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Coronavirus and licensing: FAQs

Our Licensing teams both in England and Wales and Scotland have answered some key questions on the uncertainty and disruption brought by COVID-19 and the potential impact on your licence.

Please note that this article is of relevance to all licensed premises and where the law varies in England & Wales and Scotland, we have made this clear.

Q: After the announcement on 16 March to avoid pubs and clubs, do we legally need to close?

ENGLAND, WALES & SCOTLAND

At this stage, there is no legal mandate to force the closure of licensed premises. The Prime Minister has advised people to avoid pubs and clubs which may have the same practical effect in that you may be open when there are no customers.

Q: What does this mean for my insurance policy?

ENGLAND, WALES & SCOTLAND

We are aware of a large number of different policies so there is no “one-fits-all” answer on this. It is likely that your policy does not cover you for a voluntary closure but you must review the terms of your own policy and contact your insurance provider immediately. The position is changing rapidly so further advice on this may follow.

Q: We are about to complete on an acquisition which is conditional on the grant of a licence – what happens now?

ENGLAND, WALES & SCOTLAND

The reality is that decisions may be delayed and all parties to contractual matters will need to be sensible and flexible in these unprecedented times. A contract which is tied to a licence being granted may not be crystalised where the decision on the application is delayed. Parties need to speak to each other and their representatives and find a sensible, pragmatic solution. This is especially so now that licensing hearings are being cancelled across the country.

Q: What about payment of Sky and BT sports whilst there is no football on?

ENGLAND, WALES & SCOTLAND

That is a contractual issue with your providers. Unless or until they make any announcements as to what they propose to do to help customers likely to be experiencing cash-flow problems, we cannot anticipate what, if any, support they would look to give. However, in times where cash-flow is likely to be strained, then you may want to speak to them as soon as possible if you feel that this is going to be an issue. This is the same for any licence fee you pay, such as PRS/PPL etc.

We have just been informed that SKY have cancelled all commercial contracts from 14/3/20. Please see:

https://skyforbusiness.sky.com/sb/portal/business/uk/campaigns/update

Q: Will the Government announce a full shutdown of all licensed premises?

ENGLAND, WALES & SCOTLAND

We will hear about this at the same time as you do. We will endeavour to react and offer the best advice we can on a daily, ongoing basis. Our licensing solicitors are still working and available to discuss all of your concerns and we will continue to support our clients through this difficult period.

Q: We have taken the decision to close our premises now. What happens to the licence?

SCOTLAND

In our view, nothing. Whilst the Act does contain provisions about licences ceasing to have effect where alcohol sales cease, that wording was clearly not drafted with such unprecedented measures in mind and in our view the purpose of those provisions is to strike at a permanent closure where the use of the premises changes. If you close voluntarily under the current circumstances, we say your licence is safe. In addition, should the Government move to a mandatory close down of all premises, your licence would remain in place for when the close down period ends.

ENGLAND & WALES

In our view, nothing. Your premises licence continues to have effect as there is no provision for it to lapse simply because you choose not to open.

Q: We have chosen to stay open but this morning my DPM/DPS has called in sick and has to self-isolate. Do I need to do a minor variation to name a new manager?

SCOTLAND

In our view, no. The situation is no different to a DPM taking a holiday. If a person were off sick long term, then a decision might have to be made to replace them. At this stage our view is that you can leave the DPM on the licence.

ENGLAND & WALES

Our view is that in circumstances where someone is self-isolating because of concerns about possible Covid-19 symptoms (7 days at home) no change is required.  In anticipation of self-isolation applying to a number of DPS’s we would advise that DPS’s make sure, now, that their letter of authority is current and up to date to allow deputies, assistants and shift manager’s to operate the business in the DPS’ absence.

Where someone is isolating with symptoms then we think that once someone has been out of the office for, say, 3 weeks, consideration should be given to changing them as Designated Premises Supervisor (particularly if it looks like they will remain out of the business for some further time).

We don’t advise clients to change a DPS when someone is on holiday for a couple of weeks so we cannot see that that timeframe need change.

Q: My business is cash driven and closure means likely insolvency. Will I lose my licence?

SCOTLAND

Insolvency does not affect personal licences. Your personal licence is safe if you are personally insolvent e.g. if you are sequestrated. The premises licence is another matter. If the premises licence is held by a person or entity which experiences an insolvency event then the 2005 Act requires the appointed insolvency practitioner to apply to transfer the licence within 28 days or the licence lapses. We are advising insolvency practitioners on these issues separately to make sure as many people as possible know what steps are needed to save a licence.

