf alcohol is available for purchase then the standards officer is correct. You can only display alcohol in the area shown on the layout plan attached to your premises licence. Failure to stick to that plan is an offence and could lead to your licence being reviewed.
Q: When I put in an application for a personal licence back in June I supplied details of a drink driving conviction from August 2007. The police have written to the licensing board to say the information I gave is correct. I’m now told I have to appear at a licensing board hearing in September. Can the board refuse the application because of the conviction?
A: As I think you have deduced, this sort of conviction becomes spent after five years. You were correct to disclose the details in the application and the police were equally obliged to confirm the existence of the conviction. However, it now appears that the conviction will be spent at the time of the hearing next month and it will require to be disregarded.
Q: A member of my bar staff received a warning letter from the procurator fiscal saying he committed an offence under section 1 of the licensing Act, but a decision had been taken not to prosecute. It stemmed from an incident a few weeks ago, when police officers called at the pub when karaoke was in progress and said there was no permission for that sort of entertainment and we duly complied.<br />
The letter explained the warning will remain on record for two years. It also explains that, according to section 1 of the Act, “alcohol is not to be sold on any premises except under and in accordance with a premises licence or occasional licence”.<br />
I can’t follow this. We have a premises licence, so how could an offence have been committed?
A: For present purposes, the key words in that section are “in accordance with”. This means that an offence is committed if a licence condition has been breached and that appears to have happened here since no provision is made for karaoke in your operating plan. You must not resume this sort of entertainment unless and until the board agrees to a major variation of your premises licence.
Q: When I put in an application for a personal licence back in June I supplied details of a drink driving conviction from August 2007. The police have written to the licensing board to say the information I gave is correct. I’m now told I have to appear at a licensing board hearing in September. Can the board refuse the application because of the conviction?
A: As I think you have deduced, this sort of conviction becomes spent after five years. You were correct to disclose the details in the application and the police were equally obliged to confirm the existence of the conviction. However, it now appears that the conviction will be spent at the time of the hearing next month and it will require to be disregarded.
Q: I’m about to start a business selling wine online and have lodged a premises licence application for the industrial unit from where the goods will be dispatched. My solicitor said I should declare the off-sales capacity “zero” in the operating plan but the building standards department has said it will have to measure the shelving used for storing the alcohol. Is that necessary since the premises will not be accessible to the public?
A: Where alcohol is sold for consumption off the premises, the “capacity” is to be treated as “the amount of space in the premises… given over to the display of alcohol for sale”. If building standards is proposing to calculate a capacity for your warehouse that is entirely inappropriate. In the nature of your business you will not be “displaying” alcohol for sale at the premises. Your solicitor is correct.
Q: I was made bankrupt a few months ago. While I am a personal licence holder I am currently not employed in the licensed trade. As a bankrupt person how does this affect the position in relation to the personal licence and my future job prospects, possibly as a premises manager? I have had conflicting advice from the clerks of two licensing boards, as well as my solicitor, who to be fair, said licensing is not one of his specialist areas.
A: As you’ll appreciate, bankruptcy is not my area of legal specialisation. However, from a licensing perspective, your bankruptcy has no impact on your personal licence, so there’s nothing to prevent you being a premises manager – although a prospective employer may want to know about a candidate’s existing or previous bankruptcy. Incidentally, the position is distinctly different where the premises licence holder is adjudged bankrupt. In such a case urgent steps must be taken to have the licence transferred.
Q: I was granted a personal licence in July 2008 and understand that I’ll need to undergo refresher training. When does this have to be completed?
A: Personal licences are initially valid for ten years. A licence granted between February 1, 2008 and August 31, 2009 is deemed to have started on September 1, 2009 when the new Act came in. But updating training is a different matter. Five years from the date the licence was issued, personal licence holders have a period of three months to produce evidence of retraining to the licensing board. A personal licence granted on, say, July 1, 2008, will show an expiry date of August 31, 2019 – but the five-year period runs out on June 30, 2013. There are plans to overhaul the personal licence qualification and devise a specification for refresher training – but there are worrying indications that the urgency of the latter step may not have been grasped. If this goes off the rails, the consequences will be dire: failure to produce evidence of further training will result in the personal licence being revoked, and, where a premises manager does not hold a personal licence, alcohol sales must cease forthwith.
Q: My pub gets a lot of business from off-duty military personnel, many of whom will fail a Challenge 25 test. I understand that military ID cards are not currently an acceptable form of identification. Have there been any developments?
A: The Scottish Government has recently completed a consultation on changes to the approved proof of age documentation. The Ministry of Defence Form 90 (defence identity card) will almost certainly feature in the new list of acceptable forms of identification along with (possibly) certain national ID cards and biometric residents’ permits. Until new regulations are brought in, you must stick to the current rules.
Q: I’m about to take over a pub that’s in a pretty run down condition and I need to undertake a refurbishment, including some structural changes, as soon as possible. I’m also considering creating a beer garden. Can you advise me as to the procedure?
A: At the same time you apply for a transfer of the premises licence you should also make an application for a variation of the approved plan to reflect the new layout.
There are two types of variation: ‘minor’, which the licensing board must grant, and ‘major’, which requires to be advertised and considered at a board meeting, with the potential for lengthy delays. The addition of outdoor drinking facilities to the operating plan will take you into the latter category, as may your other proposals. However, it may be possible to get some of the re-fit work authorised quickly if you submit a ‘minor’ variation as a holding operation.You should also check the premises licence operating plan in case anything else needs to be varied.
Q: I’m helping a new staff member with his application for a personal licence. He tells me he was convicted of a licensing offence in England just over four years ago. Is this something that should be declared on the application form?
A: There are two types of offences requiring to be declared: a ‘relevant offence’ and a ’foreign offence’. The list of relevant offences includes those under the Licensing (Scotland) Act 2005. An offence under the Licensing Act 2003, which applies in England and Wales, will almost certainly constitute a foreign offence as being similar in nature to a relevant offence. Remember that the Rehabilitation of Offenders Act 1974 applies and the offence will almost certainly become ‘spent’ after five years so it might be worth delaying the application.
I’m facing a review of my licence after one of my staff sold alcohol to a test purchaser aged under 18. Will my licence be suspended and, if so, will the suspension take effect immediately even if I decide to appeal?
A: Patterns are emerging in relation to the way in which different licensing boards deal with a test-purchase failure.
Assuming that the usual follow-up test purchase is passed, some will simply issue a warning.
Others will suspend the licence even for a first offence. In many cases the suspension period has ranged from two days to two months. In a recent case, two underage sales (not involving test purchasing) led to a licence being suspended for six months, reduced to four on appeal.
The 1976 licensing Act allowed the continued operation of premises where a suspension had been ordered until the appeal procedure had been exhausted. That could be a very long time – in one case, where it was clear that the premises posed a real threat to public safety, the licence holder managed to keep trading for almost three years.
Now suspensions have immediate effect – with a safety net of sorts. When lodging an appeal with the sheriff court, the licence holder can asked for ‘interim recall’ of the sanction. The judge has to be satisfied that “on the balance of convenience” it is appropriate to place the board’s decision in abeyance until the appeal process has concluded.
In practice, this interim recall can be a very unsatisfactory remedy. Depending on the sheriff court concerned, it can take several days to organise a hearing. In the case of a short suspension it may not be worth the hassle or expense. While it’s possible to ask the board to allow a stay of execution so the recall procedure can be invoked, I would not be hopeful.
The recall mechanism needs some advance planning – now would be a very good time to speak to your licensing solicitor.
Q: In a Q&A a while back you referred to a licence holder producing staff training records at the request of a police officer. However, I had understood that the entitlement to make that sort of request was reserved to licensing standards officers and would like to know my rights in the matter.
A: A number of premises licence mandatory conditions relate to training. Staff selling alcohol (or serving alcohol for on-consumption) must have undergone prescribed training, and a record of that must be kept which “must be produced to a licensing standards officer on request”.
The Licensing (Scotland) Act 2005 separately provides that a constable “may at any time enter and inspect any licensed premises” and any person who intentionally obstructs the exercise commits an offence.
In my view the entitlement to “inspect” isn’t wide enough to require the production of a training record, especially having regard to the exclusive reference to a standards officer in the relevant mandatory condition. If I am correct, it follows that a failure to produce a training record to a police officer is not an offence. However, failure to comply with a standards officer’s request – or any of the other training requirements – could result in a prosecution. While that’s my view of your rights, I’d also advise against testing the matter.
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Jack Cummins is unable to enter into personal correspondence on readers’ questions. The advice offered in SLTN is published for information only. No responsibility for loss occasioned by persons acting or refraining from action as a result of material contained on this page or elsewhere in SLTN can be accepted by the author or publisher.