Updated as at 30 October 2020

NOTE: As of Monday 2 November, the hospitality sector in Scotland will be subject to the Scottish Government's new five-tier alert system of COVID-19 regulationsPlease see our update for specific information regarding these restrictions.

The coronavirus pandemic continues to present significant challenges for those operating in the licensed trade in Scotland. For those who are licence-holders, attention continues to turn to the possibility of offering home delivery services for food and/or alcohol. This has been heightened by the pressures social distancing places on capacity in licensed premises, and the 10pm “curfew”. 

This update covers questions that are being asked as regards the Scottish Government’s recent restrictions that came into effect on 25 September 2020.

Questions also arise as regards ensuring compliance with the Licensing (Scotland) Act 2005, and the administrative process where new licences have been applied for, or acquisitions of licensed premises are conditional on the transfer of a licence.

What are the new "curfew" restrictions?

The Scottish Government has amended the Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020. These changes affect restaurants, bars, cafes, public houses and hotels (in which food or drink is sold for consumption on the premises). What that means is that as of 25 September 2020:

  • Premises must close between 10pm and 5am. This is problematic for pre-existing reservations that would have been expected to last beyond 10pm. It will be necessary to contact those customers and seek to make alternative arrangements.
  • There is no allowance for “drinking up” time. The Scottish Government is very clear in its guidance that these are not normal times and the 10pm closing time is to be strictly enforced.
  • Service of food and drink must be by way of table service. This should not have any significant practical effect. Due to the statutory guidance, premises should already be providing table service only. This amendment simply means it is now a legal requirement, and a failure to comply will carry consequences.

Are there any exceptions to the 10pm curfew for food/drink?

There are some very limited exceptions, the most notable being:

  • room service (for hotels);
  • by delivery (although it will be important to comply with the alcohol and delivery regulations); and
  • when collected in a manner that does not involve a customer leaving their vehicle (i.e. drive-thru).

What are the penalties for failure to comply?

Breaching the regulations may result in a prohibition notice being issued (for the purposes of prevention future contravention) or a fine of up to £10,000.

I have recently applied for a new licence, what do I do next?

As it stands, there is no consistent strategy across the different Licensing Boards to deal with new applications. However, many Licensing Boards are now looking at ways in which to convene virtual hearings. Some Boards may attempt to use new powers to hold hearings by telephone, written representations or video conference.

If you have not heard from a Board in advance of a scheduled hearing, you should contact them directly.

I have recently applied for a major variation or transfer, what do I do next?

For matters that require a Board Hearing, the above applies. For matters that can be dealt with under delegated powers, some of the Licensing Boards have indicated that these will continue to be dealt with.

However, many Boards are still adjusting to working from home, or working with a reduced number of staff, and processing times will likely be longer. This is plainly a difficult issue where acquisitions (entered into before the lockdown) are conditional on licences being transferred. In these circumstances, we are being told that processing times will be longer than normal.

It would be prudent to check what the terms of the deal require.

Can my licensed premises offer home deliveries for food and alcohol, even if we are required to close to the public?

Many licensed premises have already been quick to take advantage of the flexibility permitted by the Coronavirus (Scotland) Act 2020; if food is usually sold on the premises but the operating plan does not expressly mention that food may be taken away or delivered, then food deliveries and takeaways are to be implied into the operating plan. The ability to offer deliveries (in circumstances where the premises licence was otherwise silent) has been important in supporting the licensed trade. It is also important because the 10pm curfew does not affect deliveries.

However, in relation to alcohol, premises are only permitted to deliver alcohol if off-sales permission is currently included in their operating plan. If you do not have off-sales permission, the UK Government has not relaxed the rules around the sale of alcohol and you would be committing a criminal offence by delivering alcohol. There are specific legal requirements to adhere to when delivering alcohol, and specific statutory timings to adhere to in terms of late night deliveries of food and alcohol, which we would be happy to discuss with you.

What do I do if my manager is absent for an extended period?

Licensing Boards appear to be ready to take a 'pragmatic' approach to the need to notify them if your Designated Premises Manager (DPM) is unable to act through illness (and a pragmatic approach to notification requirements and statutory deadlines in more general terms). A few Licensing Boards have said that if your DPM is only going to be incapacitated and unable to act for a few weeks, then they will treat this as if the DPM were on holiday, and no notification will be required.

If your DPM is going to be absent for an extended period (i.e. longer than three weeks), then it would be prudent to notify the Licensing Board as you otherwise would. The normal statutory period for making such a notification (if it becomes necessary) has been extended from seven to 28 days. 

To avoid any breach of licensing conditions, a variation application to change the DPM must normally follow within six weeks. However, that deadline has been extended to three months.

If your premises have shut down due to the UK and Scottish governments requiring closure, and your DPM is no longer employed by you, it seems unlikely notification would be required until such a time as your premises have re-opened.

What happens if I continue to trade despite the lockdown?

The UK and Scottish governments have taken steps to introduce Health Protection Measures as well as Additional Temporary Measures to counter the increasing COVID-19 infection rates. Those measures have significant impacts on all restaurants, pubs and cafes, in particular the hours during which premises can be open and what they are permitted to sell. In Scotland, these measures have been given the force of law and are backed by the threat of criminal sanctions for non-compliance. Rules can also differ depending on the part of the country in which the premises are located. Continuing to trade in circumstances that are a contravention of the various health protection measures could result in you committing a criminal offence.

If you have further questions about the health and safety considerations for retailers and businesses that remain open, then read our health and safety update or contact Kevin Clancy.

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