Trouble can follow if a licensee moves beyond their operating plan
By Jack Cummins
A STREAM of readers’ questions and my recent experience with a client’s problem prompts me to write this issue about the importance of premises licence operating plans: what they allow and the consequences of non-compliance.
Under the ‘old’ licensing Act, the activities taking place in licensed premises were pretty much up to the operator.
For example, a public house licence simply allowed the sale of alcohol for consumption on the premises and that really was the end of the matter.
A number of licensing boards tried to fill the vacuum by publishing byelaws requiring consent to be given for the provision of entertainment, games facilities, the use of television sets and so on – until that approach was ruled unlawful in an appeal decision.
The Licensing (Scotland) Act 2005 takes an entirely different approach.
An applicant for a premises licence must produce an operating plan which sets out the activities that will take place.
There are a number of pre-selected categories, as for example the provision of bar meals, live performances, recorded music and outside drinking facilities; but anything not in a ‘tick box’ must also be declared on the plan.
Just to emphasise the scope of the control exerted by the operating plan, it has to include a “statement of the times at which any other activities in addition to the sale of alcohol are to be carried on in the premises”.
Taking your eye off the ball can have dire consequences.
Imagine a case where a pub owner decides that he has to get on level terms with a competitor by providing a strong Sky Sports offer.
The operator goes ahead, signs up with Sky and gets the familiar promo banners up on the front of the pub.
But the venue starts to attract the wrong crowd and that leads to a visit from a licensing standards officer, who’s bound to tell him that the operating plan doesn’t include televised sport.
Following the bad news, the operator really has no choice but to shut down Sky Sports and apply to vary the premises licence.
But there’s more bad news.
It could be several months before the variation application comes before a licensing board, and there could well be an objection from one of the neighbours who takes every opportunity to complain about the way the pub is managed.
Carrying on for the next few months and hoping for the best isn’t an option.
That’s because Section 1 of the 2005 licensing Act makes it an offence to sell alcohol on any premises “except under and in accordance with a premises licence or an occasional licence”. (There are some exceptions that aren’t relevant here).
The words “and in accordance with” have a significance that may not be immediately obvious.
Selling alcohol outwith the terms of the operating plan is selling otherwise than in accordance with the licence.
The offence carries a fine not exceeding £20,000, six months’ imprisonment or both.
I don’t expect that a court would go anywhere near the maximum penalties, but the risk of prosecution is real.
You may remember a case a few years ago when a pub operator found himself in the Sheriff Court for providing rolls and sausage which, according to the prosecution, didn’t amount to a ‘breakfast’ for the purpose of a so-called ‘breakfast licence’.
It isn’t just a failure to follow the operating plan that could trigger a Section 1 prosecution.
There are countless possibilities: just by way of example, breaching mandatory conditions by failing to carry out staff training or putting prohibited products in a supermarket alcohol aisle.
To avoid grief that may well have a really serious impact on your business, make sure that a premises licence application covers all the possible activities.
If you’re an existing operator, take a few minutes to check the operating plan and make sure you’re compliant.
And before you think about expanding your offer, make sure the operating plan covers what you propose.
Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.
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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 in SLTN can be accepted by the author or publisher.