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Legal Q&A: 2013 and before

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?*

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A: Your question suggests that your conviction might have been incurred outwith Scotland. In that case, it would be considered a “foreign offence”: that is, broadly speaking, an offence committed outwith Scotland which would be a crime in this country of a type which requires to be declared to a licensing board. It’s important to understand that certain convictions become ‘spent’ after a certain period in terms of the Rehabilitation of Offenders Act 1974, which means that they need not be disclosed on an application form, nor may the police bring them to the attention of the board when producing their report. Because it’s an offence not to declare an ‘unspent’ conviction you should speak to a solicitor who will be able to advise properly when he has full details of the background. If the licensing board is able to look at the conviction, they have to decide whether your application requires to be refused for the purposes of the licensing objectives. Much will depend on the actual circumstances; and a solicitor will be able to advise.

A: The Licensing (Scotland) Act 2005 closed a previous ‘loophole’ that may well have allowed this customer offer. In terms of section 3 of the Act, where the supply of alcohol is “made to, or to the order of, a person pursuant to a right acquired by the person under a contract” the “supply” is to be treated as a “sale”. In plain language, that means it’s not possible to supply alcohol as part of a package unless the premises is licensed.

A: Mandatory conditions attached to every premises licence provide that the sale of alcohol – and the carrying on of any other activity – must be in accordance with the licence operating plan. According to guidance issued by the Scottish Government in April 2007, there’s an obligation to remain open for the sale of alcohol throughout all the authorised licensed hours. The guidance also indicates that boards ought to take a “common sense” approach before calling a review and reducing trading hours.

This interpretation is simply wrong. There is no ‘duty’. The conditions simply restrict the sale of alcohol and the conduct of other activities to what is permitted in the operating plan – but they don’t compel. To the best of my knowledge there has never been a single case of an operator being called to account by a licensing board for failing to stay open throughout the authorised hours.

A: Clubs operating on a ‘not for profit’ basis benefit from certain dispensations provided that they have a constitution and rules containing certain specific provisions: for example, the business of the club is to be under the management of an elected committee or other governing body and must keep proper financial records. Those clubs are not exposed to an ‘overprovision’ ground for the refusal of a licence, may apply for occasional licences in respect of their own premises and need not name a premises manager. However, staff involved in the sale or service of alcohol do require to undergo the usual mandatory training.

A: If you hold a personal licence, you can train staff. I assume you’re aware that the mandatory content of the training is set out in regulations and it must be ‘signed off’ using a form prescribed for that purpose. However, if there’s a clause in your lease stipulating that the landlord will provide training and charge a particular fee, then it would appear that you have no room for manoeuvre.

A: Staff in general aren’t obliged to undergo refresher training, but that requirement falls on all personal licence holders, with no exemption for those working in a club. Your question betrays the misunderstanding exposed in my last column. If refresher training is carried out after the five year deadline the personal licence will be revoked. Training must be completed during the five years from the date on which the licence was issued. If a club satisfies certain criteria then it’s treated as a ‘qualifying club’ and benefits from a number of dispensations. Staff involved in selling or serving alcohol must undergo training but there’s no need for a premises manager, nor do alcohol sales require to be authorised by a personal licence holder. This is pretty complicated, and I’ll be taking a closer look at the position of clubs in a future legal column.

A: Generally, an offence is committed if, outwith licensed hours, a person (a) sells alcohol, or allows alcohol to be sold, on licensed premises; (b) allows alcohol to be consumed on licensed premises; or (c) allows alcohol to be taken from licensed premises.

There are a number of exceptions, including the one you’ve identified. In order to correct a technical error, the terms of the Act which you have quoted have been amended so that it is not an offence to “sell alcohol or allow alcohol to be sold on or taken from licensed premises if the alcohol is sold to a person who is a trader for the purposes of the person’s trade”.

As you’ll gather, until the wording was corrected, it would have been perfectly lawful to make a trade sale of alcohol outwith licensed hours – but the purchaser would have committed an offence by removing the goods from the premises.

Your interpretation of the law is correct, although I find it difficult to imagine any circumstances in which a trader would, for trade purposes, require to buy alcohol out-of-hours for consumption on the premises.

For completeness, I ought to mention that Section 120 of the Act makes it an offence to sell alcohol for consumption off the premises if the delivery of the goods takes place between midnight and 6am, but deliveries to licensed premises during that period are exempt.

