Proposed changes to the Mandatory Conditions - a commentary from John Gaunt
2014
Two weeks ago, the government tabled proposed changes to the mandatory conditions which will appear on all premises licences from (it is expected) 1 October. These changes are significant in effect and undoubtedly intended to tighten up on what went before and to make enforcement of the conditions easier. As such operators should take note and be aware.
The full amended conditions appear at the foot of this opinion piece. Dealing with the detail in turn:
Irresponsible promotions
The prohibition on these is tightened up in a number of respects. In the first place it becomes a mandatory requirement to ensure that irresponsible promotions do not take place on premises. The current requirement is to ensure that all reasonable steps only be taken.
Second, the list of irresponsible promotions with which you will be familiar, now will be deemed irresponsible without reference to the previous test as to whether the promotion was designed to or ran the risk of undermining the licensing objectives in three types of promotion. This ancillary test made it much harder, if not almost impossible, for authorities to seek to challenge a promotion, unlike the comparable position in Scotland.
The categories of promotion which are now unlawful in any respect are those listed at Paragraph 2 (a), (d) and (e) below. These include games or other activities which required or encouraged individuals to drink a quantity of alcohol within a time limit or drink as much alcohol as possible (whether within a time limit or otherwise.)
The promotion which allowed for unlimited or unspecified quantities of alcohol free or for a fixed or discounted fee to the public or to a group defined by a particular characteristic (other than any promotion or discount available to an individual in respect of alcohol for consumption at a table meal) is being altered, in that the table meal exemption is going.
The loss of that exemption in respect of table meals could have had major implications for corporate sponsorship events in particular, but this is now one of the two promotions which will only continue to be unlawful if it “carries a significant risk of undermining a licensing objective”.
What has gone from this list of irresponsible promotions is a promotion providing free or discounted alcohol in relation to the viewing on the premises of a sporting event, where that provision is dependent on the outcome of a race, competition or other event or process, or the likelihood of anything occurring or not occurring.
Free tap water is provided on request to customers
There is a limited change here in that the new requirement is to require that free, potable water is provided. It must by potable (not portable, as a previous guidance suggested!) but the rule no longer specifies that it comes from a tap!
Requirement for an age verification policy
All premises must already have to have an age verification policy in place; this requirement is reinforced by the additional obligation now to be imposed that whereas the premises licence holder remains responsible for setting the policy, the designated premises supervisor has the new responsibility for ensuring that the policy is applied within their premises.
Smaller measures of beer, cider, wine and spirits to be available
The changes proposed here have the most direct and immediate impact for operators, for which you will need to forward-plan.
The existing mandatory condition provides that the responsible person must ensure that for on-consumption alcohol is available to customers in the following measures: beer or cider: ½ pint; gin, rum, vodka or whisky: 25ml or 35ml; and still wine in a glass: 125 ml and that customers are made aware of the availability of these measures. This was a weak requirement in terms of delivery.
This is to be amended to provide that such smaller measures are displayed in a menu, price list or other printed material which is available to customers on the premises; and that where a customer does not (in relation to a sale of alcohol) specify the quantity of alcohol to be sold, the customer is made aware that these measures are available.
Operators will need to ensure that all menus, price lists and any other similar printed material references these smaller measures and their availability. There will be reprinting to be done. There will also need to be additional staff training to ensure that where a drink is requested without specifying the measure or amount, the smallest measure is offered. Only recently I was in a pub where I was told that they did not serve wine in a 125ml measure. Not to do so was unlawful before but will be completely “beyond the pale” in the future. This will be fertile ground for possible Trading Standards test purchasing.
The observant of you may notice that the separate requirement prohibiting the direct dispense of drink into the mouth of another has gone. Before you rush off the buy the so-called “dentist’s chair”, this practice now joins the list of irresponsible promotions at paragraph 2 (e)!
We are told that guidance to support implementation of these revised conditions will be published in advance of the commencement of the Order, although how close to the implementation of these changes remains to be seen.
The proposed amended mandatory licensing conditions referred to above are:
1. (1) The responsible person must [as opposed to “shall take all reasonable steps to”] ensure that staff on relevant premises do not carry out, arrange or participate in any irresponsible promotions in relation to the premises.
(2) In this paragraph, an irresponsible promotion means any one or more of the following activities, or substantially similar activities, carried on for the purpose of encouraging the sale or supply of alcohol for consumption on the premises:
(a) games or other activities which require or encourage, or are designed to require or encourage, individuals to
(i) drink a quantity of alcohol within a time limit (other than to drink alcohol sold or supplied on the premises before the cessation of the period in which the responsible person is authorised to sell or supply alcohol), or
(ii) drink as much alcohol as possible (whether within a time limit or otherwise);
(b) provision of unlimited or unspecified quantities of alcohol free or for a fixed or discounted fee to the public or to a group defined by a particular characteristic in a manner which carries a significant risk of undermining a licensing objective [words added];
(c) provision of free or discounted alcohol or any other thing as a prize to encourage or reward the purchase and consumption of alcohol over a period of 24 hours or less in a manner which carries a significant risk of undermining a licensing objective [words added];
(d) selling or supplying alcohol in association with promotional posters or flyers on, or in the vicinity of, the premises which can reasonably be considered to condone, encourage or glamorise anti-social behaviour or to refer to the effects of drunkenness in any favourable manner;
(e) dispensing alcohol directly by one person into the mouth of another (other than where that other person is unable to drink without assistance by reason of disability).
2. The responsible person must ensure that free potable water is provided on request to customers where it is reasonably available.
3. (1) The premises licence holder or club premises certificate holder must ensure that an age verification policy is adopted in respect of the premises in relation to the sale or supply of alcohol.
(2) The designated premises supervisor in relation to the premises licence must ensure that the supply of alcohol at the premises is carried on in accordance with the age verification policy. [New]
(3) The policy must require individuals who appear to the responsible person to be under 18 years of age (or such older age as may be specified in the policy) to produce on request, before being served alcohol, identification bearing their photograph, date of birth and either
(a) a holographic mark, or
(b) an ultraviolet feature. [New]
4. The responsible person must ensure that
(a) where any of the following alcoholic drinks is sold or supplied for consumption on the premises (other than alcoholic drinks sold or supplied having been made up in advance ready for sale or supply in a securely closed container) it is available to customers in the following measures:
(i) beer or cider: ½ pint;
(ii) gin, rum, vodka or whisky: 25ml or 35ml; and
(iii) still wine in a glass: 125ml;
(b) these measures are displayed in a menu, price list or other printed material which is available to customers on the premises; and
(c) if a customer does not in relation to a sale of alcohol specify the quantity of alcohol to be sold, the customer is made aware that these measures are available.