Category: Alcohol

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One Step Forwards, Two Steps Back

Luke and I were chatting this week about topics for today’s newsletter and the fact it was impossible to write about what the likelihood was of licensed premises opening up after 2nd December when this lock down ends. We decided it was too speculative to try and second guess what is going to happen. A further lockdown, return to the previous tier system, new tiers–who knows really. As a result of our chat, and the decision to wait until we had some understanding of what is to happen, it made me realise how impossible it is for the trade to plan. We know for certain that nightclubs will not be able to reopen, I can’t see how the government will change their position and we have to wonder whether some of the late night venues will now ever reopen.

We are now approaching the busiest time of the year for restaurants and bars. The next 5 weeks usually generate the business which provides the revenues to get through the fallow months of January and February. Without these 5 weeks of bumper returns, many operators could fail–from small independents right up to the largest of multiple operators. What do you order in to sell? I saw one of my clients posting this week as they were disposing of beer stocks going out of date in this lockdown. It is a complete mess that is for sure and the lack of certainty for planning is shambolic. We represent significant National Casino and Bingo operators and we have seen ever-changing schedules of who is open, who is on furlough, who we should deal with. It is taking a huge amount of effort for lots of these operators to change their style of operation to match what they can do, and have to do to provide a COVID safe environment.

2021 will be Andy and my 30th year as qualified solicitors specializing in the Leisure and Gambling sector. We have seen huge challenges in that time but we are both confident that as we pull out of this pandemic we will see the leisure and gambling sector show new buds of growth. Some, but not all, will come through the hardest of times. It is those who had viable, successful business which don’t survive who you feel the most sorry for.

What we are seeing is fresh challenges every day. The industry looks at bringing in innovative new ways to create a safe environment, and then people behave in such a way that it puts their licence in jeopardy. When we came out of lockdown I was in one of my client’s premises and was shown how the QR code worked. Scan it on your phone, up pops a menu, you order and pay without leaving your seat, and your drinks are delivered to you at your table. Wow, I was so impressed and the operator told me how they were able to go cashless in their premises and control the number of staff they needed so much more accurately. Good for the operator, good for the customer–win win. But, one step forwards, two steps back…every time something good comes forward, people begin to behave to frustrate the system. I had a meeting with the police and council licensing officers in Leeds. Great to see them, in a socially distanced environment with our masks on. It was at this meeting that they explained the new pitfalls of the QR system and remote ordering. People have been ordering drinks through these app-based systems for different tables or even adults have been ordering on their credit/debit cards from home for their kids in licensed premises. This brings about a whole new set of issues over assessing the age of people as they have their drinks delivered. Training of staff to ensure that challenge 21/25 is still taking place when alcohol is delivered to the table is now even more vital. It also brings about monitoring what people are drinking, how much people are consuming and how quickly, if they aren’t ordering their own drinks. Strong management right through all staff is going to be critical and I cant thank the officers enough for bringing this to my attention.

Luke and I have also been discussing Cumulative Impact Policies over the last few days as we delivered a session at the IOL virtual conference, on where they sit post pandemic. What is for sure is that every single CIP has been developed on data which is now fatally flawed and out of date. Lots of licensing authorities will be coming up to reviewing their policies, which they have to do at least every three years. Lets hope this is an open and honest process and we look carefully at what the landscape looks like now as opposed to when the policy was derived. We are making applications at the moment in CIP areas and trying to explain to committees why a fresh approach needs to be taken. Fortunately we have, for the most part, seen sense prevail and a good pragmatic approach being taken.

We are hoping for better news for the bar, leisure and gambling sectors as we approach the release from lockdown, whatever the government plan we will be hear to help and advise all of our clients.

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Westminster City Council’s Statement of Licensing Policy Consultation and Cumulative Impact Assessment – An Overview

A copy of Westminster’s policy review can be found here – https://www.westminster.gov.uk/sites/default/files/proposals_for_revision_of_slp_and_publication_of_cia_final_oct_2020_2.pdf

A copy of Westminster’s Cumulative Impact Assessment can be found here – https://www.westminster.gov.uk/sites/default/files/411_19_-_wcc_cumulative_impact_assessment_document_aw.pdf

Before we look at the detail of Westminster’s policy review and CIA here are some key dates for your diary:

  1. The consultation closes on Sunday 15 November 2020
  2. Westminster are holding an online question and answer session for local businesses on Monday 19 October 2020 from 5pm and you can sign up here – https://licensingconsultation2020-business.eventbrite.co.uk/
  3. Westminster are holding an online question and answer session for local residents on Monday 26 October 2020 from 4pm and you can sign up here – https://www.eventbrite.co.uk/e/licensing-policy-review-qas-with-westminster-residents-tickets-125002354407

Having read this note you may or may not decide that you want to respond to the council’s consultation to make your views heard. The council are inviting responses in a number of ways:

  1. By the completion of an online survey. This can be accessed by following this link: https://www.smartsurvey.co.uk/s/CIAConsultation2020/; or
  2. By emailing your comments to a dedicated email address, which is licensingconsultation@westminster.gov.uk; or
  3. By sending* your comments to:

Licensing Policy Consultation

Policy Team – Innovation and Change

17th Floor

Westminster City Council

Westminster City Hall

64 Victoria Street

* The council ask that if you are sending your comments by post that you do so in good time to ensure that they are received by 15 November 2020. As 15 November 2020 is a Sunday and the council office is likely to be closed we think this means received by Friday 13 November.

Westminster say

“With an uncertain future and the difficulties that the hospitality and entertainment sector face, we were very aware that to implement significant change in our Licensing Policy could add to that uncertainty. Therefore, our proposed approach to this year’s revision is to continue with the current policy approach where possible. We believe that this will provide a stable policy background whilst maintaining the protections for our residents and enabling businesses to operate in a responsible way.”

Such a statement might lead you to conclude that not much is changing in Westminster. Do not be fooled. As always, the devil is in the detail and in this article we are going to look at some of the main changes and what we think they mean for Premises Licence Holders and prospective applicants in Westminster. They are summarised by the council as follows:

  • Add a statement on the Licensing Authority’s expectation on licensed premises’ approach to inclusion in the evening and night-time economy
  • A summary of the 2020 Cumulative Impact Assessment
  • A revised policy framework for the Licensing Objectives Policies CD1, PS1, and PN1
  • A revised Protection of Children from Harm Policy (CH1) framework and the addition of safeguarding as a key consideration within that policy.
  • Retention of the existing West End Cumulative Impact Zone boundary, except for the North East area beyond Covent Garden, and to revise the policy framework for the Cumulative Impact Policy – CIP1
  • The removal of the Cumulative Impact Zones for Edgware Road and Queensway/Bayswater
  • A revised Core Hours Policy – HRS1 framework based on premises uses rather than licensable activities
  • A new Special Consideration Zone Policy- SCZ1
  • Revised policy framework for premises use policies and updates to policy narrative where necessary
  • Removing qualifying clubs from the theatres, cinemas and other performance venues policy, and expanding the policy to include a wider variety of cultural venues and live sporting venues
  • Creating a standalone policy for Qualifying Clubs
  • Minor updates and changes across the statement to references to law, guidance or Council policies/strategies.

Having been through the proposal document in some detail we have picked out what we see as the major changes that operators need to be aware of:

  1. The creation of Special Consideration Zones (SCZs);
  2. A change to the Core Hours policy based upon premises “type”; and
  3. A far greater onus to be placed on applicants in the context of the documents they will be expected to submit with their applications.

Special Consideration Zones

Westminster haven’t decided to increase the size of their West End Stress Area (Cumulative Impact Zone). In fact, they have reduced it slightly by carving out a small area to the northeast of Covent Garden. However, Westminster have designated a large area surrounding the existing West End Stress Area (as well as a number of other areas) as a Special Consideration Zone.

Special Consideration Zones don’t exist in the context of the Licensing Act 2003 or its accompanying Guidance. They are something that have been created by Licensing Authorities to apply to areas where they are considering putting in to place a Cumulative Impact Area. Westminster seem to be taking that approach one step further by inviting applicants to attempt to address the issues identified in the Special Consideration Zones when making their application. Time will tell, but it seems to us that Westminster are imposing a higher standard on applications in these areas than would be required outside of them.

Changes to Westminster’s Core Hours Policy

This is actually quite a substantial change to Westminster’s approach to core hours. Currently, Westminster’s policy distinguishes between premises that offer alcohol for consumption on the premises, premises that offer alcohol for consumption off the premises, and premises that offer other licensable activities but not alcohol. It is known as HRS1 and sits alongside Westminster’s policies for different types of premises e.g. RNT1 & RNT2, which deal with restaurants.

Westminster will now be following a model that has been adopted by lots of other Licensing Authorities and applying core hours to particular “types” of premises rather than across the board. Applicants will now need to consider what they are at the time of applying and cut their cloth accordingly. One problem we have found with these types of policies in other areas is that premises don’t always fall neatly into the categories that Licensing Authorities want them to. We have acted for many operators up and down the country of what have become known “Competitive Socialising Venues” and we have found that Licensing Authorities often have great difficulty in categorising them. Operators are hugely innovative in their approach and it will not be long before someone comes along with something new and exciting and we expect councils, including Westminster, will continue to struggle with that.

Documents supporting licence applications

Reading through Westminster’s document we observed lots of references to documents they would like to see supporting licensing applications. Everything from safeguarding policies to fully fledged risk assessments at the time of application are mentioned. A concern that we have is the extent to which these documents will be demanded by Responsible Authority officers and therefore become a necessity when making an application. There is nothing overtly objectionable about doing a risk assessment before making a premises licence application but we can see errors or accidental omissions in risk assessments being pounced upon by those that would see applications refused.

Whether you are an existing premises licence holder in Westminster, or have designs on opening there in the not too distant future, we strongly recommend that you read Westminster’s licensing policy proposals and respond to the consultation as you see fit. Policy consultations give operators the chance to scrutinise a council’s plans before they come in to force. We often hear views about policies voiced after they have come into effect. This is a chance to express your views now. Make sure you use it.

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Welcome to the Tier System

The Government has decided that everything has become too confusing, that people don’t know whether they are coming or going, and that things need to be made simpler so that we can all understand what we’re supposed to be doing at any given time.

Rather than impose a national lockdown like we experienced in March, or continue with specific local lockdowns, the Government has decided to create a tier system consisting of medium, high, and very high tiers together with legislation and guidance to accompany them. The tier system came into force at 00:01 on 14 October.

This article will look at what the rules are for each of the tiers and the differences between them.

Medium (Tier 1)

This is the tier that applies to most of the country and that replicates the status quo prior to the introduction of the tier system. That means:

  • The rule of 6 (e.g. not meeting in groups larger than 6 indoors or outdoors)
  • Restrictions on opening hours for hospitality businesses (e.g. 10pm closure)
  • Restrictions on operation for hospitality businesses (e.g. table service)
  • Most other premises able to stay open
  • Working from home where possible

The medium tier doesn’t introduce any significant changes day-to-day and the situation will be reviewed monthly. The same is not true of the high and very high tiers.

High (Tier 2)

This tier applies to large parts of the north of England. A full list of the areas included can be found in Schedule 2 of the relevant regulations and includes places such as Leeds, Manchester, Birmingham, Nottingham and many others.

