Legal Q&A | 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: If a club sells a certain drink at, say, £2.50 on a Saturday then on Sunday changes the price for the same drink to £1.00 is this legal in Scotland?

A: Price variations are permitted provided the change is introduced at the start of licensed hours and maintained for at least 72 hours. So, the price of the drink couldn’t be increased just for Saturday’s trading. But assuming that it had cost £2.50 on Thursday, Friday and Saturday (or for longer), the price could be reduced to £1.00 on Sunday and that reduction would then require to be maintained for the 72-hour period. In relation to on-sales, during the 72 hours the price of all alcohol sold on the premises is ‘frozen’ so that no further variations may be introduced. So far as off-sales are concerned, where the price of a particular product is altered, it’s only that product that’s affected by the ‘freeze’.

Q: I work in a pub running a monthly draw for customers buying one of our cocktails. They just need to fill out a form with their details. The price of the cocktail isn’t increased for the purpose of the draw. The randomly-selected winner receives a bottle of alcohol which can’t be consumed on the premises. My area manager says this is an ‘irresponsible promotion’ and has to stop. Do you agree?

A: Offering alcohol as a ‘reward or prize’ is an ‘irresponsible’ promotion unless it’s in a sealed container and consumed off the premises. Your promotion clearly meets those conditions. As you appear to have appreciated, entry to the draw can’t carry a cost that’s hidden in the price of the cocktail. Remember, too, that customers completing the form must ‘opt in’. I imagine the information they provide is going to be used for marketing purposes and the rules regulating the use of personal data have of course been stiffened by the introduction of the General Data Protection Regulations earlier this year.

Q: Is it illegal to run a bar tab in Scottish pubs and bars?

A: No. The Licensing (Scotland) Act 1976 contained a general ban on credit sales which stopped the purchase of drinks being put on a slate, with a few exceptions. Those provisions weren’t carried over to the Licensing (Scotland) Act 2005.

Q: Can under-18s buy soft drinks and crisps at our bar when they are at a party? They are all accompanied by adults but have been refused service by staff members. Is it against the law?

A: Selling food and non-alcoholic drinks to persons under 18 certainly isn’t an offence but the ban may be a result of the operating plan in the licence. Some licensing boards will only permit children and young persons access to a bar area provided they are not allowed near the bar counter – even if accompanied by an adult. In fact, the ‘exclusion zone’ might be marked out with a red line on the licence layout plan. Otherwise, this may just be a management policy.

Q: We’re a small bowling club and have been approached about catering for an 18th birthday party. However, we have been told we need a special licence for this sort of function. Is this correct?

A: You don’t need a “special licence” as such but you do have to make sure you’re covered by the premises licence operating plan. Does it allow functions? What does it say about access for under-18s who might be attending the event? Some operators are reluctant to take this kind of booking because their management can be problematic. In fact, East Lothian licensing board is contemplating a policy change that would see a requirement for the police to be given at least two weeks’ notice where it was proposed to host 18th or 21st birthday parties.

Q: Can we have a band member under the age of 18 in our pub? He would be accompanied by someone over 18 and not served alcohol.

A: The answer depends entirely on what’s set out in the premises licence operating plan. There you’ll find the times when under 18s are allowed to be on the premises, the parts of the premises to which they have access and the terms of entry. Purely as an example, an operating plan might provide that children and young persons are permitted entry to all parts of the premises until 9pm provided they are accompanied by a person aged 18 or over.

Q: My hotel licence incorporates permission for off-sales with the usual 10pm finishing time. What happens if a resident wants a drink to take to their room after that time and is staying in a lodge in the hotel grounds?

A: It’s not an offence to: (a) sell alcohol or allow alcohol to be sold on licensed premises outwith licensed hours if the alcohol is sold to a person who resides on the premises; or (b) allow alcohol to be consumed on or taken from licensed premises outwith licensed hours if the person consuming or taking the alcohol resides on the premises. If only the hotel building itself is licensed, then a lodge resident doesn’t “reside on the premises”. The sale would require to be completed by 10pm and the alcohol removed by 10.15pm in a sealed container. I doubt that snag was intended, but the 2005 Act didn’t carry over a provision in the 1976 Act deeming a person to “reside” on premises if occupying an “annex or overflow” building. On the other hand, I know of cases where a hotel and outbuildings with sleeping accommodation all fall within the licence. In such a case, the sale and removal of alcohol could take place any time: the person staying in an outbuilding would be “residing on the premises”.

