Current tier four regulations for hospitality businesses

The current tier four regulations will be in place until at least until mid-February, but in reality are likely to be with us for some considerable time thereafter. We have also been made aware that government advice to local authorities is to ensure that any businesses caught breaching the rules are to be firmly dealt with either by way of fines or enforcement action, as opposed to the more relaxed approach many have taken to date.

As such, this note sets out what is restricted, what is permitted, and where there are ‘grey areas’.

Restricted activities

Any business selling food or drink for consumption on the premises must close and cease selling food or drink for consumption therein. There is a wide definition of the premises, which includes any external areas and also any areas that customers might otherwise habitually use for consumption.

There are limited exemptions for:

• Food and drink provided to hotel/ other accommodation guests as part of room service. Note, there is no exemption to open up dining rooms for such guests.
• Motorway services, ports and airports.

If you have a larger business that includes within it a restricted business, such as a café within a larger grocery shop, you are still entitled to open the grocery shop, but not the cafe.

Permitted activities

Certain businesses are permitted to open. These are:

• food retailers, including food markets, supermarkets, convenience stores and corner shops, and
• off licences and licensed shops selling alcohol (including breweries)

However, whilst this may allow some otherwise closed businesses to re-purpose themselves to fit within one of the above categories, we would caution that there may be restrictions that need to be considered. Most importantly, the law relating to off sales of alcohol by hospitality businesses has been tightened since the last lockdown.

The current position is:

Alcohol

Any takeaway sales of alcohol can be made by delivery only, ordered on line, via telephone or post.

No “over the counter” sales of alcohol can be made whatsoever. This is a significant change to the previous iteration of the rules where alcohol could be sold over the counter between 5am and 11pm.

Can I re-open as an off-licence or grocery store selling alcohol?

Because the above restriction does not apply to the categories of businesses permitted to open (supermarkets, off-licences and the like), the question we are being asked is whether a hospitality business, such as a pub or restaurant can re-purpose itself to operate as a permitted business such as an off-licence or convenience store. Whilst there is nothing to prevent a business re-purposing, the message we are getting is that local authorities appear to be taking a strict view on how businesses go about doing so.

The situation appears to be that changes such as this will require the operators to ensure that premises licence conditions and plans are not breached and that anyone opening in this manner is not simply looking at a way of selling alcohol that will then be consumed away from the premises in public places where there may well be breaches of the restrictions on gatherings. Whilst you can argue that this is more likely to happen from people buying in bulk from supermarkets, the difference is that their licence was designed with off-sales in mind and therefore may be subject to other compliance restrictions.

As such, if you are looking to make such changes, we suggest that you inform the local authority of what you are intending to do in advance. If necessary you will be asked to make a variation to your premises licence to achieve this, although one would hope that most local authorities would accept minor variations for a short-term change. It should be possible to agree that the changes fall away once your premises falls out of tier 4 (or tier 3 if you would prefer- probably giving the local authority some advance notice). It is more likely that the authority will look favourably on any proposal where there is a good management plan in place and measures proposed that will not allow for customers to simply buy a pint in an open container and take it away with them.

Can I sell food and drink as a takeaway without alcohol?

Yes you can. Hospitality premises can open to the public and sell takeaway food and drink as follows:

Between the hours of 5am and 11pm you are permitted to sell food and drink (excluding alcohol) for takeaway, click and collect or drive thru. Customers can enter you premises to order takeaway food and non-alcoholic drinks and remain there whilst it is prepared, albeit if you are asking customers to wait some time, you will need to have a proper risk assessment for where they wait, how they socially distance, etc. Waiting would be better outdoors.

Between the hours of 11pm and 5am, any sales must be via home delivery ordered through a website, online, telephone or by post. Drive thru is also permitted so long as the customer does not leave their vehicle.

The consumption of any food and drink sold by way of takeaway MUST NOT take place outside the premises. This includes any area adjacent to your premises where customers might ordinarily gather to eat or drink. Notices to this effect should be on display in and at the entrance to your premises.

Can I open and sell food and drink as a grocery store without alcohol?

Yes you can, given that you would not be using the premises as a licensed premises and therefore cannot be considered to be in breach of your premises licence.

What should I do if I want to change the nature of my business whilst we are in lockdown?

Given the more robust approach councils and police appear to be taking to enforcing the rules, we recommend that you inform the council of what you intend to do in advance and work with them to agree how best you can open in a compliant manner. Should you have any queries, concerns, or should you find that you cannot agree how this would work in practice with your local officers, then please contact us.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions