New Mandatory Conditions – Licensing Act 2003

Three new mandatory conditions came into force on the 6th April 2010. These mandatory conditions apply to every premises licence in England and Wales; and although they will not appear physically on each individual licence they still apply.

These are the first three of a total of five new mandatory conditions being introduced in 2010; the last two are due to be introduced in October.

As with any new legislation, the government has published guidance to help people interpret the meaning and give some insight into enforcement. However guidance is not legally binding and until such time and test cases start to occur and rulings are given, we can only provide opinion on the new conditions.

The first two conditions are relatively straight forward:

 

1. The responsible person must ensure that free potable tap water is provided on request to customers where it is reasonably available on the premises.

The guidance suggests that by ‘reasonably available’ it means at almost all times; the example they give for water not being ‘reasonably available’ is when the mains supply is temporarily unavailable due to a broken mains supply.

What might be more contentious is what constitutes a ‘customer’? Presumably a customer is someone who pays for a service or product. If someone walks in off the street sits down and asks for a drink of water are you obliged to provide them with potable drinking water? I would suggest they are not a customer, but unless it is causing a real problem it may be just as well to allow it rather then becoming a ‘test case’…

 

2. The responsible person must ensure that no alcohol is dispensed directly into the mouth of another person.

This condition has been added to prevent the mythical ‘dentist chair’, but also prevents such activities as free pouring from bottles directly into the mouth or the use of water pistols filled with cocktails being squirted into the mouth of another person.

As much as it is the responsibility of the Designated Premises Supervisor to prevent staff taking part in these activities, they must also prevent customers taking part in activities which contravene these regulations.

There is one sensible exception to this condition and that is when an individual is unable to drink without assistance due to disability.

 

The final condition is the most ‘controversial’ because of the potential for ‘interpretation’ and the one which requires further clarification to take place before we can definitively say what will and what will not be permitted.

 

3. The ‘Responsible Person’ should be able to demonstrate that they have taken all reasonable steps to ensure that staff do not carry out, arrange or participate in any irresponsible promotions.

An irresponsible promotion is one which undermines any of the licensing objectives and encourages people to drink more (on the premises) than they might ordinarily do and in a manner which does not promote the licensing objectives.

So what sort of promotions might be considered ‘irresponsible?

The guidance sets out a number of examples, but this is far from a prescribed list and it specifically mentions that ‘substantially similar’ promotions would also fall under this condition: 

  • Drinking Games – which require or encourage individuals to drink a quantity of alcohol (or as much as possible) within a time limit.
  • Large quantities of Alcohol for Free or a Fixed Price – this prevents promotions such as a fixed entry price allowing ‘all you can drink’.  However this also covers unlimited or unspecified quantities of alcohol free or for a fixed price being offered to a particular group of people defined by a particular characteristic (which makes them more vulnerable or more likely to be involved in crime and disorder as a result of the consumption of alcohol).
  • Prizes and Rewards – The sale or supply or provision of free or discounted alcohol or any other item as a prize to encourage or reward the purchase and consumption of alcohol over a period of 24 hours or less.
  • Sporting Events – providing free or discounted alcohol in relation to a sporting event shown on the premises which depended on the outcome of a race, match or other event.
  • Posters & Flyers – sale of alcohol in connection with posters or flyers which are considered to condone, encourage or glamorise anti social behaviour or refer to the effects of drunkenness in any favourable manner.

The definition of an ‘irresponsible promotion’ is still one which undermines the licensing objectives and as such these activities are still theoretically permitted if they do not undermine the licensing objectives. It is not until we see the outcome of some test cases which will allow us to give a clearer idea of the interpretation of when the licensing objectives are undermined.

We always advise our clients to try and not become the ‘test case’ but rather wait it out. My feeling is that it will be relatively easy to demonstrate that those promotions mentioned above will undermine one of the licensing objectives and the guidance suggests that this is certainly going to be the case where promotions target more ‘vulnerable’ sections of the community. These sections of the community have already been identified to include students, women and under 25’s amongst others.

As with all the mandatory conditions they apply to all premises licences and club premises certificates but not to temporary event notices.

The interpretation of the guidance is going to be all important and individual licensing authorities are likely to have very varied interpretations. If you think any of your activities are stepping close to the line then I would suggest a quick call to a licensing officer to test their interpretation might be a sensible approach and permit you to move forward with a little more confidence.

 

Source – Beyond The Blue 

Date – 7th April 2010

Submitted by – Peter Mayhew