Q: Our licensed community hall is looking to let out the premises for a 21st birthday party. The clients want to just hire the hall, not the bar facility, but they want to bring their own drink. Do staff have to be on site and how do we stand with the operating plan?

A: You’d require to comply with every detail of the operating plan: licensed hours, arrangements for access by children and young persons and so on. This is exactly the sort of event operators view as ‘high risk’ so you should consider very carefully whether you want to take the booking. If you do, it’s essential that staff are on duty to ensure compliance with the licence and monitor the behaviour of those attending.

We run a guest house with bar and hold a premises licence. We had an issue with a local ‘glamping’/B&B offering a “free bottle of wine with your pod” promotion. I asked our local licensing standards officer and he had a word with them and they changed it to “a free bottle of something”. Should I continue to challenge this or give up?

A: As you’ve correctly deduced, that promotion can’t be operated without a premises licence. However, it’s doubtful whether standards officers have jurisdiction here: their core function is to supervise licence holders. On that account, since the other business may be committing a criminal offence (see below), you may want to refer the matter to the police for further investigation.

Q: Could you please tell me what the likely fine would be for a company which is found guilty by a court of selling alcohol to the public without a premises licence?

A: The actual fine would depend on the facts of the case, so I can only tell you the potential penalty: a fine not exceeding £20,000, imprisonment for up to six months or both.    

Q: I’ve been told on a training course that it’s illegal to accept a credit card payment for alcohol unless it’s supplied with food. Is that correct?

A: The Licensing (Scotland) Act 1976 prohibited so-called ‘credit sales’. There were a number of exceptions: for example, where alcohol was consumed with a meal and paid for with the food. The restrictions weren’t carried forward in the Licensing (Scotland) Act 2005, so what you were told is incorrect.

Q: Could you tell me, is it legal in a golf club to offer ‘buy two, get one free’ on alcohol, and offer on certain days a reduced price on drink?

A: The multibuy offer is classed as an “irresponsible promotion” that would breach a condition of the premises licence and also amount to a criminal offence. Price reductions are permissible, but they must start at the beginning of a period of licensed hours and run for a minimum of 72 hours. In the case of alcohol sold for on-consumption, no further price variations, of any product, may be introduced during that period.

Q: I have hired a bowling club for a private function. It’s due to start at 7pm and end at midnight. I have family travelling from England and different parts of Scotland. When I made the booking I was told it was okay to have children at the party. Now I have been told the children need to leave at 9pm. Can I pay for a special licence so the children can stay until 11pm? It is not worth family travelling a long distance to only be there for two hours.

A: The 9pm watershed will be set out in the club’s premises licence. I’m afraid there’s no “special licence” solution. In order to extend the time for children’s access, the club would have to apply to the local licensing board for a major variation of the licence. That process could take several months with no guarantee of success. Since the club didn’t tell you about the restriction at the time of booking, I reckon you might want to consult a solicitor about a compensation claim.

Q: My restaurant’s licensed hours start at 12 noon. Can I supply aperitifs before that time and take payment later by adding the cost to the customers’ bills?

A: No. Allowing the consumption of alcohol outwith licensed hours is an offence, even when no money has changed hands.

Q: What can I do about a person bringing their own soft drink onto my licensed premises?

A: There’s nothing to prevent you refusing service.

Q: Would I need a licence to operate an honesty bar in my bed and breakfast establishment?

A: Yes. You require a licence if you sell alcohol, provide it in the expectation of payment or offer it as part of a paid-for package (even if the alcohol is ostensibly free of charge).

Q: Is it correct that spirits have to be all displayed in one continuous area in an off-licence? The only second area being permitted is behind the sales counter or in a separate kiosk – you cannot have a separate bay or area for special offers? I certainly was told this when setting up a shop. Does this still apply as I can’t find it anywhere in my training manual or through online research?

A: That’s basically correct. In convenience stores, supermarkets and specialist off-sales shops, alcohol (not just spirits, of course) can only be displayed in one or both of: (a) a single public area; and (b) an area to which the public have no access (typically, behind a service counter where high-value items are kept). These areas are shown on the licence layout plan. The public area doesn’t need to be “continuous” as such. So, in convenience stores and supermarkets you might find two or more aisles with rows of alcohol shelving and perhaps end-of-shelf displays. In specialist shops (Majestic, Oddbins and the like) the whole sales floor will – quite legitimately – be given over to the display of alcohol on shelves and plinths. As I’ve repeatedly said on this page finding the up-to-date version of the Licensing (Scotland) Act 2005 is a real challenge; but more information on the rules regulating display areas is available at legislation.gov.uk

Q: I am about to start a skippered charter business based at a Scottish port and offering day trips for tourists. These will be catered in the form of lunch and afternoon tea but can I advertise complimentary alcohol or would I need a licence to do this? Is a sailing vessel covered under licensing laws?

