You and the Law

09-Aug-2006

 

Some police and licensing authorities are making demands on pubs which are incompatible with the 2003 Act, don't be bullied by them, says Jeremy Allen ABII, partner with specialist licensing law firm Poppleston Allen. Keep this page to show to police and other authorities.

 

1. Under the new Act must a Designated Premises Supervisor (DPS) always be on the premises when alcohol is sold?

The short answer to this question must be no. The Licensing Act 2003 states that there must be a personal licence holder nominated as DPS to permit the sale of alcohol. It does not state that the DPS must be on the premises when the alcohol is sold. The Guidance specifically states at paragraph 7.67 “this does not mean that the condition should require the presence on the premises at all material times of the Designated Premises Supervisor”.

It would be stupid to have to change the DPS simply because they are away for the weekend.

2. I am the DPS and must take a holiday/ leave the premises sometimes when alcohol is sold. Must my stand-in hold a personal licence?

It seems to me quite clear that if a DPS (who must hold a personal licence) goes on holiday the premises can continue to trade whilst he/she is away. The same would apply to a period of absence due to sickness where this amounted to a few days or more. More prolonged absence, such as maternity leave, is more difficult. It would be sensible in those circumstances to appoint a new DPS. After all, they can always become DPS again once they return to work. If you are away from the business then I believe you would be sensible to look carefully at who is running the premises in your absence. There is an argument for saying that if you run uncontroversial premises which rarely have trouble you could safely leave the business in the hands of your regular staff. If you are running a low risk local pub and they have been with you for a long time, but don’t have personal  icences, then you would probably be OK. If, on the other hand, you are running more high-risk town centre premises then you may need one or more personal licence holders to stand in whilst you are away.

To be safe and professional, I believe there should be another personal licence holder in charge of the premises whilst you are away. This would ensure that you have a good argument until the law is clarified.

3. Is it OK to leave the business in the hands of somebody who obtained grandfather rights, or must he/she have some new qualification?

It does not legally matter whether they acquired their personal licence though grandfathering or because they obtained a new qualification. The new qualification however would be more useful because it ensures holders know all the new provisions under the new Act - some licensees who have taken the NCPLH to acquaint themselves with the new law are suggesting that those who 'enjoyed' grandfather rights are merely 'inheriting ignorance' see page 14.

4. Must a personal licence holder be on the premises at all times?

The short answer appears to be “no”. The Guidance states “the fact that every supply of alcohol must be made under the authority of a personal licence holder does not mean that only personal licence holders can make such sales or that they must be personally present at every transaction”. It goes on to say “a personal licence holder may authorize members of staff to make sales of alcohol during the course of an evening but may be absent at times from the premises when a transaction takes place”.

On 29th April 2005 the DCMS wrote giving their views on what authorisation meant. It stated:-

In broad terms this means that the personal licence holder doesn’t have to be on the premises provided that he authorises other people to carry out his act in his absence. I would suggest that this is done in writing.

Something on the lines of:

“I …….. hereby authorise ………. to sell alcohol under the Licensing Act 2003”.

You must be satisfied the person you are authorising has been properly trained and is aware of their responsibilities and it would make sense, if you have given proper training, to add something to the effect of:

"I confirm that ......... has been made aware of his/her legal and social responsibilities under the Licensing Act 2003" and have both parties sign and date the document.

What is the position with regard to running a tab at licensed premises under the new Act?

Under the previous licensing law there was a complete ban on purchasing alcohol on credit unless accompanying a meal. That included placing your credit card behind the bar. This was not carried forward under the new Act and most new licences should have no such restriction.

One or two councils have carried this forward. In some cases this was done because no application was made by licensees to remove the embedded restrictions contained in the old Act. If they didn’t, there was an argument that they all simply carried forward and had to be included on the new licence. If an application was made to remove embedded restrictions, then this should also go. In the first instance, check your licence and see whether there is any restriction. If there is nothing said about credit sales then the new law applies and there is nothing unlawful about such sales.

If you see something on your licence then you should check the application to see whether you applied for embedded restrictions to be removed. If you did, and the council simply carried them forward, then you need to write to the council asking them to remove the condition. If you have got such a restriction and you didn’t apply to lift the embedded restrictions, then you can always do this in the future. Next time you make an application you want to remember to include a reference to removing this condition (and maybe others).

In summary:

 Some police forces are demanding that you close the premises in the absence of a personal licence holder. They may quote the Criminal Justice and Police Act 2001 and say you have to close. In my view, you can simply refuse to close. This closure power relates to unlicensed premises and cannot be used to give extra powers to the police under the 2003 Act.