Sarah Clover provides a guide to licensees on the practical effect of the Coronavirus (Business Closure) Regulations that came into force this morning.
Licensee COVID-19 Frequently Asked Question
If I stay open, will I be in breach of my premises licence (Licensing Act 2003)?
This has now been superseded by the Government’s requirement for all licensed premises to stay closed, given on 20 March 2020. This is because of a Government order, which would be enforced by emergency powers, not through your licence. This is an entirely unforeseen set of circumstances. No premises licence will have a condition upon it requiring it to close in the event of a global pandemic, or any equivalent requirement. It is conceivable that a Licensing Authority would consider reviewing and revoking a licence for refusal to comply with the Government order, although Local Authorities are having difficulty in convening licensing hearings at this time.
What about the licensing objective of “promotion of public safety”? Could I be in breach of that?
This is arguable. The Licensing objective of “promoting public safety” never had these circumstances concerning exposure to a global pandemic in mind. The licensing objective is specifically not meant to be the same thing as “promoting public health”. You can find details about what public safety means in the Secretary of State’s S.182 Guidance [ April 2018] at paragraphs 2.7 – 2.14.
It is also important to understand that there is a difference between licensing objectives ( best practice) which are set out in the Licensing Act 2003 and apply to everybody, and a licence condition written onto an individual premises licence. Breaching a licensing objective is inadvisable, and might result in intervention from the Responsible Authorities, but breaching a condition on the licence is an offence.
The normal action for breaching a licensing objective, such as promoting public health would be to write to premises to warn them about their actions, and then eventually, if justified, bring a review. It is very unlikely that any Responsible Authority would take this action at this time, and very difficult for a Licensing Authority to convene a hearing to deal with it if they did. It is more likely that a Responsible Authority would remember the actions of irresponsible premises at a time like this, and raise it in the future if there were any further irresponsible actions, to confirm their case. In an extreme case they might try to close the premises down under Licensing Act 2003 powers, if the premises were flagrantly breaching the Government’s orders.
I was planning a festival or outdoor event. What shall I do?
Under Government guidance as it stood before Friday 20 March, this falls under the category of unnecessary social contact, and most were being called off in the current circumstances in any event.
If you have conditions on your licence that specify compliance with event management plans, including involvement of national emergency services then you need to take into account Government guidance given on 16 March that the Government has adopted powers to shut down mass gatherings and will not support them with emergency workers. If your conditions or event management plans require you to involve emergency services in a particular way, then it is likely that you would be unable to comply with those conditions, as the emergency workers cannot cooperate with you.
If you have conditions on your licence which specify that the event will only take place on specific days or within a specific window of time, you will need to discuss this with your local Council ( Licensing Department). Some conditions will also specify that preparation for the event, in the form of event management plans, or SAG meetings etc should take place by a certain time. If these conditions would no longer be applicable in your new circumstances, for example because you will defer your event to later in the year, then this might technically constitute a breach of a licence condition. It might be possible to vary the licence, either as a minor variation or a full variation, but there may be fees applicable. You should discuss your specific circumstances with an adviser, or the Council Licensing Department to see what might be possible for you.
What happens if I breach one of my licence conditions, but I couldn’t help it?
Section 136 of the Licensing Act 2003 says that it is an offence to conduct licensable activities without complying with the terms and conditions of your licence. Section 139 of the Act provides a defence of “due diligence”, which means that if someone breaches their licence and commits an offence, they have a defence if it happened because of a mistake, or reliance on information given, or to an act or omission by another person, or to some other cause beyond their control. It could certainly be argued that COVID 19 and its consequences are beyond anyone’s control. The due diligence defence does also say, however, that the person in question must take all “reasonable precautions” and “exercise all due diligence” to avoid committing the offence. This means that everyone must do their best not to breach their conditions, but if they cannot help it, then they will probably have a defence. Examples might be getting the right number of SIA door staff, or having a personal licence holder on the premises at all times, or someone who can download CCTV at all times the premises are open.
