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: I’ve applied for a premises licence and expect the application to be considered by the licensing board in around two or three months. The police submitted a report to the board advising them that I’ve been charged with reset. I’ve entered a plea of ‘not guilty’ but a trial date has not yet been fixed. Do you expect that the board will take the charge into account?
A: Around 24 years ago the Crown Office issued a circular to licensing boards advising them that prosecutors were content for pending criminal charges to be taken into account when licensing applications were considered. In my view that was a bad position to adopt; so much for the presumption of innocence and the right to a fair trial. Case law was inconclusive, with one Sheriff Court appeal judgment vindicating the right of boards to consider criminal charges and another disapproving of the practice. In my experience, it’s unlikely that a board will delve into matters which have yet to come before a criminal court, especially since there’s a valuable safeguard. If a licence was granted but a conviction for an offence ensued then the board would require to be notified and a review hearing would almost certainly ensue.
Q: On a recent routine police visit to my pub the premises manager was off duty and, unusually, no other personal licence holder was working. No action was taken by the police but they did tell me to ensure that, in future, someone with a personal licence was present on the premises. Is that a legal requirement?
A: In my opinion, it is not. However, it’s not good practice to trade without the presence of a personal licence holder: it will lead to unwelcome complications if there are any problems with the conduct of the premises in such a circumstance.
Q: A customer at my shop wanted to reserve a bottle of spirits to be collected during licensed hours. He handed money over to my cashier and she accepted the payment before licensed hours. The cashier believed that she did nothing wrong as the sale wasn’t put through our till system until after 10am. In my view, the cashier should not have accepted the payment as she did, albeit the customer would not have collected the purchase until after the start of licensed hours. Is my view correct?
A: In my opinion, you are indeed correct, although I can understand why the cashier fell into error. The prohibition of alcohol sales outwith licensed hours is subject to a number of exceptions, including “the ordering of alcohol for consumption off licensed premises”. But that does not authorise a completed sale. In a High Court case decided in 1930, the bench held that an order for the supply of liquor, coupled with immediate payment of the price outwith ‘permitted hours’, constituted a prohibited sale. Alcohol can also be despatched to the customer outwith licensed hours (subject to a ban on deliveries between 12 midnight and 6am); but, again, payment for the order must be taken during licensed hours.
Q: Is it legal to sell zero-alcohol drinks and mocktails from an unlicensed café?
A: For the purposes of the Licensing (Scotland) Act 2005, ‘alcohol’ means ‘spirits, wine, beer, cider or any other fermented, distilled or spirituous liquor’ but it does not include ‘alcohol which is of a strength of 0.5% or less at the time of its sale’. (There are a number of other exceptions which are not relevant to the question). So, provided the drinks you describe do not have an ABV exceeding 0.5% no licence is required.
Q: I’ve obtained a provisional premises licence for a pub and intend to be the premises manager. A training course has been booked ahead of my application for a personal licence. What needs to be done about training staff?
A: Other than personal licence holders, those who are employed to sell or serve alcohol (whether paid or unpaid) must undergo training covering a range of subject areas and lasting a minimum of two hours. You can carry out the training when your personal licence has been issued. The training must be recorded on a prescribed form and the record made available for inspection by a licensing standards officer. As to the training content and the form of the record, you should consult a solicitor if in any doubt.
Q: My pub has been badly damaged by fire. Fortunately, the insurers have been good to deal with and I have funding for a rebuild. There’s a vacant building not very far away where I could trade on a limited basis until the works are completed. What sort of licensing arrangement would be needed?
A: You could apply for a temporary licence in respect of the stop-gap premises if that’s a viable route. The Act provides almost no detail in relation to the application procedure but it does provide that the licensing board would require to be satisfied that (a) the temporary premises are suitable for the sale of alcohol and (b) it is necessary to grant the application so that you can carry on business pending the reconstruction. From what you say, there looks to be no possibility of operating while the building works are in progress. The licence would last for not more than two years but with the possibility of a 12-month extension if the reconstruction drags on.
Q: I’m proposing to boost weekend trade in my restaurant with wine discounts on Fridays and Saturdays supported by a local leaflet campaign. Do you see any problem with this?
A: You cannot stage a drinks promotion running for only two days. The discounted prices must be introduced at the start of licensed hours and that sets the price of the promoted products and all other drinks for at least 72 hours thereafter. It follows that you could offer the price cuts on, say, Fridays, Saturdays and Sundays - but not over two days.
Q: I plan to set up wine appreciation classes in village halls and other venues which aren’t licensed. I’m wondering whether I could sell tickets in advance on a website, entitling attendees to sample a number of products, with no money changing hands at the events. Would that be an option?
