Officials err on side of caution

One of the main uses of the new minor variations procedure was alleged to be the removal of "unwanted or unnecessary" conditions on licences. However, experience has shown that this is not as simple or straightforward as the Department for Culture, Media & Sport (DCMS) would have you believe.

There is a notable reluctance among licensing officers and their colleagues in environmental health departments to make concessions in this area. In some cases they become convinced that any relaxation, however trivial, will somehow create a serious problem at the venue.

So you may well waste £89 making an application that involves, say, removing an old-style ban on children in one part of the premises, when the licensing officer says that this would "adversely impact on the licensing objectives by exposing children to risk of harm".

Why? How? The Government decided long ago that the restrictions on the presence of children in public houses was unnecessary and outdated. They deliberately removed the under-14 rule for bars in the 2003 Act and replaced it with a provision that young people under 16 should be accompanied (in bar areas only, it should be noted, or late at night in the whole premises) rather than completely excluded.

So a residual condition concerning under-14s ought to be able to be removed from a licence by the minor variations procedure, especially when it concerns, for example, a function room — which would probably have been exempt under the old law anyway.

But the problem is that control of minor variations is given entirely to licensing officers and there is no challenge or appeal against their decisions. They will rely on this in erring on the side of caution, even in situations such as this when there really is no logical reason to block the application.

Many practitioners have effectively turned their backs on this procedure, even though it costs more to go down the full variation route. They think, rightly, that it wastes time and is just throwing money away for the client, because in most cases they will still have to start the whole variation process from scratch.

It is a great shame that licensing officers see this type of application in this light. But to a certain extent, given the current climate, it is inevitable that they take a negative view of attempts by the licensed trade to change their mode of operation "by the back door". So what started life as an offer of assistance to the trade to make life easier has turned into something of a losing lottery ticket.

Q&A​

Discount for a group​

Q.​ We are having some difficulty in finding out what is and is not allowed under the new mandatory conditions. For example, if I offer a small discount on a pint of beer to members of a real-ale group, on production of a membership card, am I infringing the group discount rule?

A.​ These problems are bound to arise until the dust has settled. The Department for Culture, Media & Sport guidance was at pains to point out that "normal" discounting practices would not be caught by the new rules. Unfortunately, enforcement agencies are being rather too rigid in their interpretation of banned discounting, possibly without looking closely enough at the wording of the conditions.

Discounts are not banned. What is banned is "unlimited or unspecified" quantities of alcohol either free or for a fixed or discounted price to a group, for the purpose of encouraging consumption that could lead to breach of the licensing objectives. A small discount per drink is neither unlimited nor unspecified and could not be said in itself to breach this particular condition. Nor is it a "prize" to encourage or reward over-consumption.

Agencies must take paragraph 1 of the new conditions as a whole and not cherry-pick words or phrases from it to justify a clampdown on normal marketing practices.

Telephoning bets from a pub​

Q.​ Can you tell me if I am breaking the law if I let my customers use the telephone in the bar to place bets if they are watching the pub TV? I allowed a local bookie to put an advertising card near the phone point, but I also have taxis and takeaways etc on the same board. Am I liable for anything?

A.​ I do not think you are breaking the law in any way. The reason for this is that the telephone does not extend the bookmaker's business into your bar. The call is received at his office and any transaction is, therefore, deemed to be carried out there, where he accepts the bet.

It is only if the actual making of bets starts to take place in the pub that you need to be careful. Bookies cannot locate themselves in the pub to do business, because it is not licensed for that and a prosecution could follow. The Gambling Commission has recently publicised the fact that it is clamping down on illegal pub betting activity.

I assume that the people placing bets already have an account with the bookmaker, so they are merely using your public telephone to contact him to make a bet, to save them having to go down the road. This may be seen as lazy, but not illegal!

Opening doors early​

Q.​ We have a premises licence for this village pub with 10am opening on Sundays. Does that mean actually opening the doors at that time, or can people come in a bit earlier as long as we do not sell alcohol? There has been a complaint locally about people turning up early.

A.​ I assume that the licence has been subject to a variation, either during transition or afterwards, to obtain two extra hours on Sunday morning. This means that you will have completed box O stating the hours the premises are open to the public, as well as the hours when you may sell alcohol.

If you have inserted 10am there, then it becomes part of your operating schedule and some people maintain that it imposes an obligation on you not to allow customers before that time. My own view is that pubs prior to transition had 24-hour opening as of right, and that great care should be taken not to lose rights that you had before. In any case, it is very difficult to enforce under the current law, as long as no licensable activity is taking place.