KNOWLEDGE

COVID-19 Licensing

Morton Fraser Partner David Hossack
Author
David Hossack
Consultant
PUBLISHED:
07 April 2020
Audience:
category:
Blog

These are indeed unprecedented times which affect all aspects of society. 

The operation of the Licensing regime is no exception to this, resulting in the need for changes. Regulations have already been introduced requiring the closure of businesses selling food or drink for consumption on the premises. The Coronavirus (Scotland) Act, which received Royal Assent on 6th April 2020 sets out a number of modifications to the relevant legislation. The proposal is that the Bill will expire on 30 September this year with the power for further extensions. Given the scope of the Licensing (Scotland) Act 2005, many provisions are required. The key points to note are:

  1. Licensing Boards are to be given flexibility in respect of holding in person hearings and do not have to meet in Public if they cannot do so as a result of the coronavirus outbreak. A Board must give an opportunity for persons who would otherwise have been entitled to be heard to comment by phone, video conference or written representations.
  2. It is made clear beyond doubt that premises will not be treated as ceasing to be used for the sale of alcohol if closed for a temporary period because of coronavirus.
  3. Transfer applications under s34 normally have to be made within 28 days of certain events. Licensing Boards will have discretion to accept applications for the transfer of premises licences after the 28 day deadline where the Licensing Board considers it appropriate for reasons related to the coronavirus outbreak.
  4. Section 54 of the 2005 Act deals with the situation where a premises manager is no longer able to undertake their duties.  Additional time (28 days instead of 7 days) is provided for the premises licence holder to notify the Licensing Board that any of the events in section 54(2) have occurred.  Instead of a premises licence variation application to substitute a new premises manager being required to be submitted to the Licensing Board within 6 weeks, a premises licence holder has up to 3 months from the date of the loss of the premises manager. The Licensing Board can extend this period of 3 months for a further period of time for a reason relating to the coronavirus outbreak.
  5. If food is sold on the premises but the operating plan does not contain an express term to the effect that food may be taken away, or delivered, from the premises for consumption off the premises, a term to that effect is to be implied into the operating plan.
  6. For personal licences, where a personal licence renewal application is made and the Board has not determined the application before the expiry date, the licence will continue to have effect for a period of 6 months. This provides additional time for a Licensing Board to determine an application. Currently a personal licence holder may make a personal licence renewal application during the period from 12 months prior to the expiry date up to three months prior to the expiry date. What is intended is that a personal licence renewal application may be made up to the day before the expiry date of the licence provided the Licensing Board is satisfied that, for a reason relating to coronavirus, the licence holder was unable to make the application within the usual period allowed.
  7. If the Licensing Board is satisfied that the coronavirus outbreak means completion of refresher training cannot be done in line with the timescales set out in the 2005 Act, the Licensing Board can extend the period up to a length of time of their choosing for completion of the necessary training and for the licence holder to provide evidence of having undertaken this training.  The Licensing Board can extend the period more than once.
  8. A Licensing Board may decide to delegate decision-making over certain matters to a Committee of the Board consisting of no less than 3 members but only if a Licensing Board considers it necessary for a reason relating to coronavirus. The quorum for a meeting of a Licensing Board is one-third of members rather than one-half although not fewer than 3 members must be present.
  9. Greater flexibility in terms of timescale is permitted for the Police to respond to a notice from a Licensing Board to provide information to the Board in respect of various licensing matters. Likewise, there is provision for late input from Licensing Standards Officers to be taken into account.
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