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Morning Briefing for pub, restaurant and food wervice operators

Wed 8th Dec 2021 - Legal Briefing

Preparations for the Christmas spirits by Jon Wallsgrove

It has been a rollercoaster of a year for hospitality, full of challenges and uncertainty, but also one of adaptation and recuperation. As we reach the end of 2021, we remind you of the importance of protecting your businesses legally by overseeing best practices at your venues, particularly regarding due diligence.

The industry took on more innovative strategies during the covid restrictions and utilised new technologies in the delivery market. This meant many businesses could stay afloat, even with their doors shut, for such a long period. Once the sector was able to reopen, many operators saw an impressive surge of income during the summer which was even on par with pre-pandemic levels. Customers made the most of their long-awaited freedoms and revelled in staycations. While this was excellent progress, these scenarios brought legal challenges to the business.

The sale of alcohol online brings the significant difficulty of ensuring that it is not sold to a minor. I am aware of two studies that clearly highlight the problem at hand. Serve Legal (who carry out test purchases for numerous operators) concluded that only 41% of the sales made online during their investigation showed that ID was requested at the door if the customer looked under 21. The other is a study by the Trading Standards Institute regarding the sale of knives online. While this is not specifically in reference to alcohol, it remains relevant as only half their tests were passed using purchases where the customer was under the age of 18.

Interestingly, there are currently no specific regulations for selling alcohol online. However, it may be on the way given the House of Lords recommended it in their review of the Licensing Act. Trials for consumer digital ID age verification are to begin in 2022, which could be used both as a method of authentication in person as well as during online purchases. This could be a helpful tool and solution to the issue if it proves successful.

In terms of an online purchase – whether via a website, social media platform or app – the sale of alcohol occurs when the drink is appropriated to the contract. For example, when the alcohol is poured for a specific customer during a face-to-face scenario or set aside for delivery after being ordered online. Responsible authorities have focused on the age verification process being conducted during the “delivery” stage as it is currently too difficult to do so before being presented with the drink. Enforcement agencies accept that such measures would be considered best practice and in turn constitute as a due diligence defence, and thus avoid prosecution if an under 18 had managed to purchase alcohol.

If you have decided to expand your trade online, it is important that you have a clear age challenge policy and staff training in place. Customers who appear to be under 21 or 25 should have appropriate ID checked, and refusals must be recorded to uphold due diligence. It is also vital to consider what measures need to be in place to protect yourself legally. With the festive period in full swing and celebrations climbing to their peak, it is worth remembering that following the end of lockdown, the public’s new-found freedoms meant an increase in noise complaints. We have seen a rise of enforcement action from environmental health in the arenas of both noise abatement notices and reviews of premises licences. 

Naturally, residents had experienced a significant period of peace and quiet during lockdown. When hospitality re-opened, noise levels that were previously accepted and tolerated were now causing annoyance. With a fantastic festive trading period just around the corner, I strongly recommend that venues review their policies on noise nuisance to avoid any legal trouble and support their community. Have a think about whether you have covered all bases – including music levels, customers in beer gardens and smoking areas – and dispersal procedures at the end of the night. Consider how you log complaints and whose responsibility it is to deal with them.

In the event you do get contacted by an environmental health officer, it is imperative to engage with them from the start. It is rare for enforcement action to occur immediately, and it generally follows several warnings, meaning you have a chance to evaluate and respond. It is important to get your side of the story on record straight away and test the seriousness of the complaints received. If you are served a noise abatement notice, you have 21 days in which to lodge an appeal where you can put forward the grounds that there was no nuisance, or that you used best practicable means to avoid the situation. If you find yourself in this scenario, it is worth seeking legal guidance as well as expert technical advice from an acoustic specialist to try to improve the soundproofing of your venue.

Finally, remember it is not too late to make the most of the festive season and apply for extended hours with a temporary event notice. You can request a notice up to ten clear working days before the event, or five clear working days for a late notice. John Gaunt and Partners wish you the absolute best Christmas and new year. May your tills ring merrily with an abundance of payments, and let us wish for a fulfilling and prosperous 2022.
Jon Wallsgrove is a partner at John Gaunt and Partners

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