Isn’t it time we reopened beer gardens? - Kuits Solicitors Manchester

Isn’t it time we reopened beer gardens?

Isn’t it time we reopened beer gardens?

1st June 2020 - Published by Kuits licensing team

Last week, licensing associate Rebecca Ingram examined the legal and practical considerations relating to licensed premises selling alcohol for consumption off the premises, and flagged some of the potential issues for operators, in the article off sales and consumption in public spaces – what should you consider?

These issues will continue to present themselves, and in all likelihood will become more acute as the hot weather continues, and the lockdown eases to allow up to six people to meet in public from today.

The current regulations for operators

As detailed previously, the business closure regulations gave hospitality operators two choices – either close completely, or close for consumption on the premises. The regulations specify that any outdoor area adjacent to a hospitality business forms part of the premises and therefore must be included in this closure.

This was easy to implement when there were a limited number of reasons for which members of the public were permitted to leave their homes, and when those reasons did not allow leisure time outdoors, for sunbathing or similar. During that period, it was clear that anything sold for takeaway purposes by a pub, bar or restaurant would (or certainly should) be taken home to be consumed. Those consuming food or alcohol outside in public spaces would clearly have been in breach of lockdown restrictions.

Now, the situation is by no means as clear cut. The restrictions now permit us to spend unlimited amounts of time outdoors, including to have picnics and barbeques. Whilst, until today, this has only been strictly permitted in groups comprising members of our household, or just one person from outside it, the problems that this has (presumably inadvertently) caused are already becoming clear.

Hospitality operators are, understandably, keen to generate revenue where they can, and many of those who are able to do so by virtue of an off licence without relevant restrictions have begun to offer alcohol to take away. They are perfectly legally entitled to do so. Individuals are also perfectly legally entitled to consume alcohol in public (unless there is any Public Spaces Protection Order in place, and provided their behaviour is not troublesome).

Why the current regulations have caused a problematic anomaly

A licensed operator situated near to a public park, beach or square can sell alcohol and customers can, perhaps encouraged by the operator or perhaps entirely against their wishes, consume it in those public spaces. There, they might find themselves in close proximity to other members of the public, who may have brought alcohol from supermarkets, other shops, or from home. It cannot reasonably be the responsibility of the operator to police all members of the public who may gather in the wider vicinity of their premises. Although, some authorities have tried to argue that this is the case, and have on some occasions threatened action against operators where members of the public are gathering nearby. And yet while theses ad-hoc outdoor gatherings continue, operators with external areas are obliged to send customers away from their immediate vicinity, to somewhere further afield, because their outdoor areas cannot be utilised. Indeed, in some instances, operators have to actively usher customers away from their adjacent outside spaces, to ensure that they are not operating illegally.

Why the current situation is unsustainable

Firstly, this is a difficult message to communicate to customers, that they can sit some metres away from the premises in a park, but not on ‘purpose built’ external furniture just next to it. Strangely, members of the public could even purchase alcohol from an open premises with an external area, and then take it and sit in the external area of a nearby premises that happens to have elected to stay closed. This is not hypothetical, we have seen numerous examples of exactly this happening in areas where beer gardens are situated at the front of premises, and those that are closed have not been able to render those spaces inaccessible. It is difficult to communicate, we would argue, because it doesn’t make sense.

Secondly, this causes issues for residents and local communities in areas with attractive public spaces. It means that locals who may wish to use the parks for exercise find them overrun with groups socialising, and often, unfortunately, that littering and sometimes other anti-social behaviour is prevalent. This would not be the case if consumers were contained within delineated external spaces.

Thirdly, it means that alcohol is provided to members of the public who are then entirely unsupervised in terms of the amounts they are drinking and the behaviour they exhibit. As detailed above, this behaviour then cannot necessarily be attributed to any one, or even a group of, premises, particularly if there are mixes of people having bought or brought their alcohol from a mixture of places.

Is there a solution?

If we are allowing socialising and consumption of food and alcohol in our public outdoor spaces, and in private gardens, would it not be better to also allow it in our commercial outdoor spaces? This would remove an illogical distinction between the types of outdoor space, and would allow more monitoring of the consumption and interaction that is taking place. Operators would then be clearly responsible for the consequences of the alcohol they sell, it being consumed in areas under their control and supervision.

Indeed, it would be a risk that operators would need to weigh up before deciding to open up their outdoor spaces, were they to be permitted to do so. They would need to ensure compliance with any relevant licence conditions, and be confident that they could operate with any necessary distancing measures in place. However, arguably, if they have already navigated the operational challenges around providing alcohol to a customer for them to take away in accordance with these requirements, then the only additional hurdles are the access and egress to and from the outside space and the sanitisation of it. Customers might need to be advised pre-purchase that toilet facilities are not available, but again, this is issue is no different in relation to a nearby park or beach, with public toilet facilities on the decline, and in any case closed at present.

Licensed premises are, by nature, regulated and can be monitored. Licensed operators are obliged to uphold the licensing objectives, one of which is public safety. Those licensed operators who chose to open and did not do so, could be the subject of targeted enforcement action. This is significantly more difficult if the consumption takes place in public with alcohol originating from a variety of sources. Operators would be aware of the potential for repercussions if they did not operate any external area well, and, particularly in relation to larger premises, would likely look to employ door supervisors to maintain capacity limits and ensure that customers adhere to any restrictions imposed upon them. Again, this monitoring obviously cannot take place in our public spaces, except by police on occasion that resources allow. Even then, enforcement can only occur if the police can establish that any particular individual is actually doing something that is specifically prohibited.

As such, surely it is better to simultaneously allow for better oversight of our socialising, whilst also allowing businesses that have been decimated by this pandemic to make tentative steps back towards normality?

This won’t be a solution for every premises. In many instances the operation of outdoor space alone would not be profitable enough to warrant opening, and not every premises benefits from outdoor space in any case. However, as with every stage of this crisis, there will always be some winners and some losers. A more common sense approach to this issue may allow at least some hospitality operators, and their staff, to start getting back on their feet – and surely that is better than nothing.

We should be clear that our purpose is categorically not to comment more generally on whether now is the right time to allow groups of people to gather for drinks, picnics and barbeques; or on whether we may find that this easing is reversed in the weeks or months to come. That is a topic upon which we are entirely unqualified to comment. However, the fact is that this easing is now in place, and for as long as it is, the way in which it has been implemented creates an anomalous situation which appears to be unfair on some hospitality operators and may be causing more issues than it solves.

Time will tell whether it will ultimately turn out to be the right decision to allow outdoor socialising at this stage. However, given that it is allowed, is there really any reason for a distinction between opening a can of beer on a park bench and enjoying a cold pint on a picnic table in your favourite beer garden?

If you are in any way unsure as to how best to operate your off sales service, or how any proposal you have may be received by the authorities, contact Rebecca Ingram for advice on 0161 838 8161 or rebeccaingram@kuits.com.

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