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Alcohol sale and licensed activities

Content:

Overview and introduction

England and Wales:


Licensing system - what is regulated
Types of Licences

Licence conditions

Under-age sales and age verification

Early Morning Alcohol Restriction Orders and Late Night Levy

Regulated entetainment

Late night refreshment

Temporary events

How to obtain a licence

Enforcement

Northern Ireland

Scotland


Introduction

The sale of alcohol is regulated under different legislation in England and Wales, Scotland and Northern Ireland. In general, a licence is required both by the person selling the alcohol and for the premises where the sale occurs.

The sale of alcohol to persons under the age of 18 is forbidden throughout the UK.

The following may also be relevant to this activity:


Food selling and manufacturing
Manned Guarding
Music licences
Public houses
Smoke-free premises

England and Wales

Licensing system - what is regulated


The Licensing Act 2003 reformed the licensing of alcohol sales, the provision of regulated entertainment and the provision of late night refreshment. For the purposes of this Act the following are licensable activities:


* the sale by retail of alcohol;


* the supply of alcohol by or on behalf of a club to, or to the order of, a member of the club;


* the provision of regulated entertainment;


* the provision of late night refreshment.

The system of regulation operates through the issuing of personal licences, premises licences, club premises certificates and temporary event notices. Unlike the former legislation, the Licensing Act 2003 does not prescribe the days or opening hours when alcohol may be sold by retail for consumption on or off premises, nor does it specify when other licensable activities may be carried on. Instead, the applicant for a premises licence or a club premises certificate is able to choose the days and hours during which he wishes to be authorised to carry on licensable activities at the premises for which a licence is sought.

A licence or certificate will be granted on those terms unless, following the making of representations to the licensing authority, the authority considers it necessary to reject the application or vary the proposed terms for the purpose of promoting the licensing objectives.

Retail sale of alcohol: generally, both a premises licence and a personal licence are required for the sale and supply of alcohol. Tthe provision of alcoholic beverages which are genuinely free does not amount to ‘sale by retail’ and is therefore not licensable, so long as customers do not in reality have to purchase another product or service. See e.g. The Publican's Morning Advertiser regarding a retail business which offers "free" alcohol to the public.

Types of licence

Premises licence: a person (i.e. an individual, company or other <legal entity> who carries on, or proposes to carry on, a business which involves the use of the premises for the sale of alcohol or other licensable activities may apply for a premises licence.

Personal licence: the holder of the premises licence must appoint an individual holding a personal licence as the “designated premises supervisor” in respect of the licensed premises to which the application relates. The individual should apply to the local authority in which he is ordinarily resident.

Club licence: a qualifying club may apply for a club certificate in order to be licensed to supply alcohol. In order to qualify, the club must meet certain conditions as to its constitution, membership and governance.

Licence conditions


A premises licence will be subject to certain conditions. These will include mandatory conditions (see below) and any other conditions which may be lawfully imposed by the local authority; these will depend upon the local authority’s licensing policy (see below) and the premises.


Conditions may require Door Supervisors to be employed during certain hours (see: Manned Guarding).


Mandatory conditions

The Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010 (as amended by the Licensing Act 2003 (Mandatory Licensing Conditions) (Amendment) Order 2014)requires four mandatory conditions to be attached to all premises licences and club certificates:


* The responsible person must take all reasonable steps to ensure that staff do not carry out, arrange or participate in any “irresponsible promotions” (as defined) in relation to the premises; this includes the dispensing of alcohol directly by one person into the mouth of another (except in the case of a disability);


* The responsible person shall ensure that free potable water is provided on request to customers where it is reasonably available;


* The premises licence holder or club premises certificate holder must ensure that an age verification policy applies to the premises in relation to the sale or supply of alcohol;


* The responsible person must ensure that any of the following alcoholic drinks is sold for consumption on the premises (other than alcoholic drinks sold in bottles or cans etc.) is available to customers in the following measures ) and that customers are made aware of the availability of these measures:


- beer or cider: ½ pint;
- gin, rum, vodka or whisky: 25 ml or 35 ml; and
- still wine in a glass: 125 ml.

Home Office guidance on the mandatory conditions is available

Under-age sales and age verification policy


The sale of alcohol to persons under 18 is prohibited as elsewhere in the UK. However, there is a due diligence defence available to a charge of the offence if the accused asked the individual for evidence of his age, and the evidence would have convinced a reasonable person.

It is one of the mandatory conditions of an alcohol sales licence that an age verification policy is applied. The age verification policy must require individuals who appear to the responsible person to be under 18 years of age (or such older age as may be specified in the policy) to produce on request, before being served alcohol, identification bearing their photograph, date of birth and a holographic mark.


The age verification policy may be complied with (but is not required to be) by applying the “Challenge 21” scheme (sellers will require proof of identity to any person who appears to be under 21) and accept only recognisable ID such as a passport, photo driving licence or a young persons’ identity proof under the PASS scheme.

Early Morning Alcohol Restriction Orders and Late Night Levy


Licensing Act 2003 (Early Morning Alcohol Restriction Orders) Regulations 2012, SI 2012/2551: frrom 31 October 2012 certain requirements apply in relation to the process for making an early morning alcohol restriction order. The requirements include how a licensing authority must advertise a proposal to make an early morning alcohol restriction order, the form in which an order must be published, and exceptions to an order.

Late Night Levy (Expenses, Exemptions and Reductions) Regulations 2012, SI 2012/2550: from 31 October 2012, these Regulations prescribe matters relating to the expenses a licensing authority may deduct from its late night levy receipts. They also set out the categories of holders of premises licences or club premises certificates which the authority may exempt from, or afford a reduction to, their liability to pay the levy. The levy permits local authorities to introduce a charge payable by those who operate late night licences to contribute towards the costs of additional policing. The charge allows licensing authorities to require those businesses benefiting from the existence of a late night economy in their area to contribute to some of the costs that it causes.

Both early morning alcohol restriction orders and the late night levy apply to premises which are entitled under their licence to sell alcohol between midnight and 6 am. An automatic exemption from the orders only applies to hotel residents using mini-bars or room service and also if the licence only permits alcohol sales after midnight on New Year's Eve.

If an early morning alcohol restriction order is imposed, the licensee cannot give a temporary event notice on any occasion for longer hours than the order permits. The earliest an order could come into force would be June 2013, given the proposed consultation and implementation period of the regulations.

The late night levy would not apply to a temporary event notice. Unlike with early morning alcohol restriction orders, the council cannot limit the area to which the levy applies—if adopted it will apply to every licensed premises in that local authority’s area. A licensing authority will have discretion to exempt a limited category of premises from the levy:


* • hotels;
* • theatres;
* • cinemas;
* • bingo halls;
* • community premises;
* • sports clubs;
* • country village pubs;
* • premises in business improvement districts.

No exemption will apply to:


* restaurants;
* off-sales premises;
* live music venues;
* casinos;
* club premises certificates.

A licensing authority will have discretion to offer a discount up to a maximum of 30% for premises that are part of, or members of, best practice schemes, such as Pubwatch or Best Bar None, subject to specific criteria. Discretionary reductions may also be applied to premises receiving small business rate relief with a rateable value below £12,000.

What's new items:

05/06/2014: Updated Home Office guidance issued
Local authorities have a duty to prevent crime, disorder and public nuisance related to licensed premises, and to uphold public safety and the protection of children. Updated Home Office guidance has been issued to licensing authorities on carrying out their functions under the Licensing Act 2003. It also provides information to magistrates’ courts hearing appeals against licensing decisions. The guidance is also for the benefit of those who run licensed premises, their legal advisers and the general public.

18/07/2013: Government shelves minimum pricing & plans 'tougher action' on irresponsible pubs
The Government has confirmed that it will not press ahead with introducing a minimum unit price for alcohol, although it promised some action on cheap deals and said it plans to take "tougher action" on irresponsible pubs and clubs.

19/09/2012: BrewDog wins licence application case against Leeds City Council
A district judge has accused a licensing authority of bringing “the iron curtain clanging down” by refusing Scottish bar operator BrewDog permission to open a new site, in a ground-breaking case for the trade.

