Weird and wacky ways councils have read implementation of the Licensing Act.
By Nial McCann and Piers Warne of thePublican.com's team of legal experts from London solicitors Joelson Wilson.
The Publican has been full of stories in recent weeks of bizarre and incorrect interpretations of the Licensing Act 2003. Rumours abound. Below is a selection that have been brought to our attention together with advice as to how to deal with such situations should they arise.
Did you hear the one about the pub in Yorkshire which was closed down for 45 minutes as a personal licence-holder was not on site? Appropriately, the pub in question was a Wacky Warehouse. While the council has apologised for its mistake, is it really that clear cut?
On the face of it, the Act makes it clear that a personal licence-holder does not have to be on site at all times, merely that all sales of alcohol have to be authorised by a personal licence-holder. Therefore, provided that the authorisation is given, they are free to leave the premises.
But what if the absence is for a three-week holiday? This is more problematic. Guidance issued by Department for Culture, Media & Sport indicated that if your only personal licence-holder is going to be away for more than a short lunch break, you should have a specific letter to hand on the premises of delegated authority from the personal licence-holder to the staff who will be serving customers, authorising them to do so. This is especially true if the licence-holder is going away on holiday.
Be warned though that some of you may have accepted a condition on your premises licence to the effect that a personal licence-holder has to be on site at all times. As you are no doubt finding, such a condition is very onerous - it is best to ensure that as many of your staff members as possible obtain a personal licence.
One council tried to argue that if you vary your premises licence, you cannot operate with the varied hours or conditions until the hard copy of the new premises licence is received. Imagine if this were correct! Months would elapse between varying your premises licence and benefiting from the variation. Similarly, the fact that you have to display a correct summary of the licence would mean that you would not be able to operate from the date that licence is granted, which certainly was not what the legislation intended. If you are still shut because you have not received a licence to display, you can open without it!
Prominently displayed
Another issue that has caused much concern is that section 57 of the Act states that the summary of your premises licence (or a certified copy) must be prominently displayed at the premises. What counts as "prominently displayed"? We have been informed that some summaries run up to four pages and that to display each page behind the bar would leave no room for the Optics!
As usual this is a contentious issue. In certain areas licensing officers have been insisting that all the pages are displayed and threatening £500 fines if this is not done. However, some councils, rather than spending their entire budgets on speed bumps, have forwarded framed double-sided premises summaries. Pretty though they are, it means that only one side of the premises summary can be displayed at one time! Until the norm becomes clearer, if faced with a premises licence summary that runs to many pages, why not either make a certified copy of the summary, reducing the pages in size or, alternatively, place the pages of the summary in a see-through plastic wallet displayed behind the bar.
On the same theme is the approach of one particularly officious council where officers have been "raiding" premises demanding that premises licences are displayed even though a correct premises licence has yet to be issued. Short of throttling someone, you do have a valid defence. An offence is only committed if the summary is not displayed without reasonable excuse. This interpretation has yet to be tested in the courts, but we would argue that if the summary is incorrect you have a reasonable excuse for not displaying it. If such reasoning fails to impress the officer, we would recommend that you display the licence with the words, "Incorrect - awaiting correction" plastered across it to avoid confusion.
Quick foxes and lazy dogs
Perhaps the prize for the most bizarre interpretation of the Act should go to the council which put as a condition on the operating schedule of a premises licence: "The quick brown fox jumped over the lazy dogs". Such wording presents practical difficulties. What is considered a "quick" fox? What breed of dogs are required and how do you ascertain whether they are lazy?
If your council tries to enforce such a condition we would ask them to remove it on grounds of uncertainty. Be aware that a breach of condition on a premises licence carries a penalty of up to £20,000 and up to six months in prison - problematic if you are a greyhound owner, or take in injured foxes.
On a more serious note, if you notice that your licence contains mistakes, you should send it back for correction.
Anything you display which is wrong (and which is not indicated on the face of the licence as wrong) could be held to be the conditions which you operate to and therefore any breach (even if it relates to the "wrong" part of the licence) could lead to a review of the licence.
We are sure that the above is just the tip of the iceberg. We will attempt to answer as many queries as possible in the Q & A column. Please send any queries to legal advice, The Publican, Ludgate House, 245 Blackfriars Road, London SE1 9UY.