Regular checks offer pitfall protection, lawyers say
No publican wants to get on the wrong side of their local licensing board, but the sheer volume of legislation that’s come the trade’s way in recent years has left operators with more than a few boxes to check in the name of compliance.
While many licensing issues will require the help of legal professionals, licensing lawyers working with the Scottish trade say there are a number of preventative steps licensees can take to avoid some of the pitfalls.
Andrew Hunter, partner at Harper Macleod, reckons that many of the common pitfalls faced by licensees, such as late payments of fees, can be overcome through “good administrative practice”.
“It amazes me that there are licence holders who end up facing a review for the late payment of their annual fee,” said Hunter. “It’s the same time every year – a simple diary entry every year would fix this.
“Along with this is the need to notify the board within seven days when the manager leaves so that there is time to lodge a substitution application within six weeks and thereby have no discontinuance of trade”.
Archie Maciver of Brunton Miller also highlighted the need for operators to inform the board of a change in designated premises manager, and warned that police would be “well within their rights to tell the operator to cease selling alcohol” until the situation is resolved.
Other common legal pitfalls facing operators highlighted by Maciver included failure to display the necessary notices in their premises.
“[Licensees] should remember to display the Summary of the Premises Licence, the Section 110 Notice, the appropriate Weights & Measures Notices, and of course a notice stating the policy of the premises regarding children/young persons’ access,” he said. “Frequently these matters are overlooked.”
Good administrative practice should include adequate record keeping, said John Grant, senior associate at Wright, Johnston & Mackenzie.
The lawyer said it is “essential” that adequate records of licences are kept as there are serious consequences for operators who fail to keep on top of their personal licence refresher training obligations – including carrying out training in a timely manner with evidence provided to the board.
“The absence of discretion for a board to deal with a failure and the automatic revocation of a personal licence can have catastrophic consequences for the unwary,” said Grant.
“Ensuring that all staff are properly trained in relation to the display of licences and required signage will also greatly assist in any due diligence defence to any enforcement action.”
The potential problems arising from poorly kept training records were also flagged by Audrey Junner of the licensing team at Miller Samuel Hill Brown, who said Police Scotland and LSOs are paying “particular attention” to staff training records.
“They [records] become especially relevant if you are unfortunate enough to fail a test purchase operation, as they will be key to establishing a due diligence defence.”
Failure to display statutory notices was another common pitfall highlighted by Junner, who warned that there is “less tolerance of administrative failures in licensed premises” from licensing officials.
“They expect to see your summary on display, the correct children’s access signage, the under 18 sales notice, plus your premises and personal licences on site,” she said.
Michael McDougall, solicitor at law firm Lindsays, suggested operators perform a regular “health check” on their premises to make sure the statutory notices are in place.
“It is easy for these sort of changes to be missed as part of the constant pressure to keep up with market trends,” said McDougall.
Keeping on top of due diligence requirements should also be a regular activity for licensees, McDougall suggested.
“Operators of public houses/late night entertainment venues should review their due diligence/processes and procedures in relation to intoxication of patrons,” he said.
“For example, stewarding staff patrolling the premises. Operators should be able to point to such documents in the event that the police raise any concerns.”
The importance of attention to detail when it comes to documents was also highlighted by licensing lawyer Janet Hood as a means of avoiding many common legal pitfalls for licensees.
Hood suggested operators “adopt a strong compliance regime”, adding that licensees should keep a “licensing folder” behind each bar on a premises to contain “certified true copies” – a document certified as a true copy by a professional person like a solicitor – of a range of key documents including premises licence, personal licences for all personal licence holders, staff training certificates, signed challenge 25 policy documents, current daily due diligence reminders (non-current to be kept in a folder in the office and to be available on request to premises manager), and current incident/refusals sheets (non-current to be kept in a folder in office and to be available on request to premises manager).
There is undoubtedly a lot for licensees to keep on top of, but Linda Bowie of Alcohol Focus Scotland, the organisation behind training provider Servewise, reckons the legal framework licensees must negotiate could be made more navigable by consolidating existing legislation.
“A consolidation Act would make the whole system easier for everyone involved in licensing,” said Bowie.
Niall Hassard, licensing legal director at TLT, agreed and said an Act consolidating existing alcohol legislation “should be priority”.
“It is essential that those operating in a regulated environment can easily access the law that governs their business,” he said.