The key differences between the medium and the high tier are:

  • A ban on mixing with other households or people outside your support bubble anywhere inside, including in private homes. Seeing other households whilst still keeping to groups of no more than 6 outdoors is still possible
  • The ban above also includes hospitality businesses so premises will need to make sure they aren’t accommodating groups that aren’t from one household/a support bubble

Areas given tier 2 status will be reviewed every 14 days with the rules reviewed every 28 days.

Very High (Tier 3)

This tier applies to the worst affected areas and includes Liverpool and other surrounding areas. It is quite likely that other areas will be added to tier 3 in the coming days/weeks.

The key differences between the very high and the high/medium tiers are:

  • pubs and bars must close. They can only remain open where they operate as if they were a restaurant – which means serving substantial meals, like a main lunchtime or evening meal. They may only serve alcohol as part of such a meal
  • advising people not to travel into or out of an area if it has been categorised as a very high alert level area. This is part of wider measures to help manage the risk of transmission. You can continue to travel into or out of very high alert level areas if you need to for work, education, to access youth services or because of caring responsibilities.

In addition to these restrictions the Government guidance also suggests they will consider:

  • restrictions preventing the sale of alcohol in hospitality or closing all hospitality (takeaway and delivery permitted)
  • closing indoor and outdoor entertainment and tourist attractions and venues
  • closing venues such as leisure centres and gyms (while ensuring provision remains available for elite athletes, youth and disabled sport and physical activity)
  • closing public buildings, such as libraries and community centres (while ensuring provision remains available for youth clubs and childcare activity and support groups)
  • closing personal care and close contact services or prohibiting the highest-risk activities
  • closing performing arts venues for the purposes of performing to audiences

In short, the types of restrictions imposed under Tier 3 are not far short of those experienced in March.

If you are a premises that is affected by the new system and would like advise on what the system means for you please contact us for support.

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The Latest Coronavirus Regulations

More rules are upon us! Once again the country has stopped in its tracks and scrambled to decipher the government’s latest attempt to tackle the pandemic. Unfortunately for many the leisure industry is taking the biggest hit in the new regulations.

A number of these new precautions are already in place in local lockdowns and are generally aimed at minimising the risk of transmission and infection. The official legislation was released overnight:

The Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 5) Regulations 2020

“Restrictions on opening hours of businesses and services

4A.—(1) A person responsible for carrying on a restricted business or providing a restricted service (“P”) must not carry on that business or provide that service during the emergency period between the hours of 22:00 and 05:00, subject to paragraphs (2), (3) and (4).

(2) Paragraph (1) does not prevent P selling food or drink for consumption off the premises between the hours of 22:00 and 05:00—

(a) by making deliveries in response to orders received—

 (i) through a website, or otherwise by on-line communication;

 (ii) by telephone, including orders by text message; or

 (iii) by post; or

(b) to a purchaser who collects the food or drink in a vehicle, and to whom the food or drink is passed without the purchaser or any other person leaving the vehicle.”

What has changed in restaurants and bars?

The main changes for restaurants, pubs and bars are the 22:00 curfew, staff and customers wearing face coverings and mandatory table service.

The Guidance on face coverings states; ‘a face covering should cover your nose and mouth while allowing you to breathe comfortably, fit comfortably but securely against the side of the face- be secured to the head with ties or ear loops, be made of material that you find to be comfortable and breathable, such as cotton, ideally include 2 layers of fabric’. There is a debate at the moment as to whether a visor complies with this guidance as it is not fixed to the side of the face.

Customers may take off their face covering when eating and drinking, but must don them when using toilet facilities and on entering and leaving the restaurant. Staff in retail must also now wear face coverings. Those already exempt from face coverings will remain exempt.

The curfew kicks in at 22:00 sharp, not a call for last orders or a wind down but a closure at 22.00. Operators will need to think about how and when they begin to wind down in order to comply with this.

Many venues have launched table service phone apps which have thrived in the current conditions, these kinds of innovations to service will continue to help operators to comply with conditions and maintain their business. It is worth noting that the strict table service rules only apply to venues serving alcohol. For those who aren’t, they must still take “all reasonable steps to ensure that the customer remains seated whilst consuming the food or drink on the premises”.

Operators must also be clear on the Rule of 6 (more on this later), specifically not allowing bookings of more than 6, unless they are a ‘bubble’ or household, and not allowing mingling. The social distanced table layouts will need to remain in place.

The good news is delivery services may continue, providing they are delivery and not collection.

Who else does the curfew affect?

The curfew also affects businesses providing food or drink prepared on the premises for immediate consumption off the premises, social clubs, casinos, bowling alleys, cinemas, theatres, amusement arcades (and other indoor leisure centres or facilities), funfairs, theme parks, adventure parks and activities, bingo halls and concern halls

However, whilst all of the above are subject to the curfew, some are not required to provide table service as they are not in Part 1, Schedule 3 of the regulations. These are bowling alleys, cinemas, theatres, amusement arcades or other indoor leisure centres or facilities, funfairs (indoors or outdoors), theme parks and adventure parks and activities, bingo halls and concert halls.

There has been some additional guidance released on cinemas, theatres and concert halls, who can stay open after 10pm only if the performance started before 10pm and provided they do not serve food or drink after this time, however for the rest of the venues on this list it remains to be seen whether any additional guidance will be released.

There are some venues exempt from the curfew, including supermarkets, convenience stores, corner shops and newsagents, pharmacists and chemists, petrol stations, cafes or canteens (at a hospital, care home or school, prison) and services providing food or drink to the homeless.

What about hotels?