17/08/2012: Free alcohol not licensable
Source: The Publican's Morning Advertiser
Licensees in Farnham, Surrey, have slammed a new “unlicensed” bar called Innsatiable that offers "free" alcohol to the public as "irresponsible".
Legaleze comment: the provision of alcoholic beverages which are genuinely free does not amount to ‘sale by retail’ and is therefore not licensable, so long as customers do not in reality have to purchase another product or service.

Regulated entertainment


Under the Licensing Act 2003, licences are required to provide “regulated entertainment” which is attended by the public, members of clubs or otherwise with a view to profit. “Regulated entertainment includes the performance of a play, exhibition of a film, an indoor sporting event, a boxing or wrestling entertainment, performance of live music, any playing of recorded music or a performance of dance.


The Live Music Act 2012 amends the Licensing Act 2003 by removing local authority licensing requirements for:


* unamplified live music taking place between 8am and 11pm in all venues, subject to the right of a licensing authority to impose conditions about live music following a review of a premises licence or club premises certificate relating to premises authorised to supply alcohol for consumption on the premises;


* amplified live music taking place between 8am and 11pm before audiences of no more than 200 persons on premises authorised to supply alcohol for consumption on the premises, subject to the right of a licensing authority to impose conditions about live music following a review of a premises licence or club premises certificate;


* amplified live music taking place between 8am and 11pm before audiences of no more than 200 persons in workplaces not otherwise licensed under the 2003 Act (or licensed only for the provision of late night refreshment);


* the provision of entertainment facilities.


The Act also widens the licensing exemption for live music integral to a performance of Morris dancing or dancing of a similar type, so that the exemption applies to live or recorded music instead of unamplified live music.

What's new items:

13/12/2014: More deregulation of licensed entertainment

Under the Legislative Reform (Entertainment Licensing) Order 2014 (SI 2014/3253), the provision of some regulated entertainment will no longer need to be authorised under the Licensing Act 2003 from 6 April 2015.

Local authorities, health care providers and or schools

The provision of regulated entertainment by or on behalf of local authorities, health care providers, or schools on their own defined premises will be exempt from entertainment licensing between 08.00-23.00 on the same day, with no audience limit.

Live music in relevant alcohol licensed premises and workplaces

The audience limit for a performance of live amplified music in relevant alcohol licensed premises or in a workplace between 08.00-23.00 on the same day is raised from 200 to 500.

Recorded music in relevant alcohol licensed premises

Any playing of recorded music in relevant alcohol licensed premises will be deregulated (on a conditional basis) when it takes place between 08:00-23:00 on the same day for audiences of up to 500.

Live and recorded music exemptions

Local authorities, health care providers and schools will be exempt from entertainment licensing when making their own defined premises available to third parties for live and recorded music activities between 08:00-23:00 on the same day for audiences of up to 500. Community premises not licensed to supply alcohol will be exempt from entertainment licensing requirements for live and recorded music between 08:00-23:00 on the same day for audiences of up to 500.

Travelling circuses

Travelling circuses will be exempt from entertainment licensing in respect of all descriptions of entertainment, except an exhibition of a film or a boxing or wrestling entertainment, where the entertainment or sport takes place between 08:00-23:00 on the same day, with no audience limit.

Greco-Roman and freestyle wrestling

Greco-Roman and freestyle wrestling will be deregulated between 08:00-23:00 for audiences of up to 1,000 people. 

Incidental film

An exhibition of film that is incidental to another activity is exempt from licensing.

02/07/2013: Licensing Act 2003 (Descriptions of Entertainment) (Amendment) Order 2013
SI 2013/1578 comes into effect on 27 June 2013 and is made under the Licensing Act 2003 s.197(2), Sch 1, para 4.
The Licensing Act 2003 (“the Act”) provides a unified framework for the regulation of the sale of alcohol and other specified activities, including the provision of regulated entertainment. Article 2 of this Order amends the descriptions of regulated entertainment in paragraph 2 of Schedule 1 to the Act so that an authorisation for the entertainment is not required if it takes place in the presence of an audience and  the purpose or one of the purposes is to entertain that audience and:
* in the case of a performance of a play or dance, it takes place between 8am and 11pm on any day before an audience not exceeding 500 people;
* in the case of, an indoor sporting event which takes place between 8am and 11pm on any day before an audience not exceeding 1,000 people.
Notes:
(i) if a performance of dance is “relevant entertainment” within the meaning of paragraph 2A of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 (sexual entertainment), a separate authorisation will be needed;
(i) a contest, exhibition or display which combines boxing or wrestling with one or more martial arts (a “combined fighting sport”) is licensable under the Act as a boxing or wrestling entertainment rather than an indoor sporting event.

