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Legal Q&A: 2014

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: The practices you’ve described suggest that the people running the club in question believe that because it’s a “private” club the normal rules don’t apply. First of all, in relation to training, there’s no exemption for any type of club. Records require to be kept and must be available for inspection by a licensing standards officer. Any failure here will in all probability lead to a review of the licence – and it’s also a criminal offence. Selling alcohol to a drunk is, of course, an offence for which both the member of bar staff and the premises licence holders can be prosecuted. There’s no dispensation from the rules regarding licensed hours so allowing alcohol to be consumed after the drinking-up time is also courting real trouble. What can you do? If you’re a committee member I suggest you resign unless the club urgently mends its ways.

A: The consumption of alcohol is not of itself an offence but it’s not a practice that any management in its right mind would allow. The threshold for “drunkenness” is much lower than you might believe and the risk is just totally unacceptable. Let’s remind ourselves that in just over a week a motorist who has consumed a pint might well be a “drunk driver”.

A: That’s more or less correct. All premises licences are subject to conditions prohibiting alcohol sales where there is no premises manager or the premises manager doesn’t hold a personal licence. However, these conditions are disregarded provided certain steps are taken: (a) the premises licence holder gives the licensing board notice that the premises manager has ceased to work at the premises not later than seven days after the occurrence of that event; and (b) within the period of six weeks beginning with the day of the premises manager’s departure a variation application is made to substitute the new premises manager. You can ask for the variation to have immediate effect pending determination of the application. In other words, your manager is correct about the six-week period – but you must also comply with the initial notification requirement.

A: Closing a loophole in the previous legislation, the Licensing (Scotland) Act 2005 stipulates that a “supply” of alcohol is to be treated as a “sale” where the “right” to the alcohol is acquired under a contract. So, if I become entitled to a glass of wine only where I make a donation payment then the alcohol is “sold” to me. Even a ‘voluntary’ donation might give rise to problems which space prevents me from explaining here. Do not become involved in this event unless an occasional licence is granted.

A: What you describe is, in my view, lawful provided that the supply of the complimentary drink is not conditional on the purchase of (a) one or more other drinks (even a non-alcoholic drink) or (b) one or more measures of the drink. Be aware, however, that there is another view. Alcohol cannot be supplied as a “reward or prize” unless in a sealed container for consumption off the premises. A few years ago pubs and restaurants in one licensing board area were told to cancel a Mother’s Day lunch promotion offering a ‘free glass of bubbles’. The reasoning? The free drink would be a “reward” for visiting the premises (or perhaps a reward for being a mother). You’ll not find a single licensing lawyer who agrees with that interpretation.

A: Since you’ve failed to complete a course by the deadline, the licensing board “must revoke” your licence, leading to a five-year ban on an application for a replacement. However, there may be a lifeline. I’ve seen it suggested that revocation follows “automatically” from a training failure. In my view, that’s not quite accurate, because revocation requires positive action on the part of the board. If I’m correct, until that step is taken, the licence is capable of being surrendered, thus paving the way for a replacement.

It’s likely that boards will review their refresher records some time after December 1 – the deadline for notifying training completion – and then proceed to revoke defaulters’ licences. However, you can’t safely make that assumption: it is possible that your failure could come to the board’s attention at any time.

You should also be aware of potential complications. The surrender of the licence would mean that you can no longer act as premises manager and in this situation nominating a replacement to allow the continuation of alcohol sales involves tricky timing requiring expert advice. Some boards will not accept personal licence applications unless accompanied by a licensing qualification awarded on or after August 1, 2013, so you might need to attend a course. The board is entitled to look at the reasons for the surrender, although I can’t imagine that would lead to difficulty in the circumstances. The position would be different if it became clear that a surrender had been used as a device to avoid a licence being endorsed, suspended or revoked at a review hearing.

We’re clearly moving into uncharted territory where different views might be expected and I suggest you put this in the hands of a specialist solicitor.

A: No matter how much you might trust a prospective tenant, there’s always a chance of a fallout and if he or she holds the licence it might just be surrendered back to the licensing board. I’ve come across spiteful surrenders on a number of occasions and they’re virtually impossible to prevent.

The result can be catastrophic because the only solution is to apply for a new licence – a process that could take up to six months – and there’s always a risk that the application will be refused.

A further word of caution. If management problems lead to a review – which could result in the licence being suspended or revoked – the licensing board will not be impressed by a landlord’s ‘hands off’ approach.

Rather, the landlord, as licence holder, will be expected to have monitored the operation of the premises with a view to ensuring that any developing problems are addressed quickly and effectively.
So, being a pub landlord isn’t just about collecting the rent and you should, of course, make sure that the lease is drawn up by a suitably experienced solicitor.

A: Your licence is subject to a condition providing that alcohol cannot be offered “as a reward or prize, unless the alcohol is in a sealed container and consumed off the premises”. So, you’ll need to come up with another quiz prize that doesn’t contravene this rule.