Hotel bars and restaurants are specifically included in the 22:00 curfew, however the hotels themselves should be able to continue to operate and may provide room service provided it is by delivery only. The regulations are not absolutely clear on this point but certainly if the hotel bed rooms are not included in the licensed area then the delivery of alcohol and food to a bedroom will be an off sale. It appears that the government has not considered the situation in which the licensed area is actually included within the red line of the licensed area but there is no mention of service to hotel rooms being prevented after 22:00. Hotels must close the bars and restaurants at 22:00 .

Track and Trace

Some slight changes to the national track and trace system thanks to the launch of the NHS Track and Trace app. Businesses will be required to display the official NHS QR code allowing customers an alternative to providing their contact details.

The Rule of 6

The exemptions to the Rule of 6 are being narrowed, with the only exemptions now being organised outdoor sport, organised indoor sport for disabled people, weddings (maximum of 15 people) and funerals.

Therefore all other gatherings, including eating in a restaurant, participating in indoor sports or going to a bowling alley, must now only be undertaken in groups of 6. There is still discussion ongoing as to whether this means only 6 people will be allowed in the venue at any one time, or whether several groups of 6 will be allowed into the venue (where social distancing allows for it).

Support groups are limited to 15 people.

What has changed for Taxis?

Whilst the likes of Uber had already implemented mandatory face coverings, this is now the case in all taxis and private hire vehicles.

When does this all kick in?

The majority of these measures take effect on 24 September 2020, and are threatening to last for the winter.

From 28 September even more of these measures are set to become law, and consequently a wider range of businesses in breach will be subject to fines, including:

  • ensuring customers observe the rule of six, and appropriate social distancing through signage, layout, and managing customer entry.
  • reminding customers to wear face coverings where mandated.

Employers will also be banned from requiring self-isolating employees to come to work.

We will keep you updated as matters progress…

https://www.legislation.gov.uk/uksi/2020/1029/pdfs/uksi_20201029_en.pdf

https://www.legislation.gov.uk/uksi/2020/684

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Data Protection and Contact Tracing – How do Businesses Ensure Cross Compliance?

COVID-19 has seen unprecedented change across all sectors in which everyone has had to adapt and change at a speed.

The government has provided guidance in relation to contact tracing in which they state that organisations in certain sectors should collect details and maintain details of staff, customers and visitors on their premises. Test and Trace is run by the NHS and is a key part of the country’s ongoing COVID-19 response. NHS Test and Trace includes contact tracing staff working to contact everyone that has been potentially exposed to COVID-19 which will assist in eliminating the spread and controlling COVID-19. This scheme is entirely voluntary and the accuracy of the information provided is solely the responsibility of the individual who provides that data. There is no requirement for business to verify an individual’s identity for NHS Test and Trace purposes.

Therefore you may be faced with the situation of collecting personal data, but ensuring you handle it lawfully.

The Information Commissioner’s office, the regulator for data protection, has issued some guidance to organisations regarding protecting customer and visitor details. This can be summarised as follows:

  • Ask for only what’s needed.
  • Be transparent with customers.
  • Carefully store the data.
  • Don’t use it for other purposes.
  • Erase it in line with government guidance.

There are some important key points to be aware of above. In particular, it may be tempting to include individuals personal data on any marketing and mailing lists. However, it is clear that this personal information cannot be used for his purpose where the collection of the data is as a result of contact tracing in line with government guidance.

Although the retention of data for the purpose of track and trace cannot be retained for marketing purposes, you may wish to consider whether you ask express permission for this ability and ensure it is separate and not a requirement of individuals providing their details for the purposes of track and trace. You will need to consider your privacy policy and have clear processes to ensure personal data is collected lawfully.

Another important point is that of retention. The government guidelines currently specify that personal details should be kept for 21 days, which reflects the incubation period for COVID-19 and an additional 7 days. The personal data that is collected for the purpose of contact tracing must be deleted after this time. Please note that records which are made and kept for other business purposes do not need to be disposed of, and this only relates to that of contact tracing.

Now may be the time to look at your organisations privacy policy and also ensure that customers are aware of the collection of their personal data in line with an organisation following government guidance in relation to contact tracing. With the rapid changes we have experienced recently the law in a variety of areas has changed or been relaxed. In some areas it could be said the law conflicts on certain topics. Sadly it is your burden to reconcile how it impacts all your organisation and steer a lawful course through it all!

If you have any questions or are not sure about your requirements of data protection, Covid-19 or any other regulatory matter, then please contact the regulatory team at Woods Whur and we would be happy to discuss the guidelines with you in accordance with GDPR and your wider obligations. If you would like to contact us, please email james@woodswhur.co.uk or sfrow@woodswhur.co.uk or call us on 0113 234 3055.

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Local Interpretation Exposes Flaws in Guidance to Operators Before Reopening on Saturday

Yesterday I was invited to attend a meeting at Elland Road Police Station in Leeds with all of the key stakeholders from Leeds City Council and Leeds Police Licensing Team.

It was an exceptionally helpful and informative meeting. Local positive engagement with operators is going to be key as we move into the opening of licensed premises after such a significant period of closure. One of the key areas for debate was the status of the Guidance issued by the government – Keeping workers and customers safe during COVID-19 in restaurants, pubs, bars and take away services.

Whether you agree with it or not, the government has taken a strategic approach to the opening of licensed premises which centres around self-regulation:-

  • On 15 June 2020, the table which lists which premises are allowed to be open to the public was amended to include “restaurants and public houses, bars or other food and drink establishments including within hotels and members clubs such as dining rooms”
  • Nightclubs, casinos and bowling alleys were prohibited from reopening a this stage

This creates a mandatory position – which premises  MUST stay closed and those which are allowed to reopen from July 4th.

