Q&A with Jack Cummins
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?*
Q: My bowling club is just about to reopen with a new bar layout to accommodate physical distancing. Food and drink will be supplied by table service only. We propose to minimise staff interaction with customers by running a tab for each table with the bill settled on departure. Payment will require to be made by cash: we don’t accept cards. Someone has told us this might be illegal, so could you please clarify?
A: I’m not sure where the illegality is supposed to arise. There can’t be any challenge to running the tab. So far as payments are concerned, health advice suggests that contactless card payments are the safest option. However, although there are concerns that banknotes and coins pose a COVID-19 transmission risk, there’s no evidence that they’re riskier than other everyday items. The Scottish Government’s guidance for the retail sector “encourages” the use of contact-free or cashless payments where possible, but it’s not obligatory. It would be a good idea to ensure that staff handling payments follow enhanced hand cleaning routines.
Q: I would like to organise an office party to welcome staff back when we reopen. Food and alcohol would be provided but there would be no charge. Do I need a licence?
A: In the absence of any alcohol sales, a private hospitality event such as this does not require to be licensed.
Q: Is there a law that says you cannot take your own alcohol drink into a bar or pub? Is it just the bar or pub that stops you taking in your own alcohol drink?
A: There’s no law to prevent this, but for obvious commercial reasons it’s not something that’s normally allowed by the business owners.
Q: I am a member of a private members’ club. If we have a community disco for under 16 year olds in our function hall, with the bar closed and without the sale of alcohol in this area, would this be allowed or would we have to have this on our operating plan? The licence doesn’t allow children of any age in the main bar area or where any gaming machines are located.
A: You haven’t told me the position in relation to children’s function room access and the answer really depends on an examination of the current operating plan arrangements. The fact that alcohol wouldn’t be sold doesn’t rule out the possibility that a non-minor variation of the licence may be required.
Q: I manage a restaurant licensed for on-sales only. Can a customer take an opened, unfinished bottle of wine home if the bottle is sealed?
A: That would only be possible if your licence was varied to allow the sale of alcohol for off-consumption. However, you’d have to bear in mind that off-sales alcohol must be (a) purchased during licensed hours; and (b) must be removed not later than 15 minutes from the end of those hours. The terminal hour for off-sales is normally 10pm, no doubt shorter than your on-sales hours.
Q: I’m opening a hair salon with spa facilities and want to offer customers a free glass of wine. Am I correct in saying that I don’t need a licence provided the alcohol is complimentary and customers are limited to one drink per person?
A: You need a licence. There are no circumstances in which free drink can be provided where the supply is linked to a payment for goods and services. Possible loopholes were closed with the arrival of the 2005 Licensing Act.
Q: One of my favourite malts was being sold online for a particularly good price. However, when I clicked on the product the site said there was a ‘minimum order’ of at least two bottles. I can’t imagine it would be legal for a bartender to tell me I had to buy two pints when I only wanted one. How can a minimum order be legal under Scots licensing law?
A: If the retailer dispatches alcohol orders from south of the border Scottish licensing law doesn’t apply. However, even if the Licensing (Scotland) Act governed the transaction, I can’t see anything prohibiting the minimum order requirement. There are eight types of so-called “irresponsible promotions” but three don’t apply to the sale of alcohol for consumption off the premises. One of these is a promotion that “encourages, or seeks to encourage, a person to buy or consume a larger measure of alcohol than the person had otherwise intended to buy or consume”. I suppose if you asked a server for a pint and were told you could only buy two (a pretty unlikely scenario) there might be a contravention, although I reckon the primary purpose of that provision is to prevent up-selling. Of course, it’s common for off-sale retailers to restrict the sale of some beers and ciders to multi-packs: if a product can be purchased singly, linear pricing would apply.
Q: I was advised by the manager of a pub opening at 7am that alcohol cannot be sold with breakfasts until 8am. What’s the earliest time alcohol can be supplied with food?
A: It entirely depends on the terms of the licence. This pub would appear to have licensed hours starting at 8am but with permission to supply food and non-alcoholic drinks from 7am.
Q: If a licensed café is allowed to sell alcohol from 11am, can it legally open before that time to sell food and non-alcoholic drinks?
A: A licence operating plan requires to set out the activities that will take place on the premises apart from the sale of alcohol as well as the times they’ll take place. If an activity takes place outwith core licensed hours, further details are required. The level of detail pretty much depends on the requirements of individual licensing boards. In some areas it would be sufficient to say something along the lines of, “The premises may open before the commencement of licensed hours for the sale of food and non-alcoholic refreshments”. However, a number of boards look for more precision and expect a statement of the time the activity will start. This can lead to potentially awkward results. Suppose, for example, an operating plan provided that a hotel will serve breakfasts from 7am and a decision was taken to change that time. In such a case the licence holder would be subjected to the trouble and expense of applying for a major variation of the licence.
Q: If I hire new staff for my pub can they start work immediately provided there’s a personal licence holder supervising them at the bar?
A: Any person who sells or serves alcohol (other than the holder of a personal licence) requires to undertake the mandatory two-hour training course. His or her training record must be kept at the premises and produced to a licensing standards officer on request. The supervision you describe doesn’t allow you to skip the training obligation.
*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.