By Nicola Smith, a Director Specialising in Licensing and Food Law at Squire Patton Boggs
17 May 2021 was a milestone moment for many hospitality premises, permitted to open their doors to customers indoors once more, albeit with a “heavy dose of caution”, but also with hope of the (final) end of enforced closures. Bringing staff back off furlough, recruitment, training and ordering stock according to anticipated demand are all challenges as we travel through the roadmap, but there are also challenges with keeping up to date on regulatory responsibilities.
First, there are, of course, ongoing restrictions under health protection regulations affecting customers, currently including social distancing, mask wearing, COVID-19 signage and QR posters, and maximum group sizes (currently gatherings of up to 30 people are permitted outdoors and gatherings of up to six people or two households of any size are permitted indoors). Breach of these requirements might result in prosecution or closure, or indeed review of an operator’s premises licence (for example, on the grounds of failing to promote public safety).
There are also “workplace guides” from the government, with a specific guide covering people who work in or run restaurants, pubs, bars, cafes or takeaways. This guidance covers the requirement to carry out a suitable and sufficient COVID-19 risk assessment, identifying control measures to manage that risk.As part of any such assessment, you should think about elevated risks associated with planned entertainment (such as the possibility of greater transmission risks with raised voices and singing if background music is loud), as well as the service of food and drinks. Local authority officers and police can request a copy of your COVID-19 risk assessment.
However, you should also revisit your other risk assessments to consider whether other measures may be required to address risks that may arise from new ways of working and measures put in place in response to COVID-19. For example, consider whether different table placement could impact upon fire escape routes, or whether potentially reduced staff numbers will affect the availability of adequate first aid provision.You may also need to assess any potential risks to health and safety, in consideration of matters such as lack of maintenance and hygiene/cleaning during a period of closure, expired safety certification and/or overdue inspections or tests. In particular, if the water system has been inactive, you may wish to carry out legionella testing.You may also want to check for pest damage and make arrangements for pest control visits.
Finally, it is important to remember and refresh staff understanding of licensing requirements that existed before the pandemic hit and are still crucial to the successful operation of licensed premises. Considerations could include:
• If you will continue to provide a delivery service of food and alcohol in addition to service on the premises, remember that long term your licence needs to cover you for sales of alcohol for consumption “off ” the premises, as well as “on” (the current automatic ability to provide off sales if you are licensed for on sales, in most circumstances, is due to expire on 30 September 2021). Check if you have differ- ent/restricted hours for “off sales” that would apply to any takeaway or delivery services.
• Remember that if there is no designated premises super- visor (DPS), there is no authority to sell alcohol.Therefore, if you have made redundancies, or if some staff have not returned from furlough, you may need to make an applica- tion to name another personal licence holder as DPS to allow sales to continue.
• Keep under review the number of employees who are personal licence holders (in each premises, where you oper- ate multiple premises/venues) to ensure proper supervision of alcohol sales.
• During any period of closure, annual fees will still have fallen due for payment on the anniversary of the original grant of the premises licence. If annual fees are not paid, they are recoverable as a debt, and licensing authorities are required to suspend premises licences for non-payment (which would remove authority for sales of alcohol/other licensed activities).Therefore, check payment has been made and/or is scheduled.
• Check your licence conditions and assess whether you can still comply. Some conditions require minimum numbers of personnel at certain times (for example, door supervisors, stewards and/or personal licence holders).There may also be requirements for refresher training periodically, for example, every six months.
• Reminding staff of the requirements under licensing laws and your proof of age policy, and tracking such training, can be an important protection for you if you want to demonstrate that you had reasonable precautions in place to prevent an offence being committed.
• Consider liaising with your neighbours to keep them up to date with your plans for reopening.You may need to address elevated noise levels from an increased use of out- door areas over recent weeks, and it is a good idea to pro- vide contact details so that residents can contact you directly if they experience unreasonable disturbance.
• Check CCTV is working and in accordance with any relevant licence conditions. Monitoring CCTV coverage can be important for the effective supervision of customers.
Having in place a checklist of issues that may be relevant for regulatory purposes as we come out of the pandemic should help to ensure a successful transition to reopening.
