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Legal Q&A: 2019

Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.

Do you have a legal question for Jack Cummins?*

Click on questions below to show answers.

A: I suspect that the restaurant operates a “no outside food or beverage” policy. Management are entitled to refuse your custom in these circumstances, but what you proposed certainly wasn’t “illegal”.

A: In terms of Section 114 of the Licensing (Scotland) Act 2005 “any responsible person” who is drunk on the premises commits an offence. The landlord and his partner are responsible persons. A conviction will result in the licensing board holding review hearings with potentially dire consequences for the premises licence and the personal licences.

A: As a mandatory licence condition “tap water fit for drinking must be provided free of charge on request”. In my view, the condition is not complied with if any charge is imposed on the customer.

A: As a general rule, a premises licence requires a premises manager who must hold a personal licence – but ‘not for profit’ clubs whose constitution meets certain requirements are exempt. I can’t be sure of your club’s status. Have a look at the actual licence. If the section that would ordinarily give the details of the premises manager is blank, then it is a pretty safe bet that the board regards the club as having met the requirements. Also, you say that “special licences” have been obtained. If these are occasional licences, then that would indicate that you qualify for the exemption. Only clubs relieved from the obligation to have a premises manager can apply for that type of licence in relation to their own premises. But you should be aware that, even where a premises manager isn’t required, staff involved in the sale or service of alcohol must undergo a two-hour training course (normally conducted by a personal licence holder) and training records must be kept on the premises.

A: I suspect you’ll be surprised to learn that a dual pricing system is legal, provided that the two sets of prices are fixed at the start of a period of licensed hours and ‘locked’ for at least 72 hours. That accords with a sheriff’s decision a number of years ago when a licensing board took action against a pub chain’s discount card for students.

A: Licensing legislation certainly doesn’t ban football tops, but I’m aware that at least one licensing board has added a so-called ‘local condition’ to some premises licences preventing them being worn by customers because of a history of football-related anti-social behaviour. Otherwise, this is simply a management decision.

A: It’s not possible to act as a premises manager without a personal licence, but there’s no barrier to working in licensed premises. There’s an important proviso. Any person who sells or serves alcohol must complete the two-hour staff training course. That is required to cover a number of specified subjects and be carried out by a personal licence holder or a person holding an accredited qualification. Personal licence holders are exempt from that requirement so it’s unlikely that the training will have been carried out. If it has, and the training record is still available, that solves the problem. Unlike a personal licence, staff training doesn’t have an expiry date and there’s no need for it to be refreshed. Otherwise, there’s a possible – but complicated and probably impractical – work round. The SCPLH (personal licence) course covers the subject matter prescribed for the purposes of staff training. So, in theory at least, the person who conducted SCPLH training could sign off a back-dated staff training record. That record is really important because it must be produced to a licensing standards officer on request. It’s a messy and potentially time-consuming solution. It might well be challenged by standards officers. Far better, in my view, just to get the staff training sorted quickly.

A; What you describe isn’t a common restriction but it is perfectly possible. I’m guessing that the licence application for the restaurant faced licensing board concerns about the bona fides of the proposal. I recall being involved in an application a number of years ago in which the board wanted to make sure that an ostensibly food-led operation didn’t morph into a pub. My clients were obliged to accept a limit on the number of bar stools and a ban on customers standing at the bar. This was before the Licensing (Scotland) Act 2005 came into force so that the restrictions proceeded by way of formal undertakings. Now, of course, boards have the power to attach conditions to licences and I suspect that is what has happened here.

A: Off-sales premises are subject to controls on the display of “branded non-alcohol products” – for example, whisky glasses bearing the producer’s name can only be displayed in an approved alcohol area unless they are for sale. However, the restrictions don’t apply to pubs, restaurants, clubs or any other on-sale premises.

A: It’s an offence to allow a person under 18 to sell, supply or serve alcohol. There are two exceptions, neither of which assist you. No offence is committed where a person under 18: (1) sells alcohol for consumption off the premises; or (2) supplies or serves alcohol for consumption on the premises with a meal. In both cases, there must be specific authorisation: (1) by a responsible person; (2) or a person aged 18 or over who is authorised by a responsible person. At the risk of appearing pedantic, I ought to add that staff members involved in tastings do not need to be over 18. No offence is committed provided they have reached that age.

A: There’s nothing to prevent that arrangement provided, of course, that it’s sanctioned by the club’s management committee, but particular care should be taken to monitor members’ consumption. The normal ‘signing-in’ procedure applies where a club is of a type that has taken advantage of certain dispensations set out in the Act and thus requires to operate under prescribed rules (except where an occasional licence is in force). The procedure must be observed where a non-member is supplied with alcohol. It also has to be kept in view that alcohol can’t be consumed outwith licensed hours, even on ‘BYOB’ basis. For technical reasons, the usual drinking-up time can’t be allowed: that’s only permitted where alcohol has been sold on the premises during licensed hours.

A: A personal licence authorises an individual to supervise or authorise the sale of alcohol. All licensed premises (apart from particular types of clubs) must have a premises manager who holds a personal licence. Certain late-opening premises require to operate with a personal licence holder in attendance from 1am. Otherwise, those selling or serving alcohol need only have completed the mandatory two-hour training; they do not require to hold a personal licence. It is disappointing that people training the trade don’t seem to have a grasp of the basics.

A: The automatic five-year ban was lifted in the wake of the refresher training meltdown in 2014, so there’s no problem on that front. However, you can’t ‘recycle’ your qualification. A new accreditation document issued by the Scottish Government stipulates that a personal licence application must now be supported by “the qualification, first introduced on August 1, 2013, and known as the Scottish Certificate for Personal Licence Holders”.

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.”.

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.”.

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”.

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.