The second change in the new consultation previously mentioned (Rapid TENs to aid the trade) is a long-standing problem, which I first wrote about at the time of the passing of the Act and have raised regularly since — the unreasonable requirement for a grieving family to apply for continuation of the licence within seven days of the death of the licensee.
There have been some terribly unjust and frankly heartless examples over the past four years — one where a widow whose husband was murdered outside their pub lost the licence because she did not meet the strict deadline.
It compares so unfavourably with the previous licensing regime, where the continuation of the licence was automatic on the death of the holder, and lasted for at least two transfer sessions, which could be up to three months or more. No paperwork needed, and time to get your affairs in order.
Bowing to pressure, the Department for Culture, Media & Sport has at last officially recognised that this is unfair and has, therefore, proposed that for interim authorities and the reinstatement of the premises licence following the death, insolvency or incapacity of the holder, the period of notice should be increased from seven days to 28 days, and that the effect of these two notices should last for three months instead of two, as at present.
This will at least give the family time to get the paperwork together or instruct the solicitor to do so on their behalf. It is still not as good as the old system, where the family had the protection order as of right, but it is far better than the current deadline, which was always seen as inexplicably short.
Of course, this does not exempt the pub from the requirement to have a designated premises supervisor or all sales of alcohol made under the authority of someone holding a personal licence. Arrangements will have to be made quickly if the deceased licensee held all three positions on his own (as sometimes happens in small pubs) and there was no one else with the required qualification.
However, knowing the licensed trade as I do, there will always be colleagues around to lend a hand if a tragedy occurs or if a widow is left on her own without an understanding of the new laws. I would also hope — as I know has already been the case in some areas — that the local licensing officer will be sympathetic to the situation and can be flexible.
Q&A
Betting between players
Q. I have just been shown part of a publication by a government department about betting in pubs, which says that the licensee or DPS has responsibility. Several of our regulars bet with each other on pool games, sometimes just for drinks, but on a couple of occasions for cash. Can I be prosecuted for allowing this?
A. It would pay you to be extremely cautious about any form of betting taking place on licensed premises, and certainly the Gambling Commission has recently revised its advice on gambling in pubs, which you should certainly look at.
However, it is necessary to draw a distinction between the playing of games of chance for money, which is now controlled by the Gambling Act 2005, and the playing of games of skill for wagers between the participants, which is not controlled in the same way.
Games such as darts, snooker, pool, shove ha'penny and skittles are considered games of skill, in which the element of chance is not predominant. So if the opponents bet with each other on their own prowess, this is perfectly in order and the winners may claim the money or drinks that have been wagered on the outcome.
What is not covered by this concession is the placing of side-bets or the making of a book by a non-participant on the outcome of the game. This certainly constitutes gaming and should be actively discouraged wherever it is encountered.
It might be sensible to ban all forms of gambling that have not been authorised by you as the licensee and DPS. In this way you can remove the possibility of borderline cases, which could land you in court. Remember that the DPS does have responsibility for gambling activities in a pub.
Is a TEN needed?
Q. Our pub is next to a local hall where functions are held, such as weddings and family events. Next week there is a birthday party and one of the guests told me they are planning a cash bar, but it is a private party so they do not need a licence or temporary event notice (TEN). Is this true?
A. If indeed this is a genuine private party with invited guests and the drinks are supplied free at the expense of the host, as is sometimes the case, then a TEN is not required. However, it is true that certain private parties, such as weddings, do have a cash bar, which is run either by the caterer or a local licensee.
Because they are selling alcohol at the time, rather than merely providing it for the party, then the seller will need a licence or authority to make that sale, which is where the TEN comes in.
However, in terms of entertainment, live or recorded music will require a TEN if the event is "for consideration and with a view to profit". This is where the organiser sells tickets for the event and then puts on "free entertainment" or a "free bar". Clearly sales are being made that require an authority of some kind.
If it is a truly private event, then the exemptions provided by schedule 1 of the Licensing Act 2003 will come into play. If no charge of any kind is being made by the organiser and all drinks are free, then it probably would not need a TEN.
Two strikes date
Q. Last year the Government said it was changing the law on sales to under-18s so that the premises licence holder could be prosecuted after two examples on his premises rather than three. Is this law yet?
A. No. Several of the licensing changes under the Policing and Crime Act are scheduled to come into effect on 29 January, although at the time of writing the relevant guidance does not appear to have been produced. From that date, only two examples (not necessarily prosecutions) can trigger action against the licence holder.