However, the government have chosen to place the onus on operators to risk assess their premises and invited them to follow the Guidance issued on 23 June 2020.

At page 4 of the guidance, the government states:

  • “Each business will need to translate this into the specific actions it needs to take, depending on the nature of their business, including the size and type of business, how it is organised, operated, managed and regulated. They will also need to monitor these measures to make sure that they continue to protect customers and workers”.
  • “This guidance does not supersede any legal obligations relating to health and safety entertainment licensing and regulations….It contains non-statutory guidance to take into account when complying with these existing obligation.”

What we agreed at our meeting in Leeds yesterday is that the risk assessments which operators need to take have to be dynamic. This should not be a desktop box filling exercise. It should be bespoke to the premises. It should take into account what the risks are in the style of operation of the premises and set out what measures are being taken to manage the risk. As the objective says “to reduce risk to the lowest reasonable practicable level by taking preventative measures, in order of priority.”

The document sets out suggestions of issues that should be looked at in these risk assessments.

It is imperative that these risk assessments are shared with staff at premises to make sure that there is a 100% buy in to the changes in operational style.

Social distancing and capacity are clear issues in reopening of premises and Leeds Police and Licensing said that they would be sensible with looking at operators obligations. For example some licences have a condition to provide SIA on their premises. If the capacity is vastly reduced, then the same number of door supervisors may not be needed. The Police and Licensing authority said that they would look at this on a case by case basis and would expect the operator to be able to risk asses the number of door supervisors that would be required and if it is less than the minimum figure placed on a condition on the licence, they would not look to enforcing that condition.

One of the areas that came up for debate was the showing of live sport, and particularly football on TV screens in licensed premises. This is a topical issue around the country and different areas are interpreting the guidance differently.

A key section of the guidance is 4.5 which deals with entertainment. It is my view that this is a guidance document. It doesn’t constitute a mandatory requirement in relation to operators. However, if operators decide to risk assess their premises and step away from the guidance, they run the risk if things go wrong. If for example entertainment is offered at the premises which it is suggested shouldn’t be offered, then there is a risk of a review of your premises licence under the health and safety licensing objective should issues result.

It is important to look at the wording of Section 4.5 in the document:-

  • For many restaurants, pubs and bars, providing entertainment such as recorded music, live sports broadcasts, quizzes, live musicians or comedians are an important part of their business.
  • At this time, venues should not permit live performances, including drama, comedy and music, to take place in front of a live audience. This is important to mitigate the risks of aerosol transmission – from either the performer(s) or their audience. There will be further guidance setting out how performing arts activity can be managed safely in other settings, for instance rehearsing or broadcast without an audience.
  • All venues should ensure that steps are taken to avoid people needing to unduly raise their voices to each other. This includes, but is not limited to, refraining from playing music or broadcasts that may encourage shouting, including if played at a volume that makes normal conversation difficult. This is because of the potential for increased risk of transmission, particularly form aerosol transmission. We will develop further guidance, based on scientific evidence, to enable these activities as soon as possible. You should take similar steps to prevent other close contact activities such as communal dancing.
  • Preventing entertainment, such as broadcasts, that is likely to encourage audience behaviours increasing transmission risks. For example, loud background music, communal dancing, group singing or chanting.

So the big question at yesterday’s meeting was what about showing live football.

I do not believe that the guidance suggests that you cannot do this. What it does suggest is that you need to risk assess how you will change the way that you deliver the live football broadcast – for example, reducing the volume or having no volume at all. In addition, a key part of your risk assessment will be how you will manage customers should they become excitable and potentially breach social distancing. This is a real conundrum for many premises. We saw how people behaved when Liverpool won the title and there is the possibility of Leeds United (hopefully as a fan of LUFC and their lawyer) gaining promotion back to the premiership. This would clearly lead to significant management issues for premises who wish to show Leeds matches towards the end of the season. It is critical, in the way that I am advising clients, that if they wish to show live football they can, but they must have a risk assessment in place as to how they are going to manage people on their premises.

Risk assessments, as well as being fed into all staff, need to be debriefed at the end of a trading session – including the door staff. The risk assessment needs to be updated to take into account the lessons that will be learnt from trading under these new sets of circumstances.

The environmental health representative at the meeting yesterday could not stress more highly how important it is for the hand washing regime is to be taken seriously. This must not be just a token effort. Proper hand washing with soap and water is still the best form of cleanliness to stop the transmission of the disease.

Another area that we discussed was travelling to and from work and this is mentioned in the guidance also. All parties were very keen to see that staff do not travel in groups to and from their shift. It is also sensible to stagger staff levels accordingly.

It is vitally important that we all work to get this right and support the leisure industry to reopen responsibly and safely. It was fantastic to be part of a collegiate approach yesterday in Leeds. Everyone looking to work together to support good responsible operators. Hopefully a successful and peaceful reopening on Saturday.

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COVID-19 Re-Opening Strategy

On 20th March 2020, by order of the government, licensed premises in the UK were ordered to close as part of the government lockdown and those premises have remain closed. The leisure sector has as a result been one of the most hardest hit and there are a number of reports emerging as to the potential long term consequence on the industry, its operators and employees. I am already seeing reports of notices of intent to appoint administrators. The Prime Minister’s speech on the 10th May 2020 which was followed by the issuing of a 60 page document set out the government’s proposals for relaxing lockdown but it is important to note that any relaxation is dependant on 5 factors;

  • NHS Capacity
  • The ‘R’ number remaining below 1
  • The number of deaths reducing
  • Sufficient PPE
  • No second spike

The opening of clubs, bars and gambling premises will only be considered as part of Step 3 of the government’s relaxation of the lockdown position and at the moment there is very little government information about Step 3. However it may be that some of the guidance for shops which are currently open in Step 1, and those proposed to be opening in Step 2, is of assistance.

