Rules for resisting

You have doubtless heard of the expression "by the book". I think it was invented by the police to signify that something had been done in accordance with a fixed set of written rules to which they could immediately refer.

This is beginning to happen with the new licensing system. Locally, the police and some local authorities are setting out a supplementary written system of rules with which they expect licensees to comply. This is not actually in the Licensing Act, or the regulations, or even the Guidance. But it is something they think is good practice and should be enforced as if it is the law.

One such example is the "requirement" that the designated premises supervisor (DPS) should give a written delegation to all staff allowing them to sell alcohol. This was in fact fed back to me the other day as a legal obligation — failure to do so would be a breach of the Act.

This surprised me, because in that example the DPS was a general manager in charge of five personal licence-holders, each of whom had the authority themselves to sell or delegate the sale of alcohol. They did not need any delegated powers from the DPS, who had no legal requirement to give it. Yet he had been told by the police that they would need "proof" of this written authority.

In fact, in trying to head off the idea that a personal licence holder had to be present for every sale, the Department for Culture, Media & Sport sent a letter explaining the legal position. Although it recommended, among other things, that the actual delegation should be signified in some way in writing, it stopped short of saying it was a legal requirement, because it isn't. A clear verbal delegation is just as effective.

Q&A​

Signs on pavement​

Q. In this town, many local retailers seem to put advertising signs on the pavement or roadway, but I have been told that it is illegal for me to do the same to advertise the pub and its food. Is this correct?

A. There is no difference in this respect between yourself and any other retailer, but placing this type of sign depends very much on the attitude of your local council.

In fact, there are two issues raised if you try to locate an advertising board. One is obstruction of the highway, which can be a criminal offence and would, therefore, involve police action. The other, more common, problem is that of obtaining local authority planning permission for the erection of the sign.

Local authorities have power to control not only the types of buildings erected or changed, but also the signs, notices and illuminations which are used on the exterior of the premises and in the highway.

Under the Highways Act, they can also operate a licensing system for items placed on the street, which means you will have to pay an annual fee for the space that the sign occupies.

Public houses are among the businesses needing to attract passing trade, but several of them have run into trouble by erecting signs without first obtaining the necessary planning permission. Local authorities do have the power of veto in this area, and can forbid erection of signs that they consider an obstruction or potentially hazardous, or order their removal if a sign has been erected without consent.

Non-compliance with a council instruction could render the offender liable to court action —and in the case of signs, notices and equipment such as satellite dishes, a fine can be imposed for each day the offending article remains in place.

As with all planning matters, there is an appeals procedure

to the Department of the Environment for any person who feels aggrieved at their council's decision.

Your questions​

Drinks for staff​

Q. Under the new law, can I, as the new owner of these premises, still allow staff to take drinks after the end of the period stated on our premises licence, as long as they do not pay for them?

A. The 1964 Act was explicit about the concession for staff drinks, which were supplied "at the expense of the employer or person carrying on the business..." There is no similar concession in the 2003 Act, but it appears that it is not necessary.

Supplying alcohol as a gift is not a "licensable activity" under the new law, which only covers the sale by retail of alcohol. So where a clear gift is established, the terms and conditions of the premises licence will not apply to set fixed-time limits. It seems perfectly in order to continue with this long-established practice.

However, the situation could be different if an employed manager sought to buy drinks for his staff from the company out of his own pocket, because there could be a sale in such circumstances. All companies should have an express policy on this, to avoid any doubt.

Soliciting advice​

Q. I have been asked whether serving prostitutes continues to be an offence, and could you lose your premises licence if you were convicted?

A. The answer is no and no. The offence of allowing known prostitutes to remain on licensed premises has not been repeated in the Licensing Act 2003 and, therefore, serving them is no longer an offence.

However, a licence could be called in for review if it was alleged that the premises were being used for soliciting or other unsavoury activities on which the licensing authority received representations. But there would have to be a specific complaint in order for this to be done, because there would not be an offence involving prosecution.