Legal Q&A: 2017 | Scottish Licensed Trade News

Scottish Licensed Trade News

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.

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Q: The hotel I work for has recently started to cater for weddings. There’s a fairly large unlicensed area in the grounds which can be directly accessed from the function suite. In fact, that’s the only means of access. We’ve been allowing the guests to take their drinks outside on the basis that the premises licence has an off-sales facility. In other words, the alcohol is purchased at the bar for off consumption. There’s a local byelaw in place prohibiting the consumption of alcohol in public places anywhere within the council’s area. Management has taken the view that our garden area isn’t “public” because it’s privately owned and we have total control over admittance, but the local licensing board sees it differently. Are they right to say that we’re breaking the law?

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.

Q: I was having drinks with my friends in my local pub. The closing time is 12am and they called last orders at 11.45pm. We ordered a pint and a vodka each. The barman then started hassling us to hurry up and drink our drinks or he was taking them away. Do we have the right to stay and consume our drink until 12.15am, ie. 15 minutes after closing time, or do we have 15 minutes from when last orders were called?

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.

Q: My son and I have revamped a pub/restaurant and before opening to the public plan to have a night for family and friends to celebrate with us. After giving them food and drinks the bar will then be opened. We have a licence for children till 8pm but would that also apply to my grandchildren for this closed door event?

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.

Q: I am looking for some assistance regarding personal licences. Firstly, is it illegal to hold more than one personal licence? Secondly, am I correct in saying that a personal licence issued in England is not valid in Scotland?

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.

Q: My pub is due to be sold on at the end of November and the land used for a residential development, but I want to keep trading up until the last minute. The annual premises licence fee is due to be paid on October 1, and as the licence will not be transferred my local council says that I would not get a refund for the unused ten months of my fee. Is this right? Surely I cannot be charged for a whole year?

A: I’m sorry to tell you that the council is correct. There is no provision in the legislation for a refund. In fact, the fee continues to be payable even where a licence has been suspended.

Q: A petrol station down the road from my pub has recently gained a licence for its shop and the owners have erected a banner on the side of the building advertising the range of wines and beers they now offer, along with pictures of some of the products and their prices. Is that legal?

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.

Q: I’m a bartender who has just started a new job at a local pub where the owners refuse to hire door staff, despite the pub attracting some questionable clientele. The bar staff seem to be expected to take care of any problems that occur. What should I do if I ask a problematic customer to leave the premises and they refuse? Am I allowed to physically remove them? The owners have said they don’t want to involve the police.

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.

Q: I’ve just submitted an application for a personal licence and the licensing board’s office has told me that, because of “statutory policy” it could be up to nine months before it’s granted. It seems a long time for a straightforward application – I have no convictions so no hearing’s needed – and I’d like to know if it’s correct?

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.

Q: I plan to hire a function suite where alcohol will be served from the bar. There will be children at the function. Someone said that although it’s a private function kids will need to leave the premises by 10pm. Is this true?

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.

Q: I am looking to take over a shop with an alcohol licence and turn it into a takeaway. It’s located next to a busy night venue. Could I sell alcohol to customers before 10pm and allow them to pick up the products later?

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.

Q: My home backs onto very popular licensed premises. On occasions they hold private parties in their private room. The only access to this area is at the back of the building which is visible from my home. Noise travels in this area. They have had late parties till 5am. I called once to complain and was told it was an unauthorised member of staff allowing the drinks to be served and they offered me a free meal. It happened again and I observed one of the owners in attendance. Can an owner hold a private party and serve drinks after the end of licensed hours? It is also a restaurant so they might have supplied food, but I know the chefs usually leave the premises around midnight.

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.

Q: Can a designated premises manager in Scotland drink alcohol in the pub they work in when they are off duty?

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.

Q: The terminal hour in my club is 1am on Fridays and Saturdays. Does that mean we can sell alcohol until 1am with drinking-up time finishing at 1.15am or should people have ‘drunk up’ by 1am?

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.

Q: There have been several incidents in my pub over the past few months and at the end of April the police applied to the licensing board for a review of my premises licence. The application says there has been “a failure to exercise proper managerial control” leading to a breach of the licensing objectives. With the ‘fit and proper person’ test reinstated, does this have consequences for my situation?

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.

Q: When I was doing some supermarket shopping recently the checkout operator refused the sale of some wine because she said that my 19 year old daughter didn’t appear to be 25 or over and couldn’t produce any proof-of-age documentation. Was that refusal legal?

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.

Q: I have been invoiced by the local council for four years of premises licence annual fees unpaid by the previous owner of my pub. The council insists that the fees have now become my responsibility. What is my legal position?

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.

Q: Is it legal in Scotland to sell a double 35ml measure?

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

Q: Apologies if I have ever missed this query in your SLTN column. Can you clarify the position of guests taking alcohol into hotel bedrooms for personal consumption where the premises is fully licensed to sell alcohol but unaware of such an occurrence taking place. Unless I am mistaken it appears the law allows the loss of sales to the establishment, allows consumption of an unknown substance at an uncontrolled level – yet holds the licence holder, who is more than likely to be unaware of the event as bottles taken to the rooms are never declared, responsible and potentially liable. I understand we can put notices in bedrooms advising guests to drink sensibly, etc. However this would appear to be fairly futile and leaves the licence holder exposed to risk.

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.

Q: I used to manage a club in England and when the clocks moved forward in the spring we lost an hour’s trading unless we applied for a temporary event notice (equivalent to an extension of the licensed hours). I’ve just started work as the premises manager at a late night venue north of the border. We’re licensed at the weekends until 3am. What’s the position under Scottish licensing law?

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.

Q: I was refused a premises licence around six months ago. Is there anything to stop me trying again?

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”.

Q: I own a pub in which I would like to host my daughter’s 18th birthday party. The pub will be closed on the night in question and will not sell anything at all. We intend to provide a buffet meal along with beer and wine, none of which will be subject to any form of charge. Is this allowed or is there a law or regulation I would be breaking?

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.

Q: I know that a premises licence application needs a food hygiene certificate if you plan to supply food on the premises but what’s the position where a pub doesn’t have proper kitchen facilities? Can the business buy in food from a certified outside caterer?

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.

Q: I work for a community arts theatre in Scotland. We have a bar and restaurant which hosts functions on a regular basis. My question is, what can I do if I discover that someone attending a function has brought their own supply of alcoholic drinks onto our on-licensed premises? This has happened on a number of occasions, and it’s starting to become a problem with obvious revenue loss implications.

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.

Q: I’m a member of a community sports club. If we hold birthday parties for members’ children do we need to apply for an occasional licence every time? The parties would take place in our hall, not the bar area, and the only persons attending would be the kids and their parents.

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.