A: The whole regulation of members’ clubs has now completely moved from the sheriff court to the local licensing board. In terms of the Licensing (Scotland) Act 2005, a club’s office bearer is regarded as a ‘connected person’. There’s an obligation to notify the licensing board not later than one month after a person becomes or ceases to be a connected person. In the case of a new connected person, the notice has to specify the relevant person’s name, address and date of birth. Failure to comply with this requirement is an offence, and a conviction will lead to the review of the premises licence.

A: You can, of course, refuse any sale except on discriminatory grounds (race, disability, and so on) so the staff member was indeed acting within their rights. Obviously, if the relationship between the purchaser and the boy was known to your employee, it would have been reasonable to proceed with the sale and I suppose it’s unlikely that an agency purchase would be attempted in such a blatant fashion. However, it’s always prudent to take an ultra cautious approach and risk losing a sale, even a customer’s loyalty, rather than putting your premises licence in jeopardy.

A: Provided that three requirements are all satisfied – alcohol was sold during licensed hours, at the same time as a meal and for consumption at the meal – then alcohol can be consumed at a meal within 30 minutes of the end of licensed hours.

A: Just to recap, the following documents are currently acceptable as proof of a customer’s age: a passport; a European Union photocard driving licence; and a photographic identity card bearing the national Proof of Age Standards Scheme hologram (a PASS card).

As a result of new regulations coming into force on October 1, you’ll also be able to accept from that date (but not before): a Ministry of Defence Form 90 (Defence Identity Card); a national identity card issued by an EU member state (other than the UK), Norway, Iceland, Liechtenstein or Switzerland; and a biometric immigration document.
This expansion is very welcome, but I’d urge some caution. It’s up to the licence holder to decide what will be accepted.

There’s no obligation to sell alcohol to a person producing what appears to be, for example, an EU identity card.

In fact, I’m inclined to go a stage further and suggest that, unless staff are familiar with the appearance of the new forms of documentation it will be wise to leave matters as they are.
Remember to update your age verification policy, which must be in place as a mandatory condition of every premises licence.

I understand that the Challenge 25 website will be updated at the beginning of September to reflect the changes. I urge readers to take advantage of this valuable resource.

A: It would appear that the complaints resulted in a review of your premises licence and the board imposed a variation removing your ability to provide live performances.

The 2005 Act contains a mechanism which could result in that decision being reversed. You would need to make an application under section 40, which can be done by letter. No fee is involved.
In the letter you must set out the “change of circumstances” to argue that the variation is no longer necessary.

Clearly, there’s no point in embarking upon the application unless you have taken steps to cut down the noise. If you have not already done so, seek the services of an acoustic consultant.

Obviously, the implementation of their recommendations is likely to have cost implications.

You’ll wish to avoid spending money and find that your application fails, so it’s essential you contact environmental health. If you manage to get them “on side” your bid will have a good chance of success.

A: You’ll need to make an application for a major variation seeking to add accommodation to the list of operating plan activities and other adjustments are likely to be required, for example, in relation to access by children and young persons. This is not a straightforward process and you’d be wise to get your licensing lawyer involved at the very start.

A: If there are to be any increases in licensed hours then the club must apply to the board for a non-minor variation of the operating plan. So far as reductions are concerned, you could apply for a minor variation.

However, is the club actually obliged to make the minor application and, if not, would it be sensible to do so?

When boards started accepting premises licence applications in 2008 a tiny number insisted that there was a ‘duty to trade’; in other words, the licence holder must open for alcohol sales throughout the authorised hours or face a licence review.

That approach is based on a mandatory premises licence condition: “alcohol is to be sold on the premises only in accordance with the operating plan contained within the licence”.

In my opinion, that requirement simply seeks to prevent the sale of alcohol beyond licensed hours – a view that has the support of every licensing lawyer I’ve spoken to, but it’s not shared by the Scottish Government. (Its guidance to boards does, however, recognise that there will be circumstances in which it will be impossible for premises to stay open, for example, during adverse weather).

If you did proceed with the minor application, you could only increase the hours in the future by seeking a non-minor application, which is costly and time consuming. This advice comes with the usual ‘health warning’ – the committee will have to come to its own view about this – but for the sake of future flexibility I’d be inclined to leave the operating plan as it is.