A: The supply of alcohol on a complimentary basis as part of a paid-for package constitutes a sale for which a licence is required. Generally, the Licensing (Scotland) Act 2005 requires a vessel to be licensed. However, in certain circumstances, they are treated as “exempt premises”: where the vessel is engaged on (a) an international journey, or (b) another type of journey forming part of a ferry service. Your proposition doesn’t fit into either of these categories, but I suspect you would be able to take advantage of a dispensation for small vessels. A licence is not required while there are no more than 50 persons on board and the vessel is not moored or berthed. It’s important to be aware that a substantial number of offences contained in the 2005 Act would still apply: for example, alcohol cannot be sold to a person under 18. Curiously, where a passenger behaves in a disorderly manner and “fails to leave the premises”, he can be removed by the use of “reasonable force”. How that might easily be carried out is not obvious – assuming that he or she is not made to walk the plank.

Q: A member of my restaurant staff decided to placate customers who had to wait a very long time for a pre-booked table by giving the group a free bottle of house wine. Was that allowed?

A: As I’ve said on this page a number of times, there is no absolute ban on giving away alcohol. In the circumstances you describe, the supply of the wine wasn’t linked to an alcohol purchase, so it was perfectly legal.

Q: My friend operates a public house near a major football stadium and was told by the police that on match days he has to operate a “members only” policy. Where does he stand if he refuses to comply? A public house is obviously quite different from a members’ club.

A: There must be a misunderstanding here and I’d advise your friend to speak to the local licensing police to get clarification. As you say, there’s no question of a public house having a membership scheme. At a guess, I suppose it’s just conceivable the police may have suggested that on match days a door policy is operated so that entry is restricted to regular customers – but that’s clearly problematic.

Q: Can I hold a competition in a private members’ club and give out prize money or drinks vouchers to a non-member?

A: The status of the person receiving the prize – member or non-member – is irrelevant. There’s no obstacle to prize money; but on any licensed premises, offering alcohol “as a reward or prize” is considered to be an “irresponsible promotion”, unless the alcohol is in a sealed container and consumed off the premises.

Q: I have a B&B establishment in a tourist area and I have been thinking of placing a small decanter of whisky and glasses in the guests’ bedrooms as a welcome drink. Do I need an alcohol licence to do this as I am offering it for free and not selling it as an extra? Or what about Prosecco in the room on, say, Valentine’s Day as an extra?

A: You can’t supply alcohol free of charge without a licence where the supply is linked to a paid-for service such as accommodation. So, the short answer is: you need a licence for either of these offers.

Q: I was in a pub with my father and nephew before a football match. I was asked to take my nephew through to the lounge where he hears the same colourful language and the clientele is pretty much identical to the public bar. The boy is 14 years old and usually has a soft drink. Sometimes the lounge is bursting at the seams with people with no kids. Why do we have to go through to the lounge? I asked the bar staff but they weren’t helpful.

A: It’s virtually certain this arrangement is in place because the operating plan in the pub’s premises licence restricts access by under 18s to the lounge bar – for whatever reason – so the operator is simply complying with the law.

Q: I’m looking for advice on off-licence regulations within a public house. Are customers able to purchase alcohol within the establishment before 10.45pm, stay until closing and leave with the alcohol purchased?

A: Licensed hours for off-sales – whether in a pub, supermarket or shop – cannot extend beyond 10pm. (That’s the usual terminal hour but it’s possible that the operating plan may contain an earlier time.) In all cases, off-sale purchases must be completed by the end of licensed hours and must be taken from the premises within 15 minutes thereafter; they cannot be removed in an open container. So, assuming a terminal off-sales hour of 10pm, the alcohol must be off the premises by 10.15pm.

Q: Can a hair salon give away free wine to customers getting their hair cut or do they need a licence to do this?

A: The salon would need a licence. The supply of wine in these circumstances is treated as a ‘sale’ because the customer acquires a right to the alcohol under the contract to have his or her hair cut.

*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.