Legal Q&A: 2019 | Scottish Licensed Trade News

Scottish Licensed Trade News

Legal Q&A

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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Q: We’re a small charity starting a social enterprise business and hoping to sell a locally-brewed beer in a gift shop. It would be the only alcoholic product on sale and usually packaged in a presentation box with glassware. How do we stand in terms of licensing?

A: I’ve received a number of readers’ questions recently that seem to point to a belief that very small sales of alcohol may be exempt from a licensing requirement. In fact, with very few rare exceptions (eg. airside shops at airports) a premises licence requires to have been granted under the Licensing (Scotland) Act 2005. Looking at the modest nature of your proposal that should not be a difficult exercise but it will generate some expense.”.

Q: Is it illegal for a shopkeeper to sell alcohol on the slate?

A: When I answered a similar question a few months ago, I explained that the Licensing (Scotland) Act 1976 banned credit sales (with a few exceptions), but no similar provisions appear in the Licensing (Scotland) Act 2005. In the interval, there has been a development. One licensing board has taken a position on the matter in its latest licensing policy statement. It has become aware that a small number of off-sales in its area supply alcohol with payment deferred to a later date. This is considered to be a breach of the “public health” licensing objective as it may contribute to vulnerable persons’ alcohol dependency and lead to harm. While there’s no gainsaying the laudable intention behind this approach, I rather doubt whether it has a sound legal basis. It seems to me that if the parliament decided to abandon the ban on credit sales, that’s pretty much the end of the matter. In fact, one might say that, on the board’s reasoning, credit card purchases of alcohol ought to be prohibited on the basis that they could be used to buy large amounts of drink on long-term credit.”.

Q: Do customers have to be seated when drinking in a beer garden? I was in a public house in Glasgow city centre and was advised that by law I have to be seated whilst drinking outside. Can you advise if this is in fact correct?

A: There’s no law as such requiring beer garden customers to be seated; but in this case the licence holders were, it seems, complying with a so-called “local condition” attached to the premises licence by the Glasgow board. This provides that, “Where the outdoor area is situated on a public footway, it may only be used for the consumption of alcohol by customers seated at tables”. The condition is designed to address the potential for public nuisance that might be caused by “vertical drinking”.

Q: While the cold weather is upon us, I want to serve hot toddys in takeaway coffee cups. If I serve them with a lid (with small holes in which to drink through like a takeaway coffee) is it legal for people to take these away to drink off the premises?

A: As a starting point, if the licence allows the sale of alcohol for consumption off the premises then that activity is permitted by the Licensing (Scotland) Act 2005. However, that’s not the end of the matter. Most local authorities have published byelaws making it an offence to consume alcohol in “designated” public places. The actual wording of the byelaws varies from area to area. But typically they will provide that an offence is committed by any person who consumes alcohol in a designated place or is found in possession of an open container containing alcohol. So, the lid arrangement might address the latter offence; but customers would have to be warned that drinking their toddy al fresco exposes them to prosecution – and that, I think, makes your idea highly inadvisable.

*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 on this page or elsewhere in SLTN can be accepted by the author or publisher.