It is very likely that Responsible Authorities will take a sensible and pragmatic approach in these difficult times, and will not be pedantic or insist on compliance with all conditions when it is clearly very difficult to do so, through no fault of the licensee. Responsible Authorities do not have to take enforcement action – it is a matter for their discretion. Enforcement and prosecution must be reasonable and proportionate, and it must be in the public interest to do so. Responsible Authorities (including Licensing Officers and Police Officers) will be taking this into account when looking at individual circumstances.
What if my Designated Premises Supervisor can’t be at the premises because of COVID-19?
It is not a requirement in any circumstances for a DPS to be physically present at the premises, unless there is a specific condition on the premises licence requiring the DPS to be present at all times. Such a condition is unusual. The role of a DPS is to be the point of contact with the Responsible Authorities and to have day to day management of the premises and a good awareness of what is happening there. Some elements of management and awareness can be conducted remotely. If the DPS is unable to fulfil their role for a short time, this is not an immediate offence. It is important to have a written record of who is authorised at the premises to supply alcohol. If your DPS will be away long term, or you lose contact, then you should consider a variation of the DPS, through an application to the Council.
Can I provide take-aways and home deliveries?
Yes, you can. The Government has specifically envisaged this, and confirmed that any planning restrictions (such as use class) that would normally prevent the use of premises for takeaways will be relaxed. A similar attitude is likely to be applied in licensing, although there was no formal announcement. Takeaways would fall under the licensable activity of “providing late night refreshment” which will occur if:
“at any time between the hours of 11.00 p.m. and 5.00 a.m., he supplies hot food or hot drink to members of the public, or a section of the public, on or from any premises, whether for consumption on or off the premises”.
Your licence will specify if you are licensed for the supply of alcohol or the supply of late night refreshment, for consumption on or off the premises or both. If your licence specifies “for consumption on the premises only”, this is the part that is likely to be relaxed by the Council ( Licensing Authority) during this emergency time, but you should check, if you can, what the Licensing Department’s attitude will be. It will help if you can explain clearly what you want to do, and any additional safeguards that you will need to take. If you plan to supply alcohol as home deliveries, you must be very careful to observe age checks to ensure that no under-age deliveries take place. Anyone who is not a personal licence holder will need to be authorised to supply alcohol by a personal licence holder, whether on or off the premises.
There are no restrictions of any type on the delivery of cold soft drinks and cold food. The usual restrictions on the supply of hot food and hot drinks relate to supplies for consumption on or off the licensed premises between the hours of 23:00 and 05:00 only. There are no restrictions outside of those times. If you have conditions on your licence in relation to supplying hot food and hot drinks between 23:00 and 05:00, it is likely that these will be relaxed and not enforced during this emergency period, but this will depend upon the particular Council involved. It is a good idea to contact the Licensing Department and ask for their response to your specific proposal at this time.
You will need to think very carefully about providing PPE ( personal protective equipment) to your delivery staff, to protect them and the people taking the products delivered. Door to door deliveries must by carefully managed to restrict the spread of the virus through that means. Protective equipment is available.
Do I still have to pay my annual licence fee?
There is no specific exemption on offer at this time to allow you to avoid paying your annual licence fee. The Council’s power if you fail to pay your annual fee is to suspend the licence. They would reinstate it in any event once the outstanding annual fee is paid. Councils have the power to pursue unpaid fees as a civil debt. It seems unlikely that Councils would take the steps of suspending licences or suing licensees in these extraordinary times, but that will depend on your individual Council, and you might consider discussing it with your Licensing Department to explain your situation.
I served a Temporary Event Notice ( TEN) but now the event cannot go ahead. What shall I do?
If you want to maintain your available number of TENs for the rest of the year, you could cancel the one/s that you cannot proceed with now. There is no provision for the return of the £21 fee that you paid.