Legal Q&A: 2015 | Scottish Licensed Trade News

Scottish Licensed Trade News

Legal Q&A: 2015

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: I work in a restaurant as an assistant manager and our restaurant just lost the licence because the owners didn’t renew it. They’ve told us to keep selling but just to regular customers. If I follow this instruction will I be in trouble?

A: Premises licences do not expire – although they “cease to have effect” in a variety of circumstances. Assuming that the licence for the restaurant has somehow been ‘lost’ you can be sure that selling alcohol to anyone will land you in trouble. A person who sells alcohol – or allows it to be sold – on unlicensed premises commits an offence punishable by a fine not exceeding £20,000, imprisonment for up to six months, or both.

Q: Am I allowed to sell spirits only in double measures?

A: Gin, rum, vodka and whisky can be sold in 25ml or 35ml measures or multiples thereof (with the same quantity offered through the premises). There’s nothing to prevent you serving 50ml quantities but it doesn’t sit well with the current drive to encourage the offer of small measures.

Q: I work in a pub. It has a premises licence but only one person has a personal licence, and that person is never on the premises. By law should there always be somebody on the premises with a personal licence? And if someone comes and does a check up, who is fined? The person working behind the bar or the premises owner?

A: The single personal licence holder to whom you refer can only be the premises manager. While he or she need not be present on the premises at all times when alcohol is sold it’s plainly impossible for premises to be ‘managed’ by someone who never bothers to put in an appearance. What’s more, as a “mandatory condition” of all premises licences, “every sale of alcohol made on the premises must be authorised (generally or specifically) by (a) the premises manager; or (b) another person who holds a personal licence”. Opinions differ as to whether there should always be someone present on the premises who holds a personal licence. But in the case of your pub, the only person capable of giving an authorisation appears to have abandoned all responsibility for the conduct of the premises. That’s a recipe for disaster, not just for the business but also the premises manager because he or she will almost certainly be held to account for any offences committed. However, there’s no question of you being “fined” just because you’re working without the support of a personal licence holder. The business owner needs a really loud wake-up call.

Q: I’m a member of a club and would like to know the drinking-up times. The police still say it’s 15 minutes but I’ve looked at some points and there’s a grey area because the consumption of alcohol after that time is only an offence if the person has been requested not to.
A: I don’t think there’s a grey area, but the law did undergo a significant change when the 2005 Act came into force. Previously, it was not an offence for a licence holder to allow the consumption or removal of alcohol outwith permitted hours but an offence was committed by the person consuming or removing the alcohol. Now, a person commits an offence if he “allows alcohol to be consumed on licensed premises, or allows alcohol to be taken from licensed premises” outwith licensed hours (subject, of course, to drinking-up time and various other exceptions). So far as the customer is concerned, as you say, the offence of consuming alcohol on, or taking alcohol from, licensed premises outwith licensed hours is only committed if that person has been requested not to do so by a “responsible person”.

Q: We have a busy function coming up. Can I get 17 year old waitresses from the franchised restaurant in our golf club to wash glasses? Is there a certain time they would have to be off the premises?

A: You’ll need to look at the operating plan contained in your licence and check the approved arrangements. Assuming young persons are permitted on the premises, the operating plan will specify the parts to which they have access and the terminal hour. Be careful, because I’m aware of a recent case in which a restaurant employed 17 year olds as waiting staff, permitted to serve alcohol under supervision, but unable to serve food. Why? The operating plan provided that young persons (and children) had access to “all public parts of the premises”. But that meant they had no access to the kitchen – not a “public part”.

Q: We are a small charitable trust running six events a year where about 40 people purchase one glass of wine during the programme interval. We pay for an occasional licence for each of these events – do we need to have a personal licence holder in respect of such limited activities?

A: An application for an occasional licence may be made by: the holder of a premises licence; the holder of a personal licence; or a representative of a “voluntary organisation”. Assuming that your applications are made by the trust as a “voluntary organisation”, the requirement to have alcohol sales authorised by the holder of a personal licence doesn’t apply – as it would if the licence was granted to a premises or personal licence holder.

Q: On reading your column in the September 17 edition of SLTN, it got me thinking of our bowling club. Every year for the past five we have had a Hogmanay party with invited guests only. The club is a licensed premises but the bar is not used (it’s BYOB). It’s a private bowling club and only members are invited. My question is are we breaking any laws? If so, how can we still have the event and comply with the licensing board?

A: I’m afraid the club is in the same position as the pub owner whose question I answered last month. Clubs meeting certain criteria are exempt from a number of provisions in the Licensing Act – but they’re still bound by the rules governing licensed hours, and the consumption of alcohol outwith those hours is (with a few exceptions, such as “drinking-up time”) an offence even if it’s not sold. What can you do? Check with the licensing board to find out whether you have “automatic” extra hours on December 31. If not, you’ll need to make an application to extend the licensed hours. Ask the board’s staff for a form and make sure you don’t miss the last submission date for Hogmanay events.

Q: I want to close my pub at 8pm on Hogmanay and have only my family and close friends in for a get-together. Kids will be present and I just want everyone to bring their own bottle so I don’t need to have staff on duty. Can you tell me the legal position on this?

A: Under the Licensing (Scotland) Act 1976, the ‘permitted hours’ didn’t apply where the licence holder entertained private friends at his or her own expense. The 2005 Act changed the position. Allowing for ‘drinking-up time’, the consumption of alcohol after the end of licensed hours is an offence, even at a party where no drink is sold. So, you may need to apply to the licensing board for an extension of hours, unless there’s a local arrangement giving you automatic extra hours for Hogmanay. You’ll also need to make sure that your operating plan covers the presence of children and young persons on the premises for the duration of the party. There’s an argument – too complicated to explore in this space – that restrictions on the admission of under 18s only apply when alcohol is sold for on-consumption, but I wouldn’t bank on it.

Q: Recently we had a test purchase at the shop, which our member of staff failed. Everything else, from the point of sale posters to paperwork, was in order. We have passed every test purchase up until now. What happens now?

A: A follow-up test purchase will take place. If the sale’s refused, I expect you’ll be in the clear. In a landmark appeal decision a few years ago, senior judges ruled that the suspension of a licence wasn’t an appropriate step for a single test-purchase failure where the retailer had taken diligent measures to prevent underage sales and a mistake was made by a properly-trained member of staff. In the light of that decision, if you pass the second test, it’s unlikely the police will apply for a review of your licence.

Q: I was thinking of providing free cardboard wine carriers in the alcohol aisle of my convenience store. I thought they might encourage bulk purchases. I’m up-to-speed with pricing rules, but I’m not sure about display restrictions, so do you see a problem here? Does the mandatory carrier bag charge apply?

A: In a publicly accessible alcohol area, a product other than alcohol can only be displayed if it’s (a) a non-alcoholic drink; (b) packaged with alcohol (and only for sale with) the alcohol; (c) a “branded non-alcoholic product”; or (d) a newspaper, magazine or other publication. Wine carriers could fall into category (c), but only if they carried the name or image of an alcoholic product. If they didn’t conform to that requirement, you’d be exposed to prosecution and (in theory) liable to a fine of £20,000 and/or six months’ imprisonment. That would lead to a review of your premises licence with the possibility of a sanction being imposed by the licensing board. Just to complicate matters further, you could display alcohol-branded items in the body of the shop outwith the alcohol area, but only if they were priced. My understanding is that you’re not obliged to impose the minimum five pence charge under the carrier bag regulations.

Q: Can a Scottish landlord bar a former member of staff from his pub on the grounds that they allegedly spread unsubstantiated rumours about the conduct of the landlord?

A: Yes, because you have a right to refuse entry as you please, provided that you don’t do so on a ground prohibited under the Equality Act 2010: race, gender, sexual orientation, disability, religion or belief, transexuality (‘gender reassignment’), pregnancy or maternity. The right to refuse entry or service – and the limitations imposed by that Act – were comprehensively covered in an SLTN article a while back.

Q: I operate a nightclub business in a mixed commercial/residential location and I’ve run into trouble with the police and local residents over dispersal problems caused by noisy customers at closing time. The police have already carried out an ‘intervention’ and if I don’t get a grip of this I reckon I’ll be called up before the licensing board and could see the hours cut. At the moment the club’s licence finishes at 2am. I’m planning to stay open until 2.45am or possibly 3am, with customers able to finish their drinks, listen to music – and maybe buy soft drinks and something light to eat – during the extra period. That would spread out the time over which people hit the street and could just make a positive difference. Do you see any licensing problems with that approach?

A: At the moment, “drinking-up time” is available in your premises until 2.15am provided that the alcohol was purchased before 2am. From that point, even if you’re not selling alcohol, it’s an offence to allow it to be consumed. So, in order to implement your idea – which might well have some merit – you’d have to make an application to the licensing board for a “non-minor” variation of your premises licence to extend your licensed hours.

If that course isn’t attractive and you were thinking of modifying your idea so that all bottles and glasses containing alcohol were cleared away by 2.15am – and getting that clearance totally complete might be tricky – be aware that the provision of soft drinks, food and entertainment could mean that you have to obtain a public entertainment licence from the local council. Just to complicate matters further still, if you were only offering food and non-alcoholic drinks a late-hours catering licence could well be required. You’ll have gathered that this is very tricky territory and it would be a good idea to consult your licensing lawyer, who might also suggest other steps you could take to deal with your current difficulties.

