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Legal Q&A: 2018

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: It’s the same as in all licensed premises. Alcohol sold during licensed hours can be consumed within the period of 15 minutes after the end of those hours. The period is extended to 30 minutes where the alcohol was sold at the same time as a meal and for consumption at the meal. Again, it has to be bought before the end of licensed hours.

A: As I expect you’re aware, there are a number of grounds on which you can’t deny access by members of the public: race, gender, disability and so on. But in my view there’s nothing to stop you turning away this customer.

A: It seems that you’ll be taking tasting ticket orders at home and possession of a ticket would entitle the purchaser to a sample. That plainly amounts to the sale of alcohol from your house and it would most certainly need to be licensed. So, that’s an obvious straight answer – but licensing the house will be very problematic to say the least. If you re-model the business proposition there are a number of more straightforward solutions. Think about a website and hiring a small storage unit for a premises licence. It’s not licensing rocket science but you must invest in some further expert advice on this.

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’.

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.

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.

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.

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.

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.

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”.

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.

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.

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.

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.

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.

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.

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

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).

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

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.

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.

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.

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.

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.

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.