Off-Sales and compliance with the Health Protection (Coronavirus Restrictions) (England) Regulations 2020
These Q and A’s have been prepared to assist you if you are thinking of providing off-sales during the COVID-19 pandemic. Please make sure you have read the explanation of Regulation 4 at the bottom of this page which clarifies consumption off the premises.
Q: Can I legally provide off-sales in sealed or open containers from my premises – for example a pint of draught beer to take away and consume elsewhere?
A: Yes, if you have the necessary off-sales permission on your licence with no further restrictions. This will be stated on your premises licence and you should check the times and days permitted and review any conditions that might be relevant. NOTE: Any off-sales authorised by a Club Premises Certificate MUST be sold in sealed containers.
Q: Can I provide seating for customers of the business, for the purposes of consumption?
A: No. Seating cannot be made available (and this can include areas not under the control of the premises) and this is not restricted to seating within the premises such as beer gardens and adjoining smoking areas, but would include areas adjacent to the premises which also might include public benches.
Q: If I knowingly allow customers to take alcohol away in open containers for consumption in a seated area as outlined above, is there an offence committed?
A: Yes, this would be a breach of Regulation 4*, which is a criminal offence and a Prohibition Notice could be served, or it could be felt like this was undermining the licensing objectives and a licence review could be instigated.
Q: What if customers take away alcohol and are congregating in the immediate vicinity and consuming their alcohol?
A: It is clear that the intention of the regulations was to discourage any sort of congregation on or near licensed premises. If there are breaches of the regulations or ASB as a result of the above, the premises could be subject to enforcement.
Q: What social distancing measures need to be in place?
A: Adequate social distancing measures should be put in place to protect staff and customers wishing to purchase or collect food/drink from your premises. Consider accepting only contactless payments and consider relevant government guidance.
Q: To what extent am I responsible for behaviour of customers who lawfully purchase drinks to take away, but then congregate elsewhere in such a fashion to be breaching regulations or social distancing guidelines in an area away from the premises?
A: It would be hoped that the premises will take a common sense approach and would promote and encourage social responsibility of customers (as within the existing Licensing Act responsibilities) and it would not be expected that customers are asked to confirm where they intend to take the alcohol to. If, however, off-sales are made in open containers it might be reasonable to consider where the customer is going to consume the alcohol. Enforcement could be both under the LA 2003 and the Coronavirus Regulations.
Q: What about customers who take their drinks whether in sealed or open containers and consume them in an area which is covered by a Public Space Protection Order (PSPO) (controlled drinking zone)?
A: If persons are consuming alcohol in a controlled area under a PSPO, their alcohol can be seized or the person can be asked to dispose of the alcohol. Stafford Borough has active PSPOs in place – see webpage for more information. Consider posters to advise your customers.
Q: What about individual responsibility? –is it right that the premises can be responsible for the behaviour of individuals or groups beyond the premises or adjacent to them?
A: Yes they can be – it will depend on the specific circumstances at the time. While individuals have responsibility for their actions depending on the facts their behaviour could be linked to the premises. As the licence holder, it is part of your responsibility to ensure the Regulations are adhered to. It is also advisable that alcohol is sold in sealed containers, as there would be less risk of individuals or groups congregating and drinking as soon as they have dispersed from the collection point. .
Q: What advice should I give to customers and should I be warning them about social distancing?
A: While customers are attending to collect or order food/drinks, best practise would suggest you have undertaken a risk assessment to consider the issues and in the same way you advertise underage sales policies, you may wish to consider customer messaging as their behaviour could have a direct impact on the premises. You may wish to contact us for some advice/guidance by emailing email@example.com .
In summary, there is no overall prohibition on selling in open vessels. However the sale of alcohol in open vessels is more likely to encourage customers to stay near the premises, and could lead to anti-social behaviour. In the event that customers are allowed to remain drinking in the vicinity of premises the licence holder would need to take additional steps to supervise the outside area in order to deal with problems arising, and would need to do this in order to show they had taken steps to promote the licensing objectives.
However the way to minimise complaints of antisocial behaviour and subsequent prosecution/ enforcement/ review of premises licence would surely be to limit sales of alcohol to sealed vessels – perhaps sealed bottles in cardboard boxes. Premises could also take steps to dissuade customers from consuming the alcohol outside the premises via appropriate signage.
*Regulation 4 states that pubs and restaurants are required to stop selling food and/or drink for consumption on the premises unless exempt under Regulation 4(2). Regulation 4(3) states that: “An area adjacent to the premises of the business where seating is made available for customers of the business (whether or not by the business) is to be treated as part of the premises of that business”. This means that the prohibition includes places where seating is available that are next to or adjoining the premises that sell food or drink and prevents people from sitting or congregating in those areas. This is to prevent consumption taking place in beer gardens, outside seating and other ‘adjacent’ areas.