Restaurants and casual dining outlets among the adopters
IN the past few years, the online retailing of alcohol has boomed big time.
For those looking for drinks to be delivered to the doorstep, the order is just a few clicks away. In fact, with the launch of some app-based services, it may be less than an hour away.
The introduction of minimum pricing has inevitably stimulated the ordering of drinks from over the border – a trend likely to accelerate when, as I expect, the minimum unit price moves north in a couple of years to 70p.
And now restaurants and casual dining outlets are entering the marketplace in an effort to recoup some of the ground lost to competitors using delivery platforms such as Just Eat, Deliveroo and Hungry House.
The current scheme of regulation is largely based on cobweb-laden rules put in place well over a hundred years ago to address the dangers of opportunistic door-to-door sales and licensed grocers playing fast-and-loose with the times during which drink could be sold.
So, it’s remarkable that when licensing was overhauled more than ten years ago there was no real attempt to modernise the law (apart from requiring alcohol dispatch premises to be licensed). In fact, the two leading cases on the subject – still relevant today – date back to 1930 and 1934, both involving police “stings” as officers caught grocers’ messengers in the act of delivering alcohol outwith permitted hours.
Nowadays, the number of delivery outlets, cross-border purchasing and electronic transactions pose much more complex enforcement challenges.
Before I look at the rules there’s a fundamental question to be addressed. If a premises licence authorises the sale of alcohol for consumption off the premises, is it necessary to incorporate deliveries in the operating plan?
In my view, an off-sale permission is of itself entirely sufficient – and it’s a view shared by every licensing lawyer with whom I’ve discussed this.
However, a number of licensing boards disagree and it’s usual for operators to err on the side of caution. And where deliveries are to appear in an operating plan, boards have the opportunity to attach conditions plugging at least some of the gaps in the legislation.
The Licensing (Scotland) Act 2005 itself approaches deliveries in a number of ways.
There’s a record-keeping requirement. Sales must be recorded in a day book kept at the premises and a delivery book (or invoice) carried by the delivery driver. Both must detail the quantity, description and price of the alcohol; and the name and address of the person to whom it is to be delivered.
It’s an offence not to keep these records and they must be made available to a police or licensing standards officer on request.
It’s also an offence to deliver to an address other than entered in the documentation – so there’s no “leave with a neighbour” option; and deliveries between 12 midnight and 6am are banned.
The potential for deliveries to persons under 18 – an offence, of course – is a matter which understandably worries licensing boards. Anyone applying to add the facility to a licence can expect to be grilled about the preventative measures they propose to put in place.
There’s a curiosity here because ‘Challenge 25’ isn’t a requirement where premises are licensed because they’re used for dispatch purposes only (not for taking alcohol orders). In other cases where a sale is ‘remote’ – not face-to face – a proper age check isn’t a practical possibility: plainly at that stage there’s no visual contact with the purchaser.
When it comes to the delivery itself, there’s no legal obligation to operate Challenge 25, unless the licensing board has attached a condition to that effect.
But anyone who is caught delivering alcohol to a child or young person will find themselves convicted of an offence unless they believed that person to be aged 18 or over and either (a) reasonable steps were taken to establish the person’s age; or (b) no reasonable person could have suspected from the appearance of the person taking the delivery that he or she was aged under 18. “Reasonable steps” involve asking for one of the usual acceptable forms of identification such as a driving licence or passport.
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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