A: In relation to off-sales, there are a number of critical considerations. The operating plan contained in the licence will set out the off-sales capacity while the approved layout plan shows the location of the alcohol displays. Typically, a convenience store will have a selection of high-value products behind the sales counter as well as a public display area. It’s vital to make absolutely sure that the size of the displays is sufficient for your needs. You can reduce the capacity by means of a minor variation, which the licensing board is obliged to grant; but an increase is treated as major variation and open to a refusal. The relocation of a display resulting in the same or reduced capacity requires a minor variation. If in doubt, discuss the plans with your licensing lawyer.

It’s also vital to make sure that the licensed hours will meet your needs. The overwhelming majority of off-sales licences provide for the maximum hours – from 10am to 10pm seven days a week – but I occasionally come across those where the operator has, for some reason, decided to limit the hours. There’s also a possibility that a restriction has been imposed by the licensing board – a clear red flag, of course. If you propose to remain open after 11pm you’ll almost certainly require a late hours catering licence from the local council. Finally, be aware that some operating plans set out the overall trading hours – not just the licensed hours. For example, a licence might provide that the premises opens for business at 7am each day. Any alteration to that would require a major variation. I remain bemused by the necessity to make a potentially costly application for such a change.

A: Absolutely not. There’s no exemption for staff employed for short periods or for part-time staff. If an employee sells or serves alcohol the mandatory training must be carried out and the correct record kept. If you fail to comply you face prosecution and a review of your premises licence.

A: So far as your premises licence is concerned, the likelihood is that no action will be required. However, some licensing boards have insisted that the operating plan set out the overall trading hours, not just the times when alcohol will be sold. In such a case the premises licence will require to be the subject of a major variation. Check the licence and if still in doubt speak to your lawyer.

It’s more probable, however, that you will require to obtain a ‘late hours catering licence’ from the council. Depending on local arrangements, this type of licence is needed for the sale of ‘food’ – anything from a packet of chewing gum to a full-blown meal – during the period from 11pm to 5am the following morning. Until recently, the requirement only arose when ‘meals or refreshment’ were being sold, but the Scottish Government decided to broaden the scope of the law. They considered that the risk of antisocial behaviour existed where prepared food was being sold after 11pm. Not all councils have followed through on the change, so investigate the position with the local council’s licensing department.

A: It depends on what’s set out in your premises licence operating plan. It looks as if you will require to make an application for a ‘non-minor’ variation of the licence. That involves the proposal being advertised and a hearing before the licensing board. The process could take several months.

A: The answer is likely to turn on your ‘diligence systems’. In other words, has the mandatory staff training been carried out? Do you have the appropriate training records? Have you implemented an age-verification (Challenge 25) policy? Have robust steps been taken to prevent underage sales, such as till prompts reminding staff to assess the customer’s age, refresher training, appropriate signage, and so on? If you can demonstrate that the failed test purchase took place because of human error, despite your best efforts, then the result should normally be a warning or no action might be taken at all. However, some boards will normally suspend a licence for a short period, even where the licence holder might appear blameless. The law in this area is about to be clarified. A judgment is shortly to be issued by the Court of Session in an appeal case involving a supermarket which suffered a five-day suspension following a failed test purchase. Lidl has contested a sheriff’s decision that the Glasgow board had been entitled to take a “deterrent” approach and “send a message” to other operators, although it seemed that the company had proper systems in place.

A: Absent the involvement of the police there is absolutely nothing you can do. If the staff member was charged with, and convicted of, assault he would be bound to notify the board and that would lead to a review of the personal licence. But as matters stand his personal licence simply cannot be affected by the incident. I ought to add that while there’s currently no ‘fit and proper person’ test, as I explain elsewhere on this page that is likely to change before long.

A: Of course a sale or club ‘supply’ of alcohol would be ‘unlicensed’ – and therefore an offence – if it took place on premises which were not subject to a premises licence or an occasional licence. However, if the licence is no longer in effect and members are coming together to consume their own alcohol on private property it’s difficult to detect a problem. That said, I’m not clear as to the full background here and since the LSO sees this as a grey area for safety I’d be inclined to let the police know the new arrangements.

A: This is a familiar tale. In my experience, licensing boards will insist in sending the annual reminder to the premises licence holder’s address as shown on the licence (although the relevant regulations simply provide that “notification” is to be given). That may be an appropriate course, although one might expect a degree of flexibility. It appears that the board has initiated a review of your premises licence, as it is entitled to do, because every premises licence is subject to a “mandatory condition” that the annual fee is to be paid in accordance with the relevant regulations, that is, no later than October 1. In your case, I’d expect the board simply to issue a warning. However, it would be wise to ensure you do not find yourself in a similar position next year. I am aware of cases in which ‘serial offenders’ have suffered a short suspension of the licence.

