Q&A with Jack Cummins
SLTN’s legal columnist Jack Cummins answers readers’ questions on the licensing implications of the coronavirus pandemic
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: I gather a number of businesses have landed in hot water by not properly collecting customers’ contact details. In particular, there seems to be some confusion about how data should be collected from a group of visitors. Can you clarify the position? Also, do I need to take contact information from customers collecting off-sales orders?
A: It appears some operators have fallen into error by taking details from a customer identified as the “group leader”. For the purposes of the regulations, there is no such person. Instead, you require to obtain: (a) the name and telephone number of one member of each household visiting the premises, (b) the date of their visit and arrival time, and (c) the number of members of that person’s household visiting the premises at that time. The regulations do not apply “in relation to a visitor to the premises who is there solely for the purpose of purchasing or collecting food or drink for consumption off the premises”.
Q: Could you clarify if our hotel breaks the law if we accommodate people that are legally not allowed to travel to our area?
A: According to the Scottish Government’s guidance, accommodation providers should only take bookings that fall within the travel restrictions. So, in levels zero, one and two bookings can be accepted from guests coming from areas that are in the same levels. In level three, bookings should only be taken from within the same area. There is a “reasonable excuse” defence in relation to movement to and from level three and four areas. The regulations provide a list of examples, including work purposes. In level four accommodation providers must cease to trade except for very limited purposes: for example, to provide accommodation for persons moving house.
Q: I’ve been in touch with my local MSP’s office asking whether we can expect a rebate on our premises licence annual fee as we were forced to close for three months and have had to shut down again following the latest restrictions. I received a standard reply indicating that a response could take up to 28 days. Is there any legal advice you can give?
A: The Scottish Government has adopted a ‘hands off’ approach to this issue. Its spokesperson told SLTN that “the fee system operates independently of government”. That’s perfectly correct, of course; but it’s within the power of the government to modify the system as a result of the present crisis. As long ago as April, the Westminster government urged licensing authorities in England and Wales to defer taking any action where non-payment of the fee was related to the pandemic. In my view, it’s disappointing that no such guidance has been given to licensing boards.
Q: I operate a small licensed shop and try to enforce the requirement for customers to wear face coverings but other shops in the area take a casual approach which is costing me business. What does the law say?
A: According to the Scottish Government’s guidance for the retail sector: “Where face coverings are required, people responsible for relevant premises should take reasonable steps to promote compliance with the law.” Non-compliance by customers can result in a fine. No offence is committed by a retailer who serves a customer breaking the law. In my view this needs tightening up and more done through enforcement to support responsible retailers like yourself.
Q: I’m considering running some wine tasting sessions in people’s homes. Obviously, without a licence I cannot provide or resell alcohol. However, if I provide them with a list of bottles to buy themselves, can I charge for the tasting advice and information?
A: There’s nothing to prevent you charging just for providing wine-buying advice per se. As I think you’ve gathered, if you purchased alcohol on your own account and took alcohol to a customer’s home for tasting purposes, even in the absence of a separate charge for the drinks, the law would treat the alcohol as “sold”. Section 3 of the Licensing (Scotland) Act 2005 treats alcohol as sold where it’s supplied as part of a contract and closes a loophole in earlier legislation.
Q: Do pub customers need to wear a face covering when seated at a table but not eating or drinking?
A: An exemption applies to persons “seated at a table” in a restaurant, café, bar or public house without any requirement to be eating or drinking when seated. Customers must, of course, wear coverings when moving about the premises. A separate exemption for “eating or drinking” applies to a number of other indoor public places. For example, cinema patrons may remove the covering for those purposes.
Q: Can you tell me what amounts to a “household” for the purpose of restrictions on gatherings?
A: In terms of the Regulations, “household” is defined as: “(a) one person living alone, or (b) a group of persons living together in the same place as a family or other unit (whether or not related) and who have the place as their only or main residence”.
Q: There’s been a lot of confusion about the resumption of outdoor live events with physical distancing and a cap on the numbers attending. In particular, it seems that these events can’t take place on licensed spaces. Can you please clarify?
A: When a new version of the Scottish Government’s lockdown-easing road map was released on August 20, it revealed that “certain outdoor live events (involving open space or organised seating)” could resume on August 24 with the restrictions you mention. A new set of guidance for the “events sector”, distinct from the guidance for the “hospitality and tourism” sector and published around the same time, appeared to suggest that the permitted events could be held in the likes of beer gardens provided they operated with two-metre physical distancing. However, the ray of hope for businesses with large outdoor spaces quickly faded. There was no change to the ban on music - even at low level - and, in any case, many premises licences are saddled with a condition prohibiting music (or at least amplified music) in licensed external areas. Although the position is not as clear as it might be, it seems that there’s very little “read across” between the two sets of guidance.