17/08/2012: Live Music Act 2012 to come into effect on 1 October 2012
The Live Music Act 2012 is to come into force on 1 October 2012 (Live Music Act (Commencement) Order 2012 (SI 2012/2115)).

Late night refreshment


Late night refreshment is the sale of hot food or drink to the public to consume off or on the premises) between 11pm and 5am.

What’s New items on this topic [go to the What's New page or archive for the full item]:

15/10/2015: Licensing Act changes to regulation of Late Night Refreshment

The provision of late night refreshment involves the supply of hot food or hot drink to members of the public between 11pm and 5am and is regulated under the Licensing Act 2003 (“the 2003 Act”). The Deregulation Act 2015 amended the 2003 Act to enable licensing authorities to exempt the provision of late night refreshment from licensing requirements in certain categories including certain prescribed premises types.

The categories including of prescribed premises include motorway service areas, premises used for the retailing of petrol or derv, certain local authority, school and hospital premises, community premises and licensed premises authorised to sell by retail alcohol for consumption on the premises between the hours of 11pm and 5am.

Temporary events


Anyone who plans on a temporary basis to sell or supply alcohol, provide regulated entertainment or late night refreshment must submit a temporary event notice (“TEN”). Normally, the holder of a personal licence may give up to 50 TENs in a year; other persons may give up to 4.

How to obtain a licence


Licences and certificates are granted by the licensing authorities under the Licensing Act 2003, replacing the licensing justices who regulated the sale and supply of alcohol under the previous legislation. The licensing authority is usually the local authority (i.e. district council, unitary authority or London Borough) for the area in which the premises are situated, or in which the individual applicant for a personal licence is normally resident.

Enquiry should be made with the local authority about the local licensing policy and application forms. It may be possible to apply online to the local authority or via GOV.UK

Cost of a licence: the licence fee is based on the non-domestic rateable value of the premises. The Valuation Office Agency website provides a searchable database of business rate valuations.

An additional fee is payable for large scale events involving more than 5000 people or, in certain cases, where premises exclusively or primarily sell alcohol.

An annual fee is payable to the council to cover costs of monitoring and enforcement.
Application for a licence: an application form must be completed and sent to your local council with the fee. You may also need to send copies of your form (depending on the type of application you are making) to the police and other “responsible authorities”. If your council accepts electronic applications, an online application may be made via the Business Link website.

Tacit consent: it appears that most local authorities apply tacit consent to applications for licences but licensing authorities apply varying criteria and some deny tacit consent applies.
There is a right of appeal to the magistrates court broadly when a licence is refused.

Enforcement

Civil enforcement: A licence may be varied, suspended or revoked by the local authority on an application for review, subject to a right of appeal to the Magistrates' Court.

Criminal enforcement: Licensable activity without authorisation: a person commits an offence if he:
(a) carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or
(b) knowingly allows a licensable activity to be so carried on.
A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding £20,000 or to both. A due diligence defence may be available.

Sale of alcohol to children a person commits an offence if he sells alcohol to an individual aged under 18. A due diligence defence may be available if the person believed that the individual was aged 18 or over, and either he had taken all reasonable steps to establish the individual’s age, or nobody could reasonably have suspected from the individual’s appearance that he was aged under 18. For this purpose a person is treated as having taken all reasonable steps to establish an individual’s age if he asked the individual for evidence of his age and the evidence would have convinced a reasonable person.


A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Legaleze comment: in order to set up such a defence successfully, it will be necessary to prove to the court that all reasonable steps to avoid commission of the offence were taken. This will typically require strict adherence to the age verification policy, a staff manual, regular staff training, the keeping of an incidents/refusals book etc. Contact us for advice about Licensing Act compliance anbd due diligence.

