By Stephen McGowan, partner – head of licensing (Scotland) at TLT Solicitors
Q: Do home deliveries of food need to be referred to in the operating plan/premises licence?
A: While it is helpful and good practice to expressly note home deliveries of food as an activity on the operating plan, provided that you have permission for restaurant facilities then you should be able to offer home deliveries.
Q: My operating plan makes no reference to home deliveries or restaurant facilities, what can I do?
A: Given the unprecedented circumstances at play here, it may be that the police and licensing board take a relaxed approach to enforcing any restrictions of this nature provided that alcohol is not involved. We have issued a guidance note to clients advising that our view is that it is highly unlikely any sensible authority would take issue with a premises trying to provide food to vulnerable people in this time of crisis.
Q: Do I need a late hours catering licence?
A: A late hours catering licence is needed where a premises sells food (and the definition of food is extremely wide) after 11pm and before 5am. This captures takeaways but also retail shops like 24-hour shops and garages selling consumable goods but is not designed to capture food provision for immediate consumption on the premises, eg. a late-opening restaurant. There are some mixed views on the position where the premises also holds an alcohol licence and you should contact your licensing lawyer to discuss.
Q: Can I make deliveries of alcohol?
A: You must have permission for off-sales of alcohol on the premises licence for the premises from which the alcohol is being dispatched before you can deliver alcohol. It is our view that the delivery of alcohol is a form of remote sale permitted by off-sales.
We acknowledge that some licensing boards have, in recent times through their policy statements, sought to oblige licence holders to specify alcohol deliveries as an activity. Our view is that this has been done so boards can assess delivery procedures as opposed to any wider view that delivery cannot occur unless specified. Our advice is that off-sales permission of itself allows delivery. As above, given the issues for businesses and consumers, it may be that the police and licensing boards take a relaxed approach to enforcing any restrictions of this nature.
Q: I have an off-sales licence and wish to deliver alcohol. Are there any special rules?
A: Absolutely. It is important to note that deliveries of alcohol are highly regulated. You should note the following legal requirements:
- You must keep delivery records (see below) on the premises and in the delivery vehicle;
- No deliveries before 6am or after midnight;
- All payments must be processed during licensed hours (usually 10am to 10pm but check your specific licensed hours for off-sales);
- Challenge 25 must be applied when delivering the alcohol;
- The record-keeping requirements are that a day book must be kept at your despatch premises and a delivery book or invoice carried by the driver or courier must specify: (a) the quantity, description and price of alcohol, and (b) the name and address of the person to whom it is being delivered.
Delivering the alcohol to an address other than as per the order form is an offence, so it cannot be left with a neighbour and any redirection would require the day book and invoice order updated.
In addition to this we also recommend that a refusal register should be maintained by the delivery driver/courier, although this is not a strict legal requirement.
If you are planning to despatch alcohol via a third party it is your responsibility to ensure that their service complies with the law, the major issue being delivery of alcohol to under 18s. Thus the delivery driver/courier must seek proof of age at the point of delivery. This may prove very difficult where a customer is self-isolating; the law anticipates face to face contact and the physical verification of ID at the door step in line with the abovementioned Challenge 25 condition. You should be asking customers if they are self-isolating and have processes in place to mitigate the risk. Please seek specialist advice about due diligence options and risks that may arise.
There are no specific requirements for the couriers to have the two-hour mandatory alcohol training but they must have some training to allow them to fulfil their age verification responsibilities. You should carefully check your premises licence to make sure that there are no conditions that regulate how you can deliver alcohol.