A: There’s no problem with that proposal with three provisos. Firstly, the hamper contents cannot be broken up for individual sale: the non-alcoholic items must only be available for purchase with the alcohol. Secondly, you must resist any temptation to augment the size of the alcohol area by adding the hampers to your existing authorised display. The display ‘capacity’ will be set out in the licence. Thirdly, the hampers must be positioned in a place authorised by the layout plan.

A: It looks as if the restaurant licence has expired because it was not renewed under the provisions of the old licensing Act and, accordingly, it could not be converted to a premises licence under the Licensing (Scotland) Act 2005. In any event, there is no possibility of a transfer and if you did decide to resume alcohol sales you would need to apply for a premises licence. However, if you will not be selling alcohol no licence is required unless food sales will take place in the period from 11pm to 5am on any day, in which case you’ll need a late hours catering licence under the Civic Government (Scotland) Act 1982.

A: As I explained more fully in my last legal column, all premises licence holders must have an age verification policy in place but there is no legal obligation to have supporting signage. I can’t see how a failure to display posters could ever result in a review of a premises licence. Nevertheless, posters and other materials are a useful signal that you’re aware of your obligations and, in my view, it would be foolish not to display the sort of materials available here: http://bit.ly/pCQ1UA. In the event of a sale of alcohol to a person under 18, I’d expect the absence of signage to count against you.

A: Originally, the Licensing (Scotland) Act 2005 provided that a provisional licence had a currency of two years. It also created a safety net in certain circumstances. Provided an application was made before the end of the two years, the board could push back the expiry date where it was satisfied there had been a delay in the construction or conversion of the premises “caused by factors outwith the premises licence holder’s control”. The ability to extend is discretionary: the board “may” extend the provisional period but there’s no guarantee.

Now, provisional premises licences last initially for four years with the same possibility of an extension. During the passage of the Criminal Justice and Licensing (Scotland) Act 2010 the Scottish Government was receptive to representations that investment in large-scale projects could be jeopardised if there was no guarantee that the licence would last more than two years.

The change came into force on December 13, 2010 and I’ve heard it suggested that it only applies to provisional premises licences granted after that date. In fact, where a provisional licence has been issued before December 13, 2010 and it has not expired by that date, the four-year period applies. So, a licence issued in June 2009 was still ‘live’ when the amendment took effect and therefore runs for four years. That would appear to give you breathing space.

A: Despite the appeal, you must, within one month, give notice of the conviction to the board which issued your licence; or, if different, the board for the area in which you’re working.

The board must hold a review hearing and is not disabled from taking action in light of the conviction, but it can postpone action for such period it “considers appropriate” pending the appeal. If the board does decide to proceed with a licence review hearing and the conviction is overturned by the appeal court, any action taken has no effect and the board must restore you to the position you would have been in had the action not been taken.

Obviously, you’ll want to take advice from a specialist licensing lawyer, who can deal with the notification procedure, but I suspect the board will decide to put a licence review on the backburner until there’s a decision on the appeal.

A: If, as it seems, the off-shelf alcohol is available for purchase then the standards officer is correct. You can only display alcohol in the area shown on the layout plan attached to your premises licence. Failure to stick to that plan is an offence and could lead to your licence being reviewed.

A: As I think you have deduced, this sort of conviction becomes spent after five years. You were correct to disclose the details in the application and the police were equally obliged to confirm the existence of the conviction. However, it now appears that the conviction will be spent at the time of the hearing next month and it will require to be disregarded.

A: As I think you have deduced, this sort of conviction becomes spent after five years. You were correct to disclose the details in the application and the police were equally obliged to confirm the existence of the conviction. However, it now appears that the conviction will be spent at the time of the hearing next month and it will require to be disregarded.

A: Where alcohol is sold for consumption off the premises, the “capacity” is to be treated as “the amount of space in the premises… given over to the display of alcohol for sale”. If building standards is proposing to calculate a capacity for your warehouse that is entirely inappropriate. In the nature of your business you will not be “displaying” alcohol for sale at the premises. Your solicitor is correct.