The Current Position for the Leisure and Entertainment Industry

Nightclubs, arcades, bowling alleys, bingo halls, casinos, betting shops, cinemas, theatres, concert halls and so on are all currently closed. The opening of the above will be considered as part of Step 3 through various government taskforces

Similarly, restaurants and public houses, wine bars or other food and drink establishments including within hotels and members’ clubs are also currently closed.

The exception for this is for food delivery and takeaway services which can remain operational (this can be a new activity supported by the new permitted development rights in England). This covers the provision of hot or cold food that has been prepared for consumers for collection or delivery to be consumed, reheated or cooked by consumers off the premises.

Another exception is the provision of room service in hotels and accommodation.

The reopening of restaurants, public houses and other food and drink establishments will also be considered as part of Step 3 using the various taskforces.

Hotels are currently open for the following;

  • If a person’s primary residence is unavailable, or a person primarily lives in a hotel, they can continue to live in a hotel
  • Critical workers/non UK residents, if their primary residence is unavailable they can live in a hotel where required
  • A person unable to return to their main residence, or a non-UK resident unable to travel, may stay in a hotel
  • A person unable to move into a new home (due to current restrictions) can stay at a hotel
  • If a hotel is providing rooms to support homeless or vulnerable people who cannot safely remain at home they may continue to do to so (with arrangements through local authorities and other public bodies)
  • A person who is attending a funeral, and it would be impractical to return home, can stay in a hotel
  • Hotels are allowed to host blood donation sessions.

Aside from these exceptions, hotels remain closed for the time being. Their re-opening will be considered as part of step 3.

Step 3- The opening of ‘some’ of the remaining businesses

The aim of Step 3 is to open businesses including hospitality (such as food service providers, pubs and accommodation) and leisure facilities (like cinemas) which were required to close. This is extremely dependant on how steps 1 and 2 go, and the 5 factors referred to above, all of which is determining the government’s strategy.

Pubs and restaurants are currently being considered by the Department for Business, Energy and Industrial Strategy taskforce. Recreation and leisure, including tourism, culture and heritage, libraries, entertainment and sport are being considered by the Department for Culture, Media and Sport taskforce.

The Government’s current planning assumption is that this step will begin be no earlier than 4th July 2020.

If premises were to re-open they would have to meet the COVID-19 Secure guidelines, including social distancing which will presumably mean that some venues may still not be able to open, for example if they are extremely crowded by nature. The government has already said that it is likely outdoor venues will open earlier than indoor public spaces and leisure facilities, due to nature of the spread of the virus and the core purpose of much of the leisure industry being social interaction.

I imagine more will be learnt about what is possible and how the reopening of the leisure industry will work when step 2 begins, and non-essential retail opens. It is likely that pubs, cinemas and such venues will have to consider deploying similar social distancing tactics such as limiting numbers and allowing pre booked seats only. This will create a dilemma for many operators who have commented that the cost of re-opening but with strict controls on numbers etc will not be financially viable. Many may choose to remain closed.

For reference, these are some steps currently in place for open retail venues (like supermarkets) and are the sort of restrictions it is likely we will see continued when non-essential retail opens:

  • Defining the number of customers that can reasonably follow 2m social distancing within the store and any outdoor selling areas. Take into account total floor space as well as likely pinch points and busy areas.
  •  Limiting the number of customers in the store, overall and in any particular congestion areas, for example doorways between outside and inside spaces.
  • Suspending or reducing customer services that cannot be undertaken without contravening social distancing guidelines. This may include re-thinking how assistance is provided, for example, using fixed pairs of colleagues to lift heavy objects rather than a single colleague lifting with a customer.
  • Encouraging customers to shop alone where possible, unless they need specific assistance
  • Reminding customers who are accompanied by children that they are responsible for supervising them at all times and should follow social distancing guidelines.
  • Looking at how people walk through the shop and how you could adjust this to reduce congestion and contact between customers, for example, queue management or one-way flow, where possible. 
  • Ensuring any changes to entries, exit and queue management take into account reasonable adjustments for those who need them, including disabled shoppers.
  • Using outside premises for queuing where available and safe, for example some car parks.
  • Working with your local authority or landlord to take into account the impact of your processes on public spaces such as high streets and public car parks.
  • Having clearly designated positions from which colleagues can provide advice or assistance to customers whilst maintaining social distance.

 Can our licensed premises operate in the above circumstances? Will operators want to do so when it may not be financially viable?

It seems to us however that based  on the current information from the government, it is likely that only establishments where social distancing is possible will open in step 3, which will happen at the earliest 4th July and I am afraid that I still think that 4th July is optimistic and that late summer/the autumn is more likely. Perhaps some restaurants and cinemas will open at a limited capacity (for example with specific seats reserved), but the opening of venues like nightclubs, where crowding is prolific, is bound be pushed back further due to the struggles of maintaining social distancing. There may be a push to reopen venues with outdoor spaces, for example pub gardens, first or perhaps even earlier as it has been announced that outdoor areas are safer than indoor spaces.

I will continue to update everyone on the position as further information is released.

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Easing of Lockdown Restrictions – What does that mean for employers and keeping employees safe

We have recently seen the Government announce its roadmap to easing and lifting the current restrictions in place as to movement, business closures, and social distancing. There has been a raft of guidance published to ensure that businesses are ‘Covid-ready’ and it appears that attempts are now being made to re-engage the economy after the enforced shutdown to restrict the spread of Covid-19.