Q: Am I only allowed to admit customers who have pre-booked?
A: When Nicola Sturgeon announced that hospitality guidance was to be put on a statutory footing, she said that “Wherever possible customers should pre-book tables in advance”. But a subsequent newspaper report suggested – wrongly – that it had become a requirement: it doesn’t feature in Scottish Government’s statutory guidance. I suspect pre-booking is encouraged with a view to prevent queuing.
Q: My local licensing board has a policy stipulating that a licence will be treated as “ceasing to have effect” if the premises is closed for three months. Where does this leave me in the current emergency?
A: I reckon that policy position is a misinterpretation of the law. The Licensing (Scotland) Act 2005 provides that a licence ceases to have effect where the premises “cease to be used for the sale of alcohol”. The matter is not entirely free from doubt, but there will be many circumstances in which premises close down for an extended period although there’s an intention to re-open at some point. In my view, premises are only be regarded as ceasing to be used for alcohol sales where they are converted to another use. However, in your case, the position during the current emergency is reassuringly clear. The Coronavirus (Scotland) Act 2020 amends the 2005 Act by adding the following section: “For the avoidance of doubt, a licensed premises does not cease to be used for the sale of alcohol… if the premises cease to be used for the sale of alcohol for a temporary period for a reason relating to coronavirus.” This amendment will expire in due course.
Q: I’m keeping my hotel open for food and alcohol collections. There’s a garden area with seating to the side of the building which isn’t part of the licence. Can I serve tea and coffee there to customers waiting for their orders?
A: You cannot. The provisions in the Regulations banning the sale of food or drink for on-consumption provide that “an area adjacent to the premises of the business where seating is made available for customers of the business… is to be treated as part of the premises of that business”.
Q: My pub’s licensed hours start at 11am. Can I open up at 9am to provide a food collection service for my elderly customers?
A: Some licensing boards are content to have a general statement in a licence operating plan along the lines of: “The premises may open prior to the commencement of licensed hours for the sale of food and non-alcoholic beverages”. But other boards, albeit a minority, require something more specific, such as: “The premises may open at 9am for the sale of…”. (In such a case, a change to the opening time would require an application for a major variation.) If your operating plan is silent on the matter, you’d be technically in breach. However, since you’d be providing a very valuable service one would like to think that you shouldn’t expect an enforcement challenge.
Q: My friend works in a specialist off-sales shop. Does she need a personal licence? She’s usually on her own as the premises manager who owns the business is elderly and has decided to stay at home during the current situation. Also, there are no personal licence holders available to help out.
A: Your friend doesn’t need to hold a personal licence to sell alcohol but she must have received the mandatory two hours’ staff training. Alcohol sales must be authorised “generally or specifically” by a personal licence holder; but by virtue of a general authorisation he or she need not be on the premises at all times. That said, I’m aware of cases in which the police have drawn a licensing board’s attention to a premises manager’s almost permanent absence citing concerns about the supervision of the business. There’s a clear case for getting this sorted by the appointment of a new premises manager – possibly your friend. Obviously, as matters stand, that’s not going to be a straightforward process and the business owner ought to take legal advice.
Q: Can pubs that don't sell food remain open as off-sales during the lockdown?
A: Yes. Food or drink can be sold for consumption off the premises. Of course, the ability to see alcohol depends on that permission being included in the licence and social distancing measures should be put in place.
Q: I’m trying to keep my restaurant business going with meal deliveries, but there’s no mention of food takeaways or deliveries in my licence. Is there a way to get round this problem?
A: The problem has been eliminated by the Coronavirus (Scotland) Act 2020 which adds the following standard condition to all premises licences: “If food is sold on the premises but the operating plan contained in the licence does not contain an express term to the effect that food may be taken away, or delivered, from the premises for consumption off the premises, a term to that effect is to be implied in the operating plan”. However, you should bear in mind that the Act’s provisions are temporary: the initial expiry date is September 30, 2020 with the possibility of extensions until September 30, 2021. So, at some point that new condition will disappear. When that happens, if you intend to continue with food takeaways and deliveries you ought to apply for the variation of your licence.