A: As you’ll appreciate, bankruptcy is not my area of legal specialisation. However, from a licensing perspective, your bankruptcy has no impact on your personal licence, so there’s nothing to prevent you being a premises manager – although a prospective employer may want to know about a candidate’s existing or previous bankruptcy. Incidentally, the position is distinctly different where the premises licence holder is adjudged bankrupt. In such a case urgent steps must be taken to have the licence transferred.

A: Personal licences are initially valid for ten years. A licence granted between February 1, 2008 and August 31, 2009 is deemed to have started on September 1, 2009 when the new Act came in. But updating training is a different matter. Five years from the date the licence was issued, personal licence holders have a period of three months to produce evidence of retraining to the licensing board. A personal licence granted on, say, July 1, 2008, will show an expiry date of August 31, 2019 – but the five-year period runs out on June 30, 2013. There are plans to overhaul the personal licence qualification and devise a specification for refresher training – but there are worrying indications that the urgency of the latter step may not have been grasped. If this goes off the rails, the consequences will be dire: failure to produce evidence of further training will result in the personal licence being revoked, and, where a premises manager does not hold a personal licence, alcohol sales must cease forthwith.

A: The Scottish Government has recently completed a consultation on changes to the approved proof of age documentation. The Ministry of Defence Form 90 (defence identity card) will almost certainly feature in the new list of acceptable forms of identification along with (possibly) certain national ID cards and biometric residents’ permits. Until new regulations are brought in, you must stick to the current rules.

A: At the same time you apply for a transfer of the premises licence you should also make an application for a variation of the approved plan to reflect the new layout.

There are two types of variation: ‘minor’, which the licensing board must grant, and ‘major’, which requires to be advertised and considered at a board meeting, with the potential for lengthy delays. The addition of outdoor drinking facilities to the operating plan will take you into the latter category, as may your other proposals. However, it may be possible to get some of the re-fit work authorised quickly if you submit a ‘minor’ variation as a holding operation.You should also check the premises licence operating plan in case anything else needs to be varied.

A: There are two types of offences requiring to be declared: a ‘relevant offence’ and a ’foreign offence’. The list of relevant offences includes those under the Licensing (Scotland) Act 2005. An offence under the Licensing Act 2003, which applies in England and Wales, will almost certainly constitute a foreign offence as being similar in nature to a relevant offence. Remember that the Rehabilitation of Offenders Act 1974 applies and the offence will almost certainly become ‘spent’ after five years so it might be worth delaying the application.

A: Patterns are emerging in relation to the way in which different licensing boards deal with a test-purchase failure. Assuming that the usual follow-up test purchase is passed, some will simply issue a warning.

Others will suspend the licence even for a first offence. In many cases the suspension period has ranged from two days to two months. In a recent case, two underage sales (not involving test purchasing) led to a licence being suspended for six months, reduced to four on appeal.

The 1976 licensing Act allowed the continued operation of premises where a suspension had been ordered until the appeal procedure had been exhausted. That could be a very long time – in one case, where it was clear that the premises posed a real threat to public safety, the licence holder managed to keep trading for almost three years.
Now suspensions have immediate effect – with a safety net of sorts. When lodging an appeal with the sheriff court, the licence holder can asked for ‘interim recall’ of the sanction. The judge has to be satisfied that “on the balance of convenience” it is appropriate to place the board’s decision in abeyance until the appeal process has concluded.

In practice, this interim recall can be a very unsatisfactory remedy. Depending on the sheriff court concerned, it can take several days to organise a hearing. In the case of a short suspension it may not be worth the hassle or expense. While it’s possible to ask the board to allow a stay of execution so the recall procedure can be invoked, I would not be hopeful.

The recall mechanism needs some advance planning – now would be a very good time to speak to your licensing solicitor.

A: A number of premises licence mandatory conditions relate to training. Staff selling alcohol (or serving alcohol for on-consumption) must have undergone prescribed training, and a record of that must be kept which “must be produced to a licensing standards officer on request”.

The Licensing (Scotland) Act 2005 separately provides that a constable “may at any time enter and inspect any licensed premises” and any person who intentionally obstructs the exercise commits an offence.

In my view the entitlement to “inspect” isn’t wide enough to require the production of a training record, especially having regard to the exclusive reference to a standards officer in the relevant mandatory condition. If I am correct, it follows that a failure to produce a training record to a police officer is not an offence. However, failure to comply with a standards officer’s request – or any of the other training requirements – could result in a prosecution. While that’s my view of your rights, I’d also advise against testing the matter.

*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.

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