In addition to the Government announcements, the Chief Coroner published guidance on 28 April 2020 in respect of Covid-19 deaths and possible exposure in the workplace. Within this document, it confirms that the majority of deaths from Covid-19 are due to the natural progression of a naturally occurring disease.  There is therefore no reason for every death caused by Covid-19 to be referred to a Coroner.

The note does, however, go on to state that in some instances, it is appropriate to make a report under RIDDOR (the Reporting of Injury, Diseases and Dangerous Occurrences Regulations 2013) when:

  • An unintended incident at work has led to someone’s possible or actual exposure to coronavirus.  This must be reported as a dangerous occurrence.
  • A worker has been diagnosed as having Covid-19 and there is reasonable evidence that it was caused by exposure at work.  This must be reported as a case of disease.
  • A worker dies as a result of occupational exposure to coronavirus.

Failure to report a RIDDOR reportable incident is a criminal offence which, if found guilty, is punishable by way of unlimited fine or, where an individual has committed the offence and in the most serious of occasions, a custodial sentence.

A lot of employers may not be directly associated with the risks concerned with coronavirus, as there is in, for example, a hospital setting. However, the recent advice note from the Coroner reiterates that there is a risk out there for all employees, regardless of the industry, in that this could be RIDDOR reportable and therefore, there is exposure of liability to the employer in possible civil & criminal terms.

Following the Prime Minister’s announcement on Sunday 10 May 2020, the restrictions have started to ease from Wednesday 13 May 2020 to allow those people that cannot work from home to go back to work. This is conditional on employers having the suitable safeguards in place needed to ensure that risks have been considered as a result of the coronavirus outbreak and to implement social distancing as required.

You should consider carefully asking employees to return to their places of work without proper plans in place to effectively protect your employees from the risks connected to Covid-19. There is some helpful guidance on the Government website confirming that all employers, before allowing employees back to work, must have completed a specific risk assessment concerning the risks associated with the spread of Covid-19, which is to be circulated and sent to the employees working in that office/space/location.

Life and work as we know it has temporarily changed and this does not stop where there has been the lifting of restrictions. It is an obligation for employers to ensure the health and safety of its employees and manage any risks associated with employee’s completing their work on a regular basis. These are unprecedented times, however, this duty has not changed since the Health and Safety at Work Act 1974 came to be law. Remember the risk assessment process of identifying risks and adopting measures to reduce or remove them. This long standing process is equally applicable to Covid-19 as it is to working at height, manual handling etc.

We hope that this article has provided a useful reminder in the, what feels like fast moving situation that we are all currently facing. We hope you are all keeping safe and well and if you would like to discuss this article in more detail and how you can prepare effectively by way of implementation of policies or effective management of risk, then please do not hesitate to contact James and Sarah on james@woodswhur.co.uk or sfrow@woodswhur.co.uk to discuss this.

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Closed Premises must take care to maintain the Premises Licence.

As a country we find ourselves in completely uncharted waters. Never has the leisure industry experienced disruption such as that currently caused by COVID-19 and the steps taken by the government to stop the spread of infection.

With huge challenges to cash flow and businesses fighting to stay alive we think it is vitally important for clients to understand what happens to a Premises Licence should the worst happen and insolvency becomes a real possibility. We hope insolvency doesn’t become a reality, but if it does there are things you can do to protect your Premises Licences.

The starting point, from a licensing perspective in terms of insolvency, is section 27 of the Licensing Act 2003, which provides that a Premises Licence lapses if the holder of the licence:

  • dies;
  • becomes a person who lacks capacity within the meaning of the Mental Capacity Act 2005;
  • becomes insolvent;
  • is dissolved;
  • if the premises is a club, ceases to be a recognised club; or
  • ceases to be entitled to work in the UK.

Section 27 goes on to say that a person becomes insolvent on:

  • the approval of a voluntary arrangement; or
  • being made bankrupt; or
  • having his estate sequestered; or
  • entering into a trust deed with his creditors.

Section 27 also sets out the position in respect of companies. Companies become insolvent on:

  • the approval of a voluntary arrangement; or
  • the appointment of an administrator; or
  • the appointment of an administrative receiver; or
  • going into liquidation.

The effect of a Premises Licence lapsing is that there is no Premises Licence to speak of and so any Licensable Activities (sale of alcohol, late night refreshment, and regulated entertainment) cannot be provided on or from the Premises that the Premises Licence pertains to.

If one of the triggers for the lapse of a Premises Licence has occurred or is likely to occur it is important to take action as quickly as possible. This is because of the provisions of Section 50 of the Licensing Act 2003, which can, if not properly actioned, lead to the loss of a Premises Licence for good.

Section 50 applies where a Premises Licence has lapsed because one of the events in section 27 has taken place, or where a Premises Licence has been surrendered in accordance with section 28 of the Licensing Act 2003

The basic position is that you have 28 days from the day the Premises Licence lapses to transfer the Premises Licence and “reinstate” it.

Section 50 provides that anyone who could apply for a Premises Licence under section 16 of the Licensing Act 2003 can apply to transfer of the “lapsed” Premises Licence provided:

  • the application is made no later than 28 days after the day the Premises Licence lapsed; and
  • the request to transfer the Premises Licence is requested with immediate effect.

Those who could apply for a Premises Licence, and who can therefore apply for a transfer include:

  • an individual or individuals jointly
  • a company
  • a partnership
  • an unincorporated association
  • a recognised club
  • a charity
  • the proprietor of an educational establishment
  • a health service body
  • a person registered under Part 2 of the Care Standards Act 2000
  • a person registered under Chapter 2 Part 1 of the Health & Social Care Act 2008 in respect of an independent hospital in England
  • the chief officer of a police force in England

who is carrying on, or proposing to carry on, a business which involves the use of the Premises for Licensable Activities, or who is making an application pursuant to a statutory function.