Q: I own and manage a hotel. During a recent police visit I was told that there’s a gap in the licence operating plan because I haven’t stipulated that I provide breakfast for my residents, although the bar doesn’t open until 11.30am. It seems that I’ll need to go through the expensive process of applying for a major variation of the licence to correct the omission. Before I go ahead, is this really necessary?

A: The operating plan contained with your licence sets out a list of permitted activities that might take place on your premises apart from the sale of alcohol. It also indicates whether an activity will only take place when alcohol sales are allowed or at other times. The supply of breakfasts before the start of licensed hours does in fact require specific authorisation from the licensing board, whether you operate a hotel, pub, restaurant or any other type of licensed premises. If it doesn’t form part of an operating plan, authorisation can only be added by means of a ‘non-minor’ variation application which requires to be advertised and considered by the board. In the case of a hotel, this produces an odd result. In terms of section 63(2) of the Licensing (Scotland) Act 2005 persons residing on licensed premises may purchase and consume alcohol outwith licensed hours. In fact, the consumption (but not the purchase) of alcohol by the guest of a resident is permitted. These dispensations operate automatically and do not need authorisation in the licence. So, as matters stand, you could supply a resident with a pint of beer at 7am, but not a plate of bacon and eggs. My advice is to frame the proposed variation as widely as possible, by indicating that food (including breakfasts)
and refreshments may be served to residents and non-residents prior to the commencement of licensed hours. Be aware, however, that the degree of detail expected varies from area to area so you might need to specify the time at which service begins.

Q: Can I confiscate an ID document if I believe it to be a fake?

A: Under the Identity Documents Act 2010 it’s an offence to possess a false ‘identity document’ – or a document that relates to another person – with an ‘improper intention’, as would plainly be the case where it was used in an attempt by an underage person to obtain alcohol (or any other age-restricted product). Plainly, there’s a challenge in getting the police on the spot while the would-be purchaser is still on the premises, although an Inverness initiative seems to be meeting with some success. However, a number of experienced operators I’ve spoken to point to a potential pitfall. In one case, a shop assistant confiscated a passport suspecting the photograph had been switched and handed it in to police. It turned out to be genuine and had been taken without consent from an older sibling.

A: Under the Identity Documents Act 2010 it’s an offence to possess a false ‘identity document’ – or a document that relates to another person – with an ‘improper intention’, as would plainly be the case where it was used in an attempt by an underage person to obtain alcohol (or any other age-restricted product). Plainly, there’s a challenge in getting the police on the spot while the would-be purchaser is still on the premises, although an Inverness initiative seems to be meeting with some success. However, a number of experienced operators I’ve spoken to point to a potential pitfall. In one case, a shop assistant confiscated a passport suspecting the photograph had been switched and handed it in to police. It turned out to be genuine and had been taken without consent from an older sibling.

Q: I am planning to sell samples of spirits as well as wine in my new restaurant. What does the law say about the measures used for these? Can I only sell, say, three gins if I use 25ml measures? Is it legal to sell these in smaller measures, say 15ml? The same question applies to the wine. My last place of work offered ‘flights’ of wine in 50ml measures. Was this legal?

A: Gin (together with rum, vodka and whisky) can only be sold in 25ml or 35ml measures (or multiples thereof). Of course, provided you comply with this requirement you can offer as many types of gin for sale as you wish. So far as still wine is concerned, when sold by the glass it may only be offered in 125ml or 175 ml measures (or multiples thereof) but wine sold in a quantity below 75ml is exempt. The law in relation to wine was changed around four years ago following a campaign to allow the sale of affordable sample tastings of vintages that would otherwise be prohibitively expensive if sold as 125ml measures.

Q: Can someone under 18 purchase alcohol-free lager (eg. Beck’s Blue)?

A: For the purposes of the Licensing (Scotland) Act 2005, the expression “alcohol” means “spirits, wine, beer, cider or any other fermented, distilled or spirituous liquor” but doesn’t include “alcohol which is of a strength of 0.5% or less at the time of sale”. Beck’s Blue contains “not more than 0.05% alcohol” (thus qualifying for the “alcohol-free” description), so it can be sold to persons under 18. However, in practice, for their own reasons, retailers are apt to treat this and similar products as “age restricted”; but, confusingly, you might see cans of shandy (with an ABV not exceeding 0.5% v) in soft drink aisles.

Q: My local golf club is a private members’ club. A management committee member said anyone from another golf club can enter premises and purchase alcohol without being signed in, as all golf clubs are affiliated. I think this is wrong and affiliation requires to be carried out on an individual basis. Could you please clarify this?

A: In essence, for licensing purposes there are two types of members’ clubs. Firstly, there are “qualifying clubs” which operate under a written constitution and rules with a content prescribed by regulations made under the 2005 Licensing Act. These clubs enjoy a number of dispensations; for example, there is no requirement to nominate a premises manager and alcohol sales needn’t be authorised by a personal licence holder. Other clubs may choose to operate in the normal fashion without the restrictions imposed by the regulations, but without the advantages that would otherwise be available. Assuming that your club is a “qualifying club”, the normal signing-in rules apply to non-members except where the person seeking to buy alcohol is a member of another “qualifying club”. So, while ‘affiliation’ isn’t an issue as such, the other golf club would have to be a “qualifying club”.

Q: I run a small hotel and have come to understand that Trip Advisor reviews can have a significant impact on bookings. A spiteful guest has posted a really bad review on the Trip Advisor website – a pack of lies – but it could have a really damaging effect on my business. Do I have any redress?

A: The answer rests on the outcome of a pending legal challenge. Owners of a hotel in the Highlands were incensed by malicious reviews on Trip Advisor and called on the company to reveal the authors’ identities so that defamation proceedings could be taken. Trip Advisor refused to do so and claimed to be outwith the jurisdiction of the Scottish courts. The owners took the case to the Court of Session when a judge accepted the review site’s argument that any legal proceedings required to be brought in Massachusetts, where its headquarters are situated. An appeal against that decision to three senior judges was rejected. I reckon that, by this stage, the hoteliers must have run up a massive legal bill and reached the end of the road. However, it seems that an anonymous donor has stepped in to fund their battle and the case will be heard in due course by the Supreme Court in London. I reckon that a fair number of hospitality industry operators will be very interested in the outcome.

Q: I know there’s a 30-minute drinking-up time for food, but can this apply to people who had a meal at a wedding at the venue earlier in the evening or is it just for people sitting finishing their meal in a restaurant?

A: The drinking-up time dispensation only applies to the consumption of alcohol “at a meal” and provided that the alcohol was sold during licensed hours, at the same time as the meal and for consumption “at the meal”. As you’ll gather, the key expression here is “at a meal” so the extra time isn’t available where the meal was supplied earlier.

Q: I currently own a property that has a liquor licence. I updated to a premises licence when I operated the business. Then I put tenants into the property and they took over the licence. I have recently had a change of tenant. Who is responsible for the transfer of the licence? Is it wise to put the new tenant’s name on the licence or should they be the premises manager?
A: Under the scheme of the Licensing (Scotland) Act 1976 it wasn’t possible for a landlord to hold a licence and there was nothing to prevent a malicious tenant surrendering the licence back to the board. However, that difficulty has been overcome by the present legislation. You can – and should – hold the licence with the tenant acting as the premises manager. Since the licence is presently held by a tenant there’s scope for complications and it would be wise to put the transfer in the hands of a lawyer.

That is not where your responsibilities end. Should there be any problems with the conduct of the premises, the board will not be impressed to discover that you simply collected the rent. So, as I’ve said before on this page, a wise landlord will carry out regular compliance visits. You might find this basic checklist useful: (1) a certified copy of the premises licence must be available for inspection, together with staff training records (you should keep hold of the original licence); (2) the licence summary should be “prominently displayed” and capable of being read by anyone frequenting the premises; (3) if alcohol is consumed on the premises, there must be a notice at the entrance stating either that persons under 18 are not permitted on the premises, or are permitted either to the whole premises or specified parts (in terms of the operating plan); (4) ‘section 110’ notices relating to underage sales must be in position with the proper wording; (5) an ‘age verification policy’ ought to be in place and adequate Challenge 25 signage on display. 

Q: I was always under the impression that it was against the law in Scotland to charge a fee to enter the premises of a public house unless it was to a private function away from the main bar. Has this law been changed or is this still the case as there seem to be more and more public houses charging at the door? Also, are there any byelaws that could prevent this from happening?
A: That question shakes the dust from distant memories of a byelaw operated many years ago by the licensing court in Glasgow that prevented pubs from levying an admission charge. The magistrates took the view that a ‘public house’ was exactly that: premises to which members of the public ought to have unrestricted access. The current licensing regime makes no provision for byelaws and there’s nothing to prevent licensed premises of any description charging for entry. I suppose it’s just possible that there could be a premises licence condition stipulating that entrance should be free of charge, although it’s very difficult to imagine when that would be appropriate.
Q: Is there now a requirement to offer wine in 125ml measures?
A: There’s a campaign driven by the Scottish Government Alcohol Industry Partnership encouraging the trade to offer these measures as a means of promoting public health and giving customers better choice – but it’s not compulsory. The position is different in England and Wales. Specified drinks which are not pre-packed must be available to customers in prescribed measures: (1) beer or cider, half pint; (2) gin, rum, vodka or whisky, 25ml or 35ml; and (3) still wine in a glass, 125ml. Importantly, where a customer does not ask for a specific quantity, he or she is to be made aware that the different measures can be purchased. Perhaps the Scottish Government should give some thought to following this lead.

*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.