A: It really isn’t so easy to work round the need for a licensing arrangement. The purchase of the ticket amounts to a contract entitling the holder to the supply of alcohol – and in law that amounts to a sale requiring a licence. Section 3 of the Licensing (Scotland) Act 2005 provides that “the supply of alcohol which is not otherwise a sale is... to be treated as the sale of alcohol... where the sale is made to, or to the order of, a person pursuant to a right acquired by that person under a contract”. You ought to obtain occasional licences for the venue. An application can be made by the holder of a personal licence (or a premises licence). If you consider that you have a viable long-term business proposition it would be a sensible idea to invest in a personal licence. Both the personal licence and occasional licence processes ought to be straightforward. Just be sure that you lodge the occasional licences applications in good time.
Q: I’ve obtained planning consent for a new-build restaurant on the edge of a residential area. The application attracted objections from locals who complained that the restaurant would cause parking problems in the area, but these were dismissed in the planning officer’s report. I’m now hearing that the same people will be opposing my premises licence on the same basis. Could they fare better before the Licensing Board?
A: Absolutely not. As far back as 1991 senior judges ruled that where planning was in place a board should be slow to find that licensed premises would have a negative impact on local amenity. That position is fortified by the Licensing (Scotland) Act 2005. The Brightcrew case, which I’ve discussed here many times, makes it plain that boards must not stray into matters governed by other legislation: planning, building control, health and safety and so on.
Q: I operate an outside catering business and regularly obtain occasional licences. I recall that there were plans to allow licensing boards to set limits on the number of occasional licences that could be issued to a licence holder over a particular period. If this comes to pass, there would be a really serious impact on my business. Are you aware of any developments?
A: There have long been concerns that occasional licences could be used as a cheap alternative to a ‘permanent’ licence. The Scottish Government consulted on this and I have no doubt that representations were made on behalf of businesses such as yours. If the government does go ahead and impose limits, it would do so by triggering a power to introduce regulations. That power is currently dormant and it would seem that the matter is still under consideration.
Q: Is there anything to prevent my 17-year old niece from working in my restaurant? She would only be taking food orders and serving food. Another member of staff would deal with drinks orders.
A: There’s no problem with that arrangement, but with provisos. Check that your premises licence allows young persons to be on the premises during the hours your niece would be working. Also, since she would be going back and forth to the kitchen to place orders and collect food, ensure that she has access to that part of the premises, not simply the dining area. I’m aware of a case where a licence had to be varied so as to allow waiting staff aged under 18 to enter a pub’s kitchen. The premises licence simply provided that young persons (and children) had access to “all public parts of the premises”.
Q: I’m the holder of a personal licence. Last year the police found me sleeping in my car on a street after a row with my girlfriend and following a visit to the local pub. I had no intention of driving until I’d sobered up but the police said I was in charge of the car. The case came to court and I pled guilty. I notified the licensing board of the conviction and they’ve arranged a review hearing. The letter from the board says that the licence may be endorsed, suspended or revoked. I’m currently the premises manager at a pub. If I lose the licence or it’s suspended the likelihood is that I’ll lose my job or be demoted. What can I expect at the review hearing?
A: If the police haven’t recommended that the licence should be refused that’s a promising starting position. Otherwise, assuming that you have a previously clean record, I reckon the worst you can expect is an endorsement. It is of course important that you get expert professional representation at the hearing.
Q: I manage a large hotel with a restaurant open to the public as well as residents. The terminal licensed hour under the licence is 1am. Am I correct in saying that customers staying in the hotel overnight can continue to sit in the area and order alcohol after that time (if I have sufficient staff)?
A: The Licensing (Scotland) Act allows alcohol to be sold to and consumed by a person who resides on the premises outwith licensed hours. Otherwise, in relation to non-residents, alcohol can be consumed at a meal at any time within 30 minutes of the end of licensed hours, provided (1) the alcohol was sold during licensed hours; (2) at the same time as the meal; and (3) for consumption at the meal. You’d have to be sure that those staying on are residents. If there’s a visit by police or an LSO, the production of a key card or some other evidence of resident status will inevitably be required.
Q: I shop occasionally in a convenience store down the road from my pub. On most visits there are large stocks of beer multipacks and other alcohol products sitting on the floor between the aisles and adjacent to the wine display shelving. I’m pretty sure this is illegal, not to mention a tripping hazard. Can you advise?
