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Legal Q&A: 2017

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: This is undoubtedly a very troublesome area. I’m aware of a case in which an argument of the sort you describe came to a head with the licence holder being threatened with prosecution for breach of a byelaw unless the consumption of alcohol was confined to the licensed premises. Both the licensing board and the owner of the business obtained conflicting opinions from very experienced licensing counsel. The result was a stalemate; and, from memory, the licence holder felt obliged to back down.

While the legal position is simply unclear, I’m inclined to the view that hotel grounds in private ownership, from which members of the public may be excluded by the owner (allowing, of course, for legislation prohibiting various forms of discrimination) are not “a place” to which the public has access in the sense intended by byelaws of this type. The whole point of the byelaws was to prevent antisocial behaviour caused by alcohol consumption in streets, public parks and so on. That said, if, as appears, the board is sticking to its guns, and you don’t fancy being a test case, I’d bite the bullet and vary the licence to include the outdoor area.

A: Where alcohol is purchased within licensed hours, the law allows the drink to be consumed “at any time within 15 minutes of the end of any period of licensed hours”. So, the barman could have allowed you to consume the drinks until 12.15am. The fact that he appears not to have done so is, of course, an example of appalling management. The best advice I can give is to give this place a miss in future.

A: Although you’re intending to hold a private function to which the public will not be admitted, I’m afraid you’re stuck with the terms of the premises licence operating plan governing access by children (up to age 15) and young persons (aged 16 and 17). In all likelihood, the licensing board would be prepared to allow a variation of the licence so that under 18s could be present on the premises until the conclusion of a function. Since that amounts to a ‘major’ variation, I doubt whether you would be able to get it considered in time for your pre-launch party. Nevertheless, it would be a good idea to take this step so that you won’t be caught out in the future.

A: An individual may only hold one personal licence. If a further licence is issued it is treated as “void” and requires to be surrendered. Passing off a void personal licence as valid constitutes an offence. In relation to your second question, you correctly state the position.

A: The location of licence holders’ alcohol promotions is tightly controlled. A promotion “in connection with the premises may not take place in the vicinity of the premises”. The “vicinity” means the area extending 200 metres from the boundary of the premises (no doubt wide enough to cover most supermarket car parks), so there seems little doubt that the banner breaks the law.

A: On the face of it, the law is on your side when it comes to removing disruptive customers – but putting it into practice is a different matter. Section 116 of the Licensing (Scotland) Act 2005 provides that it’s an offence to behave “in a disorderly manner” on licensed premises and refuse or fail to leave on being asked to do so by a “responsible person” or a police officer. It goes on to say that,  in the event of non-compliance, an “authorised person” may remove the person and “if necessary, for that purpose, use reasonable force”. The police must assist if asked to do so.

I have real reservations about the use of force. When a Holyrood committee was looking at a similar power, one MSP called it “the Rambo provision”. There was a concern that the power could be used disproportionately. The Scottish Government rep’s response was that ‘a publican’ needed to be able to use reasonable force in order to keep an “orderly house”. Somehow that conjures up in my mind scenes of chaos in a wild west saloon. In any event, I’m of the view that police assistance should be sought. While “reasonable force” is authorised, as any lawyer will tell you, the interpretation of “reasonable” is apt to lead to be problematic. There may well be some protection from a CCTV system recording the removal of the troublesome customer. But, while you don’t want to fall out with your bosses, when faced with the prospect of using force you have to weigh that up against the possibility of an assault charge.

A: Amendments to the Licensing (Scotland) Act 2005 will give boards nine months to determine certain types of applications; and if the board misses the deadline without good reason, the application will be deemed to have been granted. The provision of a time limit is apparently intended to implement European regulations requiring applications for “authorisations” to be processed “within a reasonable period”. On no view is a period of nine months anywhere near “reasonable”. But in your case that’s academic because the changes have yet to be brought into effect. If you haven’t got a result within three months you should politely ’chase’ it up.

A: That could well be correct. The operating plan will set out the ages of children and young persons who can be admitted to the premises; the terms on which they may be admitted; the parts of the premises to which they have access; and the access times. In my experience, boards will generally allow supervised under-18s to attend pre-booked, private functions for the duration of the function, but you need to check with the person hiring out the function suite. I remember one board appeared determined to impose a 10pm watershed and I was obliged to point out that it could result in a bride or groom having to leave their own wedding reception.

A: It sounds like a great commercial proposition – except for a fundamental obstacle. The sale of alcohol before 10pm would, of course, be perfectly legal but it’s an offence to allow alcohol to be taken from licensed premises outwith licensed hours. There’s one exception: alcohol can be carried out within 15 minutes of the end of licensed hours provided it’s not in an open container.

A: I’m assuming that the private room forms part of the licensed premises, in which case it appears that the law is being broken. The ‘old’ licensing Act allowed the consumption of alcohol by the licence holder’s “private friends” outwith “permitted hours”, provided that no money changed hands. There’s no similar dispensation in the Licensing (Scotland) Act 2005 and the supply of food is totally irrelevant. If you point this out to the owners I would expect that to be the end of the matter.

A: Yes – but with a word of warning. The 2005 Act provides that, “Any responsible person in relation to any relevant premises who is drunk while on the premises commits an offence”.  The expression “responsible person” includes the premises manager, and it doesn’t make any difference that he or she isn’t in charge of the premises at the time.

A: No matter the terminal hour, 15 minutes drinking-up time is added for the consumption of alcohol provided it was purchased during licensed hours.

A: The reintroduction of ‘fit and proper’ took effect from May 15 but it has no effect in relation to a review application received by a licensing board before that date. Otherwise, if a board makes a finding that a licence holder is not ‘fit and proper’ it must revoke the licence. So, you’re not affected by the change – but that doesn’t mean that you’ll keep your licence. Revocation is still an option available to the board if it considers that action requires to be taken and that a warning or suspension wouldn’t mark the gravity of the situation.

A: Challenge 25 requires steps to be taken to establish the age of a person attempting to buy alcohol if it appears that the customer may be under 25 (a higher age can, of course, be specified in the age-verification policy). Here, of course, your daughter wasn’t the person attempting the purchase, so, on one view, the checkout operator was being over-cautious – but presumably concerned that a so-called ‘agency purchase’ was taking place for a person who might be under 18. It’s not hard to see why this was annoying – but I’m always reluctant to fault staff who take a risk-averse decision, even if it does seem extreme.

A: I am aware at least one council is playing catch-up with fees it failed to collect over the past several years. In my view, looking at the relevant regulations, the responsibility for payment falls on the licence holder at the time the fee fell due. However, it may just be a matter of time before you’re threatened with a review of your premises licence if you fail to pay. That would produce an odd result. Any sanction imposed following a review is required to address one or more licensing objectives. Boards will argue that all the objectives are engaged where fees haven’t been paid: councils need cash to administer the system. But perhaps there’s an element of the pot calling the kettle black if an authority hasn’t taken effective steps to fund its licensing function over several years.

Gin, rum, vodka and whisky must be sold in “specified quantities” – 25ml or 35ml – and may be sold in multiples of these quantities.

A: I did answer a similar question earlier this year when I suggested that those attending functions might be stopped from bringing their own alcohol onto the premises by means of a suitable condition in the booking contract with the organiser. It would, of course, be open to you to adopt a similar approach in your terms and conditions, but I can easily see that, short of a ‘stop and search’ policy, enforcing the condition in a hotel environment presents something of a challenge. You are, of course, correct in supposing there’s no law that prevents hotel guests from smuggling alcohol into their bedrooms; and of course some establishments actively encourage in-room drinking from mini-bars – although at prices that are unlikely to lead to excessive consumption. I recall that one luxury hotel used to charge £20 for a bucket of ice ordered without alcohol – no doubt in an attempt to stem the problem you seem to have encountered.

A: When the clocks move forward – or back – the change is simply ignored for the purposes of licensed hours. The Licensing Act provides that a period of licensed hours “ends at the time it would have ended had British Summer Time not begun or ended”. So, when the time goes forward by an hour at 1am on Sunday March 26, your premises can continue to sell alcohol for two more hours. There’s no need to apply for an extension. Conversely, when the clocks move backwards at the end of October, you do not gain an extra hour.

A: There’s a one-year embargo on a further application for the same premises, unless (a) the licensing board decided to waive that ban when they refused the application; or (b) the board is satisfied there has been “a material change of circumstances”.

A: There’s nothing illegal, but the party would require to take place during licensed hours. You could apply to the licensing board for a ‘one off’ extension if you planned to carry on after your normal closing time. That extension might be an essential step because, subject to a number of exceptions, the consumption of alcohol outwith those hours is an offence – even if no money changes hands. The Licensing (Scotland) Act 1976 provided an exemption where alcohol was supplied to “private friends” of the licence holder who were “bona fide entertained by him at his own expense”. But the dispensation wasn’t carried over to the Licensing (Scotland) Act 2005; and in the early days of the new legislation a number of operators found themselves in front of the licensing board for carrying on the long-established practice of ‘staff drinks’.
You should also check whether your operating plan covers the presence of any under 18s who will be attending the party. There’s an argument that restrictions on the admission of under 18s only apply when alcohol is sold for on-consumption, but this raises questions too complicated to explore here – so you should speak to your lawyer if the operating plan doesn’t cover you.

A: I’m not sure what you mean by a “certified caterer”, but there’s nothing to prevent a licence holder outsourcing the supply of food for customers. A number of my firm’s clients buy in buffet food when they’re catering for a function. However, while an application for a provisional premises licence need only be accompanied by a provisional planning certificate, a “confirmation” application to bring a provisional licence into effect must be supported by a Section 50 food hygiene certificate if food is to be supplied on the premises: it’s of no consequence that the food isn’t actually prepared on site. You should also be aware that any business selling food on premises must be registered with the local authority.

A: I suggest that you make appropriate provision in the terms and conditions set out in your booking contract with those looking to hold a function at the venue, making it clear that anyone attending an event who brings alcohol onto the premises will be required to deposit it with management until they leave.

A: I understand that the club has a premises licence, so the short answer is: carefully check the operating plan. That will set out the part or parts of the premises to which children (and young persons) are allowed, the times when they’re allowed access and the access terms (e.g. “for the purpose of attending a function for the duration of the function while accompanied by a responsible adult”). Certain types of clubs holding a premises licence may apply for an occasional licence – essentially for the purpose of allowing alcohol to be supplied to non-members without the usual record-keeping formalities – but even if your club falls into the relevant category I can’t see any need for an occasional licence to cover the sort of function you describe. So, it’s all down to what’s allowed by the operating plan contained in your premises licence.

*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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