Provided a transfer application is made in accordance with the provisions of section 42 of the Licensing Act 2003 (the correct form used/fee paid etc.), section 50 goes on to say that the “lapsed” Premises licence is reinstated from the time the application is received by the relevant Licensing Authority.

This means that from the time the application is with the council, Licensable Activities can be provided on or from the premises to which the Premises Licence pertains.

It is important to note that if the application to transfer the Premises is rejected or is withdrawn then the Premises Licence will lapse once more.

Finally, it is hugely important to understand that you only get one go at transferring the Premises Licence to reinstate it. A sting in the tail of Section 50 means that only one transfer application can be made to reinstate the licence and if the application fails or is withdrawn, the Premises Licence is gone for good.

Our experience is that financial turmoil can understandably lead to Premises Licences being overlooked. Our view is that it is important to consider the prospective impact of insolvency on Premises Licences because they are a valuable asset. This particularly applies to Premises Licences with generous hours or few conditions, or those within highly sought after Cumulative Impact Areas.

Our top tips for ensuring that your Premises Licences don’t fall victim to lapse and loss are:

  1. Look at who holds your Premises Licences. Is it an individual, company or some other entity?
  2. Assess the likelihood of that entity becoming insolvent. Use a scale of 1 to 10 (1 being extremely likely and 10 being not likely at all) if that helps.
  3. If it is likely, or there is a chance that the entity will become insolvent, start taking steps to protect your Premises Licences immediately. Don’t wait for insolvency, get ahead of the curve.
  4. Identify a “safe pair of hands” – a person, company or other entity that can become Premises Licence Holder. You really have next to unlimited possibilities in that regard
  5. Draft (or ask us to draft) Consent to Transfer Forms giving permission to transfer the Premises Licences from A to B in readiness for potential applications – there is no harm in being prepared
  6. If the worst has happened and one of the trigger events in section 27 has occurred. Don’t panic. You have 28 days to transfer the Premises Licence to reinstate it
  7. When making a transfer after an insolvency it is not necessary to submit a Consent to Transfer Form however, be aware that Licensing Authority’s may ask to see some evidence of the insolvency in order to process the transfer

At Woods Whur we are here for you through the good times and the bad. If you are concerned about this or any other issues arising out of the current COVID-19 crisis, please do give us a call and we will do what we can to help and advise you.

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Our Top 5 Silly Licensing Conditions

Things are really tough out there at the moment and my colleagues at Woods Whur have looked at some of the pressing issues currently being faced.

At times like this it is important that we all pull together and help one another get through, there are lots of examples out there on social media and in the news.

It is also important in periods such as these to remind ourselves of the lighter side of the sector we work in and to try to find some humour where we can.

With that in mind we have put together a list of our top 5 silly licensing conditions.

**Switches on Pick of the Pops Music**

Coming in at number 5 we have No Boogie Wonderland with “there shall be no dedicated dancefloor.”

An odd condition this that really achieves nothing at all. What is a “dedicated dancefloor” when it’s at home? If only this was imposed at Elstree Studios we could get rid of Strictly Come Dancing for good!

That is closely followed at number 4 by “the DPS shall be at the premises at all times the premises are authorised to be open” by Night & Day.

This actually appeared on a 24 hour premises licence in London effectively requiring the imprisonment of the DPS within the venue forever.

At 3 are The Doors with “All doors and windows shall remain closed during regulated entertainment.”

When is a door not a door? When it’s ajar! The oldies really are the best and clearly nobody considered what would happen if a customer needed to make use of a door! And not just any door – ALL THE DOORS!

It was a close run thing for number 1 spot this week and flying in at number 2 is “there shall be no vertical drinking” by Harry and the Horizontal Drinkers.

This condition has always baffled slightly when there are other ways of achieving the same aim; ones that don’t place the power of whether or not a premises licence holder commits a criminal offence squarely in the hand of the customer. Stand up and finish your drink and you might finish off the premises!

And finally pop pickers, our number 1 silly condition is “customers will be local people” by The Yokels, which is the follow up to their previous hit “you’re not from around here are you?”

There’s our top 5. There are many, many, more and we’re always delighted (and secretly disturbed) to hear new examples.

Putting our serious hat back on what all of these aberrations highlight is the need for thought and clarity when drafting licence conditions. The Section 182 guidance (1.16) is very clear on the do’s and don’ts of licence conditions. We would add the following bullet points to 1.16:

  • Shouldn’t be cut & paste from the applicant’s operating schedule;
  • Shouldn’t try to be too clever; and
  • Should beware the law of unintended consequences.

What do we mean by this?

Well, take the example of the “locals” condition above. This has clearly been lifted from section M of an applicant’s application form. It’s not a condition, but rather an aspirational statement.

The condition about doors is a condition that is trying to be too clever, but no thought has been given to how customers are to get into and out of the premises. More importantly the condition doesn’t define which doors so, as silly as this sounds, it could apply to the fridge or the dishwasher in the same way it applies to the entrance to the premises!

Finally, the condition about the DPS being on the premises forever is an example of the law of unintended consequences. It is clear that what the condition wants to achieve, but what it actually achieves is permanent tethering to the premises! And we thought DPS’ had it tough already!

If you need help drafting effective conditions, whether you are an operator or a licensing authority, we are but a phone call away.

And don’t forget, if you have concerns about any conditions on your licence, silly or not, and your ability to comply with them then talk to us. It could be that they are not enforceable, not legal or not relevant to your style of operation. We might be able to remove them, even by a simple minor variation, and modernize your licence.