ENGLAND & WALES

Insolvency does not affect personal licences, so your personal licence is safe. If the premises licence is held by a person or entity which experiences an insolvency event then the licence lapses immediately on insolvency. We are advising insolvency practitioners on these issues separately to make sure as many people as possible know what steps are needed to reinstate a licence. If you are considering insolvency, remember that the premises licence is an asset and therefore you will want to protect it.

Q: I have an application pending – what happens now?

SCOTLAND

Local authorities are likely to be severely under resourced and you can expect delay even if the application is something like a minor variation which might be uncontentious. We are speaking with Scottish Government and various bodies to see if licensing boards can move to make all decisions under delegated powers – without having to have a hearing – and we will advise as soon as we can. Licensing board hearings are now being cancelled across Scotland.

ENGLAND & WALES

Local authorities are likely to be severely under resourced and you can expect delay even if the application is something like a minor variation which might be uncontentious. For Minor variations, those that are not determined five working days after the end of the consultation period are deemed refused in law-albeit we would hope that a pragmatic approach is taken to such issues where they are caused by enforced closures or lack of staff. In relation to other applications submitted, those that are deemed to have immediate effect, such as transfers and DPS variations should be Ok. Those requiring a hearing may take a lot longer to be determined, although we cannot see anything that should prevent those applications being made in the first place.

Q: We run a bar and restaurant. We have had calls about home deliveries, is this allowed?

SCOTLAND

In our view, an off sale licence is of itself explicit permission to allow home deliveries of alcohol. Many licences have explicit wording which also allow for home deliveries of food, and if your licence has this, then you are certainly good to go. Many licensing boards take the view that home deliveries of food need to be listed as a separate activity on the licence which can only be added by way of a major variation. In these unprecedented times we find it difficult to imagine that a restaurant delivering food to people who are self-isolating and in need of sustenance would be challenged if the wording on the licence was absent and are actively speaking with the Scottish Government and other bodies to agree a national relaxation on this bespoke issue. We will update as soon as we can.

ENGLAND & WALES

Sale of hot food and hot drink is not licensable except between 11pm and 5am and as such, there is nothing, licensing wise, to prevent you from offering a delivery service between 5am and 11pm. Lots of licences allow for late night refreshment to extend these times, but ensue that if your licence permits this, it does so for deliveries outside the premises.

Delivering alcohol, however, requires you to be licensed for off-sales. You will also need to check that your conditions do not restrict you from doing so, otherwise technically you would need to vary your licence. If you have off-sales, and nothing preventing home delivery, then so long as you comply with the hours on your licence and any relevant conditions, such as ‘Challenge 21/25’ policies.

Q: We run a grocery shop. Our elderly customers have asked us to open early and give them a chance to shop. I have an off sale licence from 10am to 10pm. What is the position?

SCOTLAND

There is no doubt that you can only sell alcohol during your licensed hours so you must stick to those times. In relation to general opening to allow groceries, in many cases a licence will contain wording such as “the premises may open from 6am to allow for general retail” or similar. If your licence is silent on this, then some licensing boards take the view that you cannot trade prior to your licensed hours because the licence will not allow it and this can only be added by way of a major variation. However, as with the last question, in these unprecedented times we find it difficult to imagine that a supermarket or local shop opening at 6am to sell general groceries to vulnerable people would be challenged if the wording on the licence was absent but that being said we are speaking with Scottish Government and other bodies to agree a blanket relaxation of this point.

ENGLAND & WALES

There is no doubt that you can only sell alcohol during your licensed hours so you must stick to those times. In relation to general opening to allow groceries, in many cases a licence will restrict hours of opening to the same hours for sales of alcohol. However, in these unprecedented times we find it difficult to imagine that a supermarket or local shop opening at 6am to sell general groceries would be challenged if the wording on the licence did not technically allow it, so long as sales of alcohol were only done in the hours permitted. It may even be the case that the Government recognises that shops opening early, especially to serve at risk elements of the community, should be able to sell all products, including alcohol, but we cannot recommend you do so unless there is such a statement.

Q: I have to pay my annual licence fee and Late Night Levy next month. Do I get any dispensation if I cannot open for a period of time?

ENGLAND & WALES

Unfortunately, the payment of the fees are required otherwise your premises licence can be suspended. It may be that local authorities may be willing to wait for payment until such time as you are trading again, but I doubt there will be any pro-rating of the fee. In addition,  you will want to ensure that if you do decide not to pay the fees because of cash-flow issues until you know when you are re-opening, you do not find the council has suspended your licence in the meantime. Remember, council’s will be understaffed and you may not find there is anyone to speak to. Therefore whilst we cannot see that authorities would prosecute in the circumstances, if you are notified that your licence is suspended, they may expect you to close until it is paid.

SCOTLAND

All licensing fees in Scotland fall on 1 October each year so this is not presently an issue. There is no Late Night Levy or similar arrangement in Scotland so this does not apply.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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