A: No offence is committed if alcohol is sold “to trade”. A ‘trade sale’ takes place where alcohol or other goods are sold “to a person for the purposes of the person’s trade”. A statement of the obvious – but there’s a complication. Trade sales of alcohol constitute an offence unless they take place on licensed premises “or premises which are used exclusively for the purpose of the selling of goods (whether solely alcohol or not) to trade”. So, putting these provisions together, if you do not obtain a licence you risk prosecution unless every single sale made on your premises – whether beer, wine, groceries or any other commodity – is destined for trade use. So, my advice is simple: apply for a licence.

A: I’ve received a number of enquiries about this problem. The training content leading to Scottish Certificate for Personal Licence Holders exam changed on August 1, 2013 but I can find no evidence whatsoever to justify the claim that certificates awarded before that date have somehow “lapsed”. Nevertheless, I’m hearing that licensing boards are not prepared to give way on this matter. So, unless there’s a hugely expensive legal challenge – and that will simply not happen – it appears that those affected by the change will simply have to stump up for another exam course.

A: Thank you for a very interesting question. For a moment, I thought you might have unearthed a significant loophole in the Licensing (Scotland) Act 2005. As you say, an occasional licence may be granted for unlicensed premises (except that certain types of members’ clubs which have a premises licence can obtain occasional licences on a quota basis).

Section 63 of the Act prohibits the sale, consumption and taking away of alcohol from licensed premises outwith licensed hours (with a variety of exceptions).

It’s absolutely clear that the village hall is “licensed premises” for the purpose of the section: “licensed premises” is defined in the Act as “premises in respect of which a premises licence or an occasional licence has effect”.

The next question is whether the hall ceases to be “licensed premises” after the end of the 15-minute drinking-up period. Further examination of section 63 suggests otherwise. It provides that: “a person commits an offence if, having been requested by a responsible person not to do so, the person consumes alcohol on … licensed premises outwith licensed hours.” For the purposes of that provision, “responsible person” includes the holder of an occasional licence.

I think it must follow that if a customer commits an offence of consuming alcohol outwith the licensed hours set out in an occasional licence, it has to be the case that an offence would be committed if an occasional licence holder allowed such consumption.

A: I’ve heard it suggested that the second refresher training course has to be completed within five years of the first one. In my view, that’s not correct: the training deadline runs in five-year cycles. So, in your case, a further course must be completed by August 31 2019, and not within five years from March 14. You said you passed the exam. Presumably you’ve notified the licensing board. If not, it would be wise to do that now. The deadline for your notification is November 30.

A: I suspect not. Following the review, a board might endorse, suspend or revoke a personal licence. You say the board took none of these steps. I have an idea as to what happened. A personal licence document has a number of attachments. Annex A contains a training record. Annex B is a record of any convictions incurred by the licence holder for a ‘relevant’ or ‘foreign offence’. Annex C sets out details of any endorsement, including the reason for its imposition. I reckon that the board has simply recorded your conviction as they’re obliged to do. That does not amount to an endorsement. I expect you’ll find an entry in Annex B, while Annex C will be blank.

A: There’s clearly some confusion here. Where there’s a failure to comply with the refresher training rules, the licensing board is required to revoke the licence. In such a case, an application for a personal licence cannot be made for five years. Where a personal licence is surrendered, there’s no ban on applying for a new one. However, if an application is made in the next three years the licensing board is obliged to look into the reasons for the surrender. This provision is to tackle the possibility that someone might hold a personal licence which is subject to two endorsements. A third endorsement might result in the licence being suspended for up to six months or even revoked. In such a situation, an unscrupulous licence holder might see the benefit in giving up the licence and applying for a ‘clean’ one. The three-year provision is designed to deal with this sort of scenario. It doesn’t prevent an application.

A: Yes, subject to certain conditions. The alcohol must be supplied for consumption on the premises with a meal. The sale must be authorised by a ‘responsible person’ or by any other person aged 18 or over whom a ‘responsible person’ has authorised to give this sort of approval. The definition of responsible person is rather convoluted. He or she will be (a) the premises manager; (b) in the case of an occasional licence, the licence holder; or (c) a person over 18 who works in a capacity which authorises the person to sell alcohol or prevent an offence being committed.

A: You can simply surrender the licence so that you can apply for a new one if your circumstances change.

First of all, you should report the loss of the licence in writing to your local police station. Keep a copy of the letter. Then write to the clerk of the licensing board that issued the licence, stating that you wish to surrender it.

You should provide a copy of the letter to the police.

If you apply for a new personal licence in the next three years the board must investigate the circumstances of the surrender. This provision is designed to deal with a surrender where the licence holder wishes to obtain a new licence against the possibility the current licence might be suspended or revoked.

Since your licence was issued before September 1, 2009, the deadline for completing refresher training is August 31, 2014. So, my advice is to deal with this sooner rather than later.

A: The short answer is yes. You don’t say why you would want to take that step, but just remember that you must not deny access to the machines on any discriminatory grounds, such as gender, race and disability.

A: Oddly, it might seem, there’s nothing in the legislation to prevent refresher training being carried out as soon as a personal licence is issued. You might think that this defeats the whole point of the exercise. But what you propose is possible, even though you’d be attending to this around four years before the deadline. I suspect that you won’t have any difficulty obtaining a course booking.
Worryingly, despite the huge numbers of personal licence holders needing to complete retraining no later than August 31, I’m hearing from a number of training organisations that demand for places is extremely low.

*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.