Legal Q&A: late-night levy bills, gaming machines and remote payments

Comedy and live music

Q: I run a comedy and live music club near the south coast. I have heard the 10pm curfew does not apply to concerts, or films at cinemas that have started before 10pm, and therefore these performances can continue. Does that apply to comedy and live music?​

A: You are referring of course to the requirement that businesses selling food or drink must be closed between 10pm and 5am (subject to exceptions). The Regulations state this general rule does not apply where your business or service is a cinema, theatre or concert hall, for the purpose of concluding a performance, which began before 10pm. 

There is no specific reference in any guidance to comedy or indeed music performances but NME​, the music magazine quoted a Government department for Digital, Culture, Media and Sports spokesperson stating to them on 23 September that “dedicated music venues may conclude after the 10pm curfew as long as a performance starts before 10pm, however, outlets, including bars, must be closed by this point”. 

This is not a quote you can find on any Government website but has been much repeated in the music press online and one has to acknowledge in this fast-moving world of pandemic legislation that might be the best we can expect.

What is also worth noting is that the regulations do not specify what type of performance is required, rather the type of venue at which the performance takes place.

I would therefore suggest, and it seems consistent with the purpose of the regulations, that a performance of live music or comedy at a theatre, cinema or concert hall would be permitted to continue after 10pm (albeit the bars would all have to be shut).

There is no definition of cinema, theatre or concert hall in the regulations and so they should be given their common meaning and, in that respect, you may conclude that your venue is partly a mix of a theatre or concert hall.

I recommend making enquiries with the Police and Licensing Authority in the first instance but as I have said, I believe such performances would be permitted if your venue can to some degree be described as a cinema, theatre or concert hall, in the wider sense. 

Please note this commentary relates to national regulations and advice in England only, and does not relate to locally imposed regulations. Where an answer deals with local restrictions, Wales or Scotland we will explicitly say so.

Table Service

Q: I run a pub and I know under the present rules I have to provide table service to all my customers.  What about payment though?  I do not have remote payment terminals and these can be very expensive, but I do not want to be in breach of the regulations. At the moment, customers come to a dedicated counter, which is completely risk assessed and socially distanced, to pay at the end of their visit.  Is this permissible?​

A: From Thursday 24 September, in venues which sell alcohol, food and drink must be ordered from, and served to customers who are seated, in both indoor and outdoor settings. You mention “table service” and of course in many cases this will be the case, but clearly ordering can be done by an app or other method if you so choose.  

Regarding payment, the regulations do not say payment must be taken by customers who are seated, but the Government guidance states that payment should be taken at the table wherever possible, although it can be taken at a bar or counter if safety measures are in place.

Therefore, if you are satisfied that your Covid-secure risk assessment is satisfactory there is no problem with your customers paying at the counter as you describe.

Annual fee

Q: Along with my annual fee on my premises licence I am due to make a payment for the late-night levy. Over recent months I have been closed and now my business is subject to the 10pm curfew, so do I still have to pay the levy?​

A: There is no discretion for the licensing authority to waive the levy and further, non-payment of the levy can result in suspension of the premises licence.  

However, we are aware that many authorities are working hard with their licensees and looking at their specific circumstances and it may be that they may allow you to either defer the payment for now or pay in instalments. 

There is mounting pressure on central Government to look at the issue across all the authorities where levies are in place and so watch this space. 

Gaming machines.

Q: I run a town centre bar. We have a couple of gaming machines which I have kept on, although customers are required to be seated at all times whilst playing them. Last night a licensing officer came round and frowned, and although he did not say anything he obviously wasn’t very impressed. Am I allowed to do this?​

A: Yes. There is nothing to stop gaming machines being used, but if you are serving alcohol, then all orders must be served to customers who are seated. No doubt your machines are located somewhere where a satisfactory degree of supervision can take place, not just from an age-restriction perspective, but also to ensure compliance with the Covid-related legislation and regulations.