A: In all likelihood the shopkeeper is ‘overtrading’. It would be very unusual for a premises licence to authorise that sort of arrangement. The premises licence operating plan sets out the off-sales capacity while the associated layout plan identifies the display areas. A departure from these arrangements constitutes a criminal offence. I’m aware of a case where police officers detected off-shelf displays, only to be told by shop staff that they were just about to stock up the shelves. That didn’t wash, and the matter was reported to the Procurator Fiscal for prosecution.
Q: I’m about to overhaul my restaurant’s wine list and would be grateful for clarity on pricing. We’ll continue to sell wine by the glass, but it will be cheaper to buy a whole bottle. Is that allowed under licensing laws?
A: There’s no problem with that approach but always provided that there’s no attempt to incentivise the purchase of a bottle. The Licensing (Scotland) Act 2005 bans a promotion which involves encouraging, or seeking to encourage, a person to buy or consume a larger measure of alcohol than the person had otherwise intended to buy or consume. I suppose there might be a quibble as to whether a bottle is a “measure” but my advice would be to stay away from that sort of practice.
Q: I’m heading towards retirement and planning to lease my pub to a senior member of my staff. What should I be thinking about in terms of licensing?
A: A question arises as to whether a landlord should hold the premises licence or allow it to be transferred to a tenant but the latter course poses a substantial danger. If there’s a fall out, it’s simply impossible to prevent a tenant surrendering the licence if he or she is minded to do so. I’ve been involved in a number of cases where that has happened – with inevitably calamitous consequences. So, it’s normal for the landlord to keep hold of the licence, but that too carries risks. If the premises aren’t properly managed and come to the adverse attention of the police, it’s the landlord who is accountable in the event of a licence review. In that situation, licensing boards will have absolutely no time for a landlord who adopted a hands-off approach. It’s therefore vital that landlords keep a very close eye on how the premises are being run.
Q: I run a pub and hold the premises licence. I recently launched a takeaway offer with a delivery service which is proving very popular. I’ve been managing the deliveries on my own but it’s proving a struggle to keep up with demand and I now need to employ someone to help. What precautions should I take?
A: It is essential the person making the deliveries carries out the Challenge 25 procedure. Where the person accepting a delivery appears to be younger than 25 years of age, an approved proof-of-age document must be produced. Those are: (A) a UK or EU photocard driving licence; (B) a passport; (C) a Ministry of Defence identity card (Form 90); (D) a photographic ‘PASS card’ with a hologram; and (E) a national identity card issued by an EU member state, Norway, Iceland, Liechtenstein or Switzerland. Biometric immigration documents are also acceptable, but most people are unfamiliar with these so I’d be inclined to drop them from the list. I suggest you issue written instructions to the driver explaining the procedure and listing the above forms of ID, obtaining a written acknowledgement. You should also provide regular reminders about their responsibilities. And bear in mind that a record of alcohol sales must be kept. This falls into two parts. A ‘day book’ requires to be kept at the premises recording, before the despatch, (1) the quantity, description and price of the alcohol; and (2) the name and address of the person to whom it is to be delivered. (It can only be delivered to that address.) The person carrying out the delivery must carry a book or invoice with the same information. Failure to take these steps is an offence, and it’s also an offence not to produce the documentation to a police officer or LSO when required. Remember too that there’s a ban on alcohol deliveries between midnight and 6 am.
Q: I operate a pub in a tourist area and plan to convert unused staff accommodation into letting bedrooms. How do I go about the licensing procedures?
A: You’ll need to apply to the licensing board for a major variation of your premises’ licence to add ‘accommodation’ as an ‘activity’. A new layout plan will also be required to show the bedrooms and any other alterations to the property. Unless the application attracts objections, I would expect this to be straightforward, although it may be several months before the application is considered. Other adjustments to the operating plan will require to be made: for example, in relation to access by children and young persons. You’d be advised to seek expert help – and don’t forget to check the planning position.
Q: A young man came into my pub the other day accompanied by a girl who may have been under 18. He ordered a meal for both of them, together with a glass of wine for himself and a cider for the girl. We have a sign warning about underage alcohol sales. It also says that it’s an offence to buy or attempt to buy alcohol for a person under 18, but the customer was adamant the girl was aged 17 and could have the cider if he made the purchase. I decided to play safe and decline the sale. Was that the correct approach?
A: As I explained in a previous column, provided the alcohol is purchased by an adult, a young person (aged 16 or 17) is allowed to consume beer, wine, cider or perry with a meal supplied on the premises. The notice to which you refer is required by Section 110 of the Licensing (Scotland) Act 2005 but it’s misleading in this respect. Of course, in addition to operating Challenge 25 in relation to the adult, you also want to be satisfied as to the age of the person for whom the alcohol is being purchased.
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