The UK Government's recent decision, in consultation with the devolved administrations, to close down all "non-essential premises" will have considerable impact on the licensed trade in Scotland. For those who are licence holders, attention is turning to the possibility of offering home delivery services for food and/or alcohol.
Questions also arise as regards ensuring compliance with the Licensing (Scotland) Act 2005, and what is likely to happen on the administrative side of things where new licences have been applied for, or acquisitions of licensed premises are conditional on the transfer of a licence.
The following is as at March 25 2020.
I have recently applied for a new licence, what do I do next?
As it stands, there is no consistent strategy across the different Licensing Boards to deal with new applications. However, most Licensing Boards have postponed upcoming Board Hearings. Some have cancelled all hearings scheduled up to a particular date (South Ayrshire, for example, has cancelled all hearings until 30 June). Others have postponed all hearings until further notice. You may be contacted by the relevant Licensing Board if a hearing you were due to attend has been cancelled. Some Boards will try to take decisions without the need for a meeting where possible. If you have not heard from a Board in advance of a scheduled hearing, you should contact them directly.
I have recently applied for a major variation or transfer, what do I do next?
For matters that require a Board Hearing, the above applies. For matters that can be dealt with under delegated powers, some of the Licensing Boards have indicated that these will continue to be dealt with. However, many Boards are running on a skeleton staff, and processing times will likely be longer. This is plainly a difficult issue where acquisitions (entered into prior to the lockdown) are conditional on licences being transferred, in circumstances where we are being told that processing times will be longer than normal. It would be prudent to check what the terms of the deal require.
Can my licensed premises offer home deliveries for food and alcohol even if we are required to close to the public?
Supermarkets, newsagents, and licensed shops selling alcohol may remain open. However, the UK Government has ordered that all bars, and nightclubs are to close without exception. Public houses, restaurants and cafes must also close, but food delivery services and takeaways can remain operational.
Afew Licensing Boards have already indicated that restaurants and cafes will be able to offer home deliveries for food, even if this is not explicitly mentioned in your licensing Operating Plan. One Licensing Board has indicated that if home deliveries of food and/or alcohol are not explicitly listed on the operating plan, they will only be permitted if the premises licence is in relation to off-sales only (for example, a shop).
In relation to alcohol, premises will only be allowed to deliver alcohol if off-sales permission is currently included in your Operating Plan. If you do not have off-sales permission, the UK Government has not relaxed the rules around the sale of alcohol and you would be committing a criminal offence. There are specific legal requirements to adhere to when delivering alcohol, and specific statutory timings to adhere to in terms of late night deliveries of food and alcohol, which we would be happy to discuss with you.
What do I do if my manager is absent for an extended period?
Licensing Boards appear to be ready to take a 'pragmatic' approach to the need to notify them if your Designated Premises Manager (DPM) is unable to act through illness (and a pragmatic approach to notification requirements and statutory deadlines in more general terms).
A few Licensing Boards have said that if your DPM is only going to be incapacitated and unable to act for a few weeks, then they will treat this as if the DPM is on holiday, and no notification will be required. If your DPM is going to be absent for an extended period (i.e. longer than three weeks), then it would be prudent to notify the Licensing Board as you otherwise would.
If your premises have shut down due to the UK and Scottish governments requiring closure, and your DPM is no longer employed by you, it seems unlikely notification would be required until such a time as your premises have re-opened.
What happens if I continue to trade despite the lockdown?
The UK and Scottish governments have ordered all restaurants, pubs and cafes to close. Police Scotland has announced it will instruct officers to serve emergency closure orders on licensed premises that do not close, and will report the premises to the relevant Licensing Board. Such orders remain in place for 24 hours, but can be repeated as required. The UK Government is in the process of enacting legislation to require all non-essential premises to close.
In short, if you continue to trade in circumstances where the Government has required you to close, you will be committing an offence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.