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Wed 13th Oct 2021 - Legal Briefing

Back to basics in the aftermath of covid by Patrick Robson

Although life without covid is far from over, the industry is thriving within the recent sense of normality. As a legal practice specialising in licensing, we have found that requests for advice associated with covid compliance matters are now drastically on the decrease. Similarly, covid-associated enforcement action is also dwindling due to the termination of burdensome regulations. We all have our fingers firmly crossed that Boris’ plan B never comes to pass and covid compliance issues don’t rear their unwelcome heads again.

However, as with all things, resources being freed up in one area means they are redistributed to another. We are now seeing a sharp rise in enforcement-related matters on more “traditional” grounds. During the pandemic we quite often received a pragmatic approach from the authorities – who acknowledged the strain that businesses were under, the complex nature of some of the licensing conditions in place at the time and the bigger picture of achieving social distancing.

For example, late-night operators will usually be required to deploy door staff from a set time on weekends, often about 9pm. Back during the controversial 10pm curfew for licensed venues, was it fair to enforce such a condition just to send the bouncers home around an hour later? Absolutely not – and many enforcement officers thankfully turned a blind eye to whether the correct amount of door staff were on duty for that time or not.

Previously, there was a strong incentive for hospitality services to move outdoors in hopes of reducing covid transmission rates, so pubs made good use of external bars, sometimes without the correct permissions in place. During this time, certain authorities made the decision to not take enforcement action. While this was appreciated, I don’t believe it would have been the case pre-pandemic – and indeed, many external serveries still in use need to be brought into licensed areas now.

With the more relaxed enforcement approach to non-covid matters coming to an end, operators need to be on their guard over compliance. We have seen a return of local authority letters robustly highlighting that even the smallest of condition breaches are criminal offences that may lead to prosecution and imprisonment. For example, failing to display a notice reminding customers to be quiet when leaving the premises triggered a very strongly worded letter from a licensing authority rather than a simple warning.

Such responses feel rather disproportionate, especially when remembering that until recently, venues may have had exit points as access-only points to accommodate covid-safe one-way systems, and the failure to have the proper notice up could just be a small oversight.

It is a good time for operators to review the necessity of their door staff and decide if their arrangements need amending, particularly the number of bouncers and days/times of their deployment. Currently, this is an increasingly acute issue due to the scarcity of trained door staff. This shortage does prove a problem to the industry, but unlike the petrol crisis, we cannot simply call on the army like the government can.

Being on the ball in terms of staff training is always of great importance, whether this is part of your specific licence conditions or not. With current staffing levels still under a great deal of strain, a more transient workforce may become the norm for a while. Are you fully training all your workforce as your conditions may require? Are they sufficiently trained from a due diligence perspective to avoid offences such as serving alcohol to a minor? If they make a mistake, is your due diligence defence the best it can be?

When considering training and day-to-day operations, it is worth keeping in mind the four licensing objectives, particularly regarding public safety. Recent discussions surrounding the higher risk of sexual violence women and other communities face has brought forward more considerations about what the industry can do to ensure safety within their venues. For example, campaigns such as “Ask for Angela” are an important measure that operators can consider adopting to provide customers with additional support.

People who feel unsafe, vulnerable or threatened can discreetly ask for help by approaching venue staff and asking them for “Angela”. A trained employee will then assist them with the next course of action, whether it be organising a lift home, contacting the police or alerting door staff. With drink spiking also notably on the increase, operators should consider creating formal policies and roll out staff training to tackle this terrible crime – and can even help address the concern with simple solutions. Some nightclubs, such as the Leadmill in Sheffield, offer to clingfilm peoples’ drinks in order to make it more of a challenge for offenders to slip something into their glass.

An area which we have noticed becoming increasingly problematic is the rise in noise complaints from those living close to licensed premises. Residents have grown used to venues being much quieter than usual due to them either being shut, closing earlier or operating at a reduced capacity for the majority of the last 18 months. Accordingly, the full opening of venues appears to have come as a bit of a shock for those who had adjusted to the tranquillity.

These complaints are not just regarding music, but also the noise from customers when they depart later in the night. Due to the increased sensitivity of residents, premises could consider reviewing their dispersal policies to encourage customers to cause as little disturbance as possible when they make their way home. Wind-down periods, supervision at points of egress and providing taxi service contact details in the venue should all help reduce the disruptions.

Even though we are all thrilled to be getting “back to normal”, just be mindful that licensing enforcement resources will be on the rise as covid regulations diminish. A pre-pandemic level of compliance will be expected from the authorities, and the noise sensitivity of residents is likely at its highest level for years. It is important to remember the basics to ensure we are providing customers with excellent service, working with our communities to guarantee safety and comfort and safeguarding our businesses by following the licence conditions and objectives.
Patrick Robson is a partner at John Gaunt & Partners

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