One of the sectors most affected by the current COVID-19 pandemic is food and drink with premises ordered to close following government announcements made on 20th and 23rd March.
Where is closed?
From close of trade on 23rd March the following food and drink premises must be closed:
• Public Houses;
• Bars and nightclubs, including bars in hotels or members’ clubs
Retail premises must also remain closed.
The government guidance has been updated as at 25th March to clarify the exceptions to the closures, these are as follows:
• Restaurants, cafes and public houses:
– Food delivery and takeaway including hot or cold food for collection or delivery.
– Supermarkets and other food shops
– Petrol stations
– Corner shops and newsagents
– Off-licences and licenced shops selling alcohol, including those within breweries
– Storage and distribution facilities, including delivery drop off points
No premises can remain open for consumption of food or drink on the premises, all food etc. must be taken from the premises and consumed at home. These measured will be reviewed in 3 weeks’ time. Planning regulations have been relaxed so that premises which do not currently have permission to offer deliveries or takeaways can do so. However, it is not yet clear whether (or to what extent) alcohol licensing regulations will be relaxed. At present, the UK Government guidance states that “Those venues offering takeaway or delivery services must not include alcoholic beverages in this list if their licence does not already permit.”
Police Scotland have reported that a vast majority of licensed premises such as pubs, restaurants and clubs have complied with the Government mandated shut-down. However, they have reported a “handful” of premises have remained open. This week Police Scotland has confirmed that they will be enacting emergency closure orders where licensed premises do not close. These premises will also be reported to the relevant Licensing Board. An emergency closure order lasts for 24hrs but can be extended. In this article we highlight some key concerns for operators who are looking to carry out deliveries at this challenging time.
Many unlicensed and licensed food-led premises, such as cafes and takeaways, have moved to a delivery-only service in order to continue to serve the public and maintain income. However, many of those licensed premises which are carrying out deliveries are now having to tackle the issue of delivering alcohol for the first time, which carries with it a number of questions.
1. I have a Premises Licence, can I make deliveries of alcohol?
Yes, but only if you already have off-sales. If you are only licensed for on-sales, you cannot make deliveries.
While there is an argument that if your Premises Licence includes off-sales then you automatically have the right to make deliveries of alcohol, some Licensing Boards also require the Operating Plan to explicitly include deliveries of alcohol (and food) as an activity permitted under the Premises Licence. Some also require that alcohol can only be delivered with a meal.
For premises in areas where the Licensing Board expects Operating Plans to refer to alcohol or food deliveries; an operator wishing to commence making deliveries whose Premises Licence does not specifically allow them to do so, has to submit a major variation application. At this time, it is unclear whether such Licensing Boards will take enforcement action against such premises making deliveries of alcohol whose Operating Plans don’t include alcohol (or food) deliveries.
2. Do I need to follow any rules when delivering alcohol?
Yes, legislation sets out certain procedures that need to be followed when delivering alcohol:
a. Keep records
These should be in the form of:
i. Day book kept on the premises; and
ii. Delivery book or Invoice
These records need to show:
i. the quantity, description and price of the alcohol; and
ii. details of person receiving the delivery
Records must be available for inspection by a Police Officer or Licensing Standards Officer.
b. Only deliver to the person named on the order
c. No deliveries between midnight and 6am
Alcohol may be ordered and delivered outwith off-sales licensed hours which are 10am-10pm but they cannot be made between midnight and 6am. Payment must be made within licensed hours. Please check your Operating Plan as some premises may have different off-sales hours within the 10am-10pm window.
d. No deliveries to or by under 18s
Remember to always Challenge 25 where you suspect the person accepting the delivery may be under 25. Any failed deliveries because the person accepting the delivery was unable to prove their age should be logged in the refusals book. If you have delivery drivers who are under 18, they cannot deliver alcohol. Operators should also check whether their Licensing Board has any additional Local Conditions in place regarding alcohol deliveries. It is an offence to not comply with the mandatory and local conditions and regulations relating to deliveries.
The four main things to remember before making deliveries of alcohol are:
1. You are licensed for off-sales;
2. Comply with the terms and conditions of your Premises Licence;
3. Comply with licensing legislation; and
4. Comply with government guidance.
If you have any questions or concerns, or require any advice, please contact Zoe Calderwood or a member of the Blackadders Commercial Property Team to discuss.
Zoe Calderwood, Senior Solicitor
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