There is an interesting legal argument raging at the moment about who actually sells the beer in a pub.
Is it the person behind the bar, the designated premises supervisor (DPS) who is in charge, or the holder of the premises licence?
The debate centres, of course, on underage sales. We already know that the individual who physically makes the sale to the test purchaser (yes, it is still going on in many places) can be charged with an offence, or issued with an on-the-spot penalty notice. What is not so clear is who else can be held responsible when this happens.
Some local authorities have got it into their heads that the DPS takes on the role of licensee in a pub, similar to the old system. They think that as he has to exist in order for alcohol sales to be made, the actual authority to sell must stem from him and him alone. So even if he is not in the pub at the time, he can be charged with selling to an underage person if someone who works for him makes the sale.
Even further up the chain is the operating company. A district judge in a recent case has held that they too can be a "person" under section 146 of the Licensing Act 2003, and can make sales to minors even when they are 100 miles away. It is up to them then to show "due diligence" in preventing the offence when they are hauled into court.
Limited space, you will be pleased to read, does not allow me to go into the full legal details of each of these examples, but I am highly dubious about the second situation and completely at odds with the first. There seems to me to be not one jot of legal support for the view that a DPS can be held responsible for sales made when he or she is not present, merely on the strength of holding a nominal role under the Licensing Act.
The ownership of the beer is also a red herring these days. There are hundreds of DPSs working for companies and breweries who are paid a salary and do not own the stock. There are similarly independent pub owners and freetrader DPSs who do.
The evil to be confronted is underage sales: the passing over of alcohol to someone under 18. That can only happen in the bar. Allowing it to take place is another matter - and a separate offence under the Act.
Q&A
Drinks for the band
Q . In the past you have written about drinks for staff, but what about our regular band who play in the pub? Can they buy drinks after they have finished playing, even if this is beyond the time stated on our premises licence? Do they qualify as employees under the new licensing laws?
A. There is a more general rule: no person, whether an employee or not, is allowed to buy a drink from the bar after the end of the agreed hours that apply on your premises.
The new law states clearly that no sales or supplies of liquor may be made outside these hours, which form a condition of your premises licence, except in very limited circumstances. The only exception, which might still apply to you, is where persons actually reside on the premises. If you have live-in staff, for example, then they would be allowed to purchase and consume drinks at any time. But non-resident staff do not share the same exemption.
Even if you describe the musicians as a "resident band", that still does not qualify them to make purchases after time, as they are not legally residing on the premises.
The only way in which drinks would be allowed for the musicians is under the exemption for employees who are genuinely entertained by the licensee or person in charge of the business. So, if the pub provided a free round of drinks when the musicians had finished playing, this would be acceptable in law, because there would not be a sale.
The old exemptions are not really needed in this context, because consumption of alcohol is not a licensable activity and where there has been no sale, there is no breach of conditions. If your licence has opening hours, these will only apply to the public, and employed musicians might be considered exempt if a gift of the drinks was established.
Is pool final a sporting event?
Q. We recently advertised a pool competition final between our pub and another one in the local league, inviting people to come and watch. We did not issue tickets or anything. Our local council licensing man has said it is regulated entertainment and we should have it covered on our licence. Is this right?
A. I take it he is referring to the definition of "indoor sporting event" contained in the new Act. At first sight it would appear that any pool contest or match that involved spectators could well be caught, especially if you advertised it as taking place. However, the earlier definition of "entertainment" requires that it should take place in the presence of an audience and "is provided for the purpose of entertaining that audience". Normal pool matches that take place in pubs may attract spectators, but the purpose is for the entertainment of the participants. In my view, that means it is not a regulated entertainment under the terms of the Act.
So the answer is that unless you intend to promote and run a number of exhibition matches and other audience events specifically to attract extra custom, you will not need to vary your existing premises licence to continue with pool competitions in your pub.
Sales under supervision
Q. We do a good trade in home-cooked lunches at weekends when our 16-year-old daughter helps out by serving when her mother is preparing food in the kitchen. Can you advise us whether she is prohibited from serving customers unless I am present? I am the DPS and a personal licence holder.
A. Is she serving alcohol, or just the food? If the latter, then there is no requirement for every sale to be authorised by an adult. The requirement in the Licensing Act is for sales of alcohol to be supervised. Working on other activities, such as catering, clearing tables, washing up or stocking the bar is not prohibited for young persons working alone. Even if you are out of the bar, she can serve food, but not alcoholic drinks.