Q: When the lockdown measures were announced, it was clear that pubs and bars had to close down. What’s the position regarding members’ clubs?
A: Regulations have now been made which give legal backing to the original business closures guidance and these make specific reference to clubs: their bars and eating facilities must close. A question might arise as to whether clubs may continue to hold meetings in other parts of the premises. No one may participate in a “public place” gathering of more than two people, except in circumstances that couldn’t apply here. There might be an argument that a private members’ club isn’t a “public place” but frankly I wouldn’t fancy trying to establish that. In any event, more fundamentally, there’s the overall rule that “no one may leave the place where they are living” unless they have a “reasonable excuse” and that’s hardly likely to be available.
Q: The premises manager in my shop has mild Covid-19 symptoms and is self-isolating for the next two weeks. Do we need to notify the licensing board or take any other action in relation to the licence?
A: The licensing board must be advised in a number of situations, including the cessation of the premises manager’s employment at the premises and where he or she “becomes incapable for any reason of acting as premises manager”. In those cases, certain steps must be taken. Firstly, the board must be notified “not later than seven days after the occurrence of the event”. Secondly, within six weeks after the event takes place, a variation application must be made to substitute a new premises manager. A spell of short-term illness is not regarded as an “event” triggering these procedures, but you should keep the position under review.
Q: I’ve managed to keep our pub open for the collection of takeaways ordered by phone. We only allow a maximum of five customers to come into the premises at any one time and we operate a self-distancing policy in accordance with government guidelines. Some customers are asking if they can have a tea or coffee while waiting for the order. We wouldn’t serve alcohol but can we supply other drinks?
A: The short answer is “No”. Scottish Government guidance makes it clear that the use of restaurants, cafés and pubs is limited to food delivery and takeaway. (“Food” includes alcohol.)
Q: I’m due to complete refresher training in the next couple of weeks to ensure that my personal licence isn’t cancelled. For obvious reasons, even if courses are available, I don’t want to take the course exam in a group setting. What are my options?
A: A number of training providers can set up online e-learning for the teaching part of the course, but the actual exam needs to be invigilated. I understand that at least one awarding body has managed to set up a “qualify at home” solution. I suggest that you speak to a training provider for more information. Your licensing lawyer can point you in the right direction. Please also be aware that I expect the Scottish Government will take early steps to address this problem, possibly by pushing back deadlines or allowing individual licensing boards to do so.
Q: Is there any way in which I can extend my off-sale hours beyond 10pm to cope with extra demand during the current emergency?
A: Unfortunately not. The maximum off-sales hours - 10am to 10pm - are set in stone and can’t be extended by any means. However, remember that alcohol can be delivered at any time (except during the period between 12 midnight and 6am) provided that payment is made during licensed hours.
Q: I operate a “specialist” off-sales and apart from a limited selection of soft drinks and snacks we only sell alcohol. Do we need to provide groceries if we stay open?
A: No. According to Scottish Government guidance, “off-licences and licensed shops selling alcohol” can remain open.
Q: With my restaurant now closed and business restricted to takeaways, I’ve found myself unable to sell alcohol as my premises licence is restricted to on-sales. Can you think of any solution?
A: I always advise restaurant clients who are applying for a premises licence to include a request for off-sales. In my experience this is unlikely to meet with an opposition from the licensing board, particularly since the alcohol offer is likely to be priced unattractively compared to the usual off-sale outlets. The only way to remedy the situation is by means of a major variation application which requires to be advertised and considered at a board meeting. Plainly, at the moment that option isn’t available, but there is at least a faint glimmer of hope. With so much disruption to licensing board business, the Scottish Government is bound to be giving thought to emergency measures to keep the system running as normally as is possible. In your case, the solution would be an extension of the list of matters that can be dealt with by means of a “minor variation” which the board “must” grant. So, if the addition of off-sales became “minor”, legislation – no doubt temporary – might provide that (a) the application would be sent to Police Scotland for their consideration; and (b) in the absence of an objection or adverse representation, the application could be granted by the board’s clerk subject to any conditions considered appropriate. We shall have to wait and see.
Q: My personal licence will be expiring soon and I’m not willing to sit an exam in a group environment even if courses are available. Do you know how boards are dealing with this problem?
A: The Glasgow licensing board has announced that licences (of all types) due to expire on or before May 31 will be automatically extended by a period of three months, subject to government guidance on Covid-19. As to the position elsewhere, those affected by this problem should check with the licensing staff at their local council offices.
*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.