Further information
For further information visit:
* the GOV.UK page on alcohol licensing;
* the British Beer and Pub Association;
* the Nationwide Caterers Association which publishes guide "Starting up a Pub/Wine Bar"

Northern Ireland


The Licensing (Northern Ireland) Order 1996 (1996 No. 3158 (N.I. 22)) regulates alcohol sales in Northern Ireland. Any person selling alcohol must hold a licence authorising him to do so in the course of a business carried on in premises specified in the licence.

There are 12 types of premises which may be licensed to sell alcohol to the public. There are different conditions attached to each type of premises. The premises include:
* premises in which the business carried on under the licence is the business of selling intoxicating liquor by retail for consumption either in or off the premises (i.e. public houses)
* premises in which the business carried on under the licence is the business of selling intoxicating liquor by retail for consumption off the premises (i.e. off-licences)
* hotels, guest houses, restaurants, conference centres, higher education institutions
* places of public entertainment (theatres, ballrooms, race tracks)
* refreshment rooms in public transport premises (railway or bus stations, airports and harbours).

As in the other countries of the UK, sale of alcohol to persons under 18 is prohibited.
For further information, visit nidirect and search for licenses premises and clubs.


What's new item:


11/12/2012: Irresponsible drinks promotions ban in NI
T he Licensing (Irresponsible Drinks Promotions) Regulations (Northern Ireland) 2012 (SR 2012/435) come into force on 1 January 2013 and are made under the Licensing (Northern Ireland) Order 1996 (SI 1996/3158, art 57A(1)–(3)). The Regulations prohibit the holder of a licence or their agent from carrying out irresponsible drinks promotions (involving the supply of unlimited amounts of intoxicating liquor for a fixed charge) (including any charge for entry to the premises)) on or in connection with the licensed premises.
Similar rules apply to clubs under the Registration of Clubs (Irresponsible Drinks Promotions) Regulations (Northern Ireland) 2012.


10/12/2012: NI Government gives new powers for police to close pubs and clubs
From 10 December the new legislation will allow a Senior Police Officer to close specific licensed premises or a private members club where disorder is occurring on the premises or in the vicinity. The introduction of these new closure powers will also enable a court to order licensed premises or private members clubs in an area of actual or expected disorder to close for up to 24 hours.

Scotland


Alcohol sale licensing in Scotland is regulated by the Licensing (Scotland) Act 2005 and is now administered by local authorities. Each local authority has a Licensing Board; a list of these Licensing Boards can be found at: www.personallicencescotland.com

Two types of licence are required to sell alcohol in Scotland: a licence for the premise and an individual licence for the person in charge of the licensed premise. This license is known as a Scottish alcohol license or a Scottish personal license and allows the holder to sell or authorise the sale of alcohol under a Scottish premise license. The Scottish alcohol license holder must also be named on the premise license as the premises manager and be in day to day control of the licensed premise.

To obtain a Scottish alcohol license the individual must undertake training on the Scottish Licensing Act 2009 and must apply to their Local Licensing Board for a personal license (Scottish alcohol license).

If the premise is to sell food (e.g. in a public house) then the Premises Manager is expected to also hold a Food Hygiene Certificate.

All staff are required to hold either a certificate of training or undertake a minimum of two hours training on the new Licensing Act 2005. A record of that training must also be kept at the premises.

With effect from 1 October 201, a Scottish licence holder must operate a Challenge 25 policy and display posters requesting age verification.
challenge 25 policy

For further information, search on alcohol licensing at the Scottish Government

What's new item:

01/05/2018: Alcohol (Minimum Price per Unit) (Scotland) Order 2018

The Alcohol (Minimum Price per Unit) (Scotland) Order 2018 [SSI 2018/135] came into force on 1 May 2018. The Order specifies the minimum price per unit for alcohol and relevant labelling for licensing conditions in Scotland. The Order specifies the minimum price per unit for alcohol (50p) and labelling provisions.

[Page updated: 01/05/2018]

 

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