Departing from an operating plan can land a business in hot water
THE operating plan and layout plan: components of a premises licence with the potential to cause major headaches.
In fact, take your eye off the ball and you could face business disruption, loss of the licence – even prosecution.
Firstly, let’s take the case of a bowling club with an outside drinking puzzle. The perplexed secretary of the club contacted SLTN looking to unravel a mystery.
It had always been assumed that the premises licence embraced the whole of the club’s property, marked out by a boundary fence and including the clubhouse and bowling green.
But in a discussion with a licensing standards officer it emerged that there was no permission for outside drinking – only the clubhouse was licensed.
I’ve been provided with a helpful narrative of the background, but not quite enough detail to provide a definitive analysis. Nevertheless, it strikes me that, in all probability, the layout plan associated with the club’s premises licence only contains the clubhouse; or, if the bowling green and other areas are shown on the plan, they’re not within the usual red line defining the extent of the licensed premises.
In the result, it seems that the club has been put to the trouble of applying for a major variation to extend the licensed premises and add outside drinking as an “activity” to the operating plan.
There will also be an impact on the capacity of the premises so that will require an operating plan adjustment.
Assuming that children and young persons will access areas other than the clubhouse it’s likely that the operating plan will need to be tweaked in that area.
The premises licence description may require amendment too. This is a fiddly and expensive process – especially since new drawings have to be prepared.
Adding to the pain, the application requires a hearing and that will take several weeks – perhaps even months.
The only good news is that it may be possible to obtain occasional licences for the outside area while the variation application is pending.
It’s certainly a case where the club should be looking for professional help if they remain in any doubt as to the position.
Business disruption is bad enough – but there’s also the potential for loss of a licence.
According to news reports, a few weeks ago a convenience store owner found himself before the licensing board following the discovery that he was displaying much more than the authorised amount of alcohol.
An off-sale capacity is set out in the operating plan while the layout plan shows the size and position of the displays.
These arrangements can only be changed when the licensing board approves a variation application.
The matter is ongoing but it appears that the business owner had been warned that his licence is at risk.
The real sting in the tail is to be found in Section 1(1) of the Licensing (Scotland) Act 2005 which provides that, “Alcohol is not to be sold on any premises except under and in accordance with (a) a premises licence, or (b) an occasional licence.”
A breach of that provision can lead to a fine not exceeding £20,000, a term of imprisonment not exceeding six months, or both.
This offence is much broader than the old offence of trafficking in alcoholic liquor without a licence.
The key words are “under and in accordance with”, giving rise to the potential for any number of breaches where there’s an unauthorised departure from the operating or layout plans or a failure to comply with a condition.
Prosecutions under Section 1(1) are rare – but I have come across a few – and the likelihood of anything approaching the maximum penalties is small to vanishing.
But the real risk is that a licensing standards officer – or the board – may call a review of the premises licence; and, of course, that may well lead to the licence being suspended or revoked.
