Q&A with Jack Cummins
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?*
Q: Is it illegal to serve a triple measure of rum, vodka, gin or whisky in a single glass to a customer? I have been unable to find anything specifying as such in weights and measures legislation or the Licensing (Scotland) Act 2005. I am aware though that under the 2005 Act licensed premises are able to impose their own house rules which this could fall under.
A: I believe you’ve answered your own question. In terms of weights and measures, the law simply requires that the spirits you mention are served in one of the following quantities: 25ml, 35ml or multiples of 25ml or 35ml. (That doesn’t apply when gin, rum, vodka or whisky is served as a cocktail in a mixture with two or more other drinks.) The 2005 Act is silent on the matter except for restrictions on certain promotions. However, I reckon the majority of operators would take the view that, as a ‘house rule’, as you put it, the sale of a triple measure to a customer would not be a sensible practice.
Q: Can a whisky distillery give free samples before 10am in Scotland?
A: Assuming that the samples are provided as part of a paid-for tour, the distillery’s premises licence would govern the hours during which these supplies could be made.
Q: Our private members’ club is planning to provide a beer tent during a golf event. The club is licensed. Does our licence cover the use of the tent?
A: Almost certainly not, in which case you’ll need to make an application for an occasional licence. Also, be aware that depending on the activities taking place in the tent you might need a temporary entertainment licence from the council.
Q: I would like to start a new business supplying a Champagne bar at functions such as weddings and parties. Do I need a personal licence?
A: A personal licence would allow you to apply for an occasional licence to sell alcohol at these sorts of events on unlicensed premises. I assume that you don’t hold a premises licence. That would also allow you to make an occasional licence application.
Q: I’m starting my own business venture by hiring out products to customers for parties, weddings and so on. One of my products is a ‘Prosecco wall’. I would be supplying the alcohol and dropping off at the venue but not selling on the premises. I have a personal licence but don’t know if I need anything else.
A: You would need a premises licence allowing the sale of alcohol for off-consumption. It’s not unusual for storage units to be licensed for this sort of venture.
Q: My local pub is proposing to charge customers £5 to cover the cost of the entertainment at an event they’re planning. I don’t care for the entertainment but just want to have a drink on the premises. Is it legal to introduce a cover charge?
A: Yes, provided the entertainment is permitted in terms of the operating plan contained in the pub’s premises licence. If entertainment is to be provided outwith licensed hours, it’s likely a public entertainment licence will be required.
Q: I recently asked in a restaurant if I could drink my own caffeine and alcohol-free drink as I cannot take caffeine. I was offered no alternative. I explained that I only wanted to consume one drink, but was told that it is illegal for them to allow this. Is that correct?
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”.
Q: A pub I visit regularly has a landlord who’s almost always intoxicated and arrogant whilst working behind the bar. His partner, who is also a personal licence holder, likewise is frequently drunk behind the bar. Is this legal?
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.
Q: If a customer asks for a free glass of tap water can I impose a service charge for the provision of a glass?
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.
Q: Our bowling club committee is in a quandary. We need to know whether we require a personal licence holder to operate the bar. At the moment we have a premises licence issued by the local licensing board against which we have had special licences and late licences and this amounts to total contact with the authorities. Can you please advise if we are operating properly?
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.
Q: My pub is giving loyalty discount cards to local football boys. It works out l am paying 63p more than they are. Surely this can’t be legal?
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.
Q: Are football tops allowed in pubs in Scotland?
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.
Q: If a personal licence is revoked or allowed to lapse, can you still work in licensed premises where you’re employed to undertake bar work? What about someone working in an off-licence?
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.
Q: Can a licence be granted to a restaurant with the provision that customers are prohibited from standing at the bar area and from accompanying other customers already seated there? When I recently visited a city restaurant, there were a number of unoccupied bar stools available for customers but not enough for our party. We were told by a member of staff that the licence prevented anyone from standing in the bar area, although we were waiting for a table to become available. Could that be correct?
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.
Q: Do you have to provide plain jugs and glasses in pubs or can you use branded ones?
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.
Q: I work for a small independent retailer. From time to time we conduct alcohol tastings. Do the members of staff who serve customers with the samples need to be over 18?
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.
Q: Is it acceptable for members of a private club to bring their own bottles of spirits onto the premises to consume on special occasions such as New Year’s Day?
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.
Q: My personal licence is due to expire on August 31 and I know I need to get a renewal application submitted well ahead of the May 31 deadline. When I was looking for training, I came across a college website suggesting that a personal licence was needed by anyone serving alcohol or “working behind a bar”. All staff in my pub have been trained on the two-hour course but there are only two personal licence holders. Are we complying with the law?
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.
Q: I took my eye off the ball and didn’t complete refresher training in time resulting in my personal licence being revoked. To maintain my employment as a duty manager I need to get this sorted quickly. Is there still a five-year ban in making a new application? Can I use the training qualification I obtained in 2011?
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”.
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.