Off sales and consumption in public spaces – what should you consider? - Kuits Solicitors Manchester
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Off sales and consumption in public spaces – what should you consider?

Off sales and consumption in public spaces – what should you consider?

27th May 2020 - Published by Kuits licensing team

Since the imposition of the ‘lockdown’ in the UK in response to the Covid 19 pandemic, many hospitality businesses have been considering new and innovative ways to generate revenue, away from their usual business models.

The business closure regulations provided two choices for businesses within the hospitality sector – either close completely, or cease the sale of food/drink for consumption on the premises.

This left it open to hospitality businesses to provide food/alcohol for consumption off the premises, assuming that their licence allowed them to do so. Initially, the majority of operators providing this service were doing so by way of delivery or takeaway for customers to consume at home.

This was (and still is) entirely legitimate, provided that, in the event of selling alcohol, the premises licence permitted off sales with no relevant restrictions.

However, for some, the focus has shifted since the Prime Minister’s address to the nation on 10th May. On this date, we were advised that we would be able to take unlimited exercise outdoors; and spend unlimited time outdoors for leisure purposes – for example, they could sunbathe in a local park or picnic on a beach. This, combined with the fine weather, particularly over the recent Bank Holiday weekend, has led to many members of the public enjoying those leisure activities together with the consumption of alcohol.

Many members of the public will have brought alcohol from home, initially purchased from supermarkets or smaller retailers for this purpose. However, some pub, bar and restaurant operators have sought to capitalise. The question is whether they should be doing so – and in answering this there are both technical issues and wider implications to consider.

What are the potential problems?                                                                                             

The first issue will remain the same, whether the purpose of the sale is for consumption at home or for consumption in a public space. An operator will need to confirm that their premises licence permits the sale of alcohol for consumption off the premises.

The second issue will be whether there are any conditions which restrict that, with a common restriction requiring off sales to be in sealed containers only. This will often be because off sales are envisaged for consumption at home – for example a bottle of wine to be taken away. In this instance, an operator would not be able to provide open containers of alcohol, such as pints of draught beer in plastic cups, to be taken away for consumption in a park. They would therefore need to either refrain from off sales or ensure containers are sealed.

If there were no restrictions however, there would be nothing, from a licensing perspective on the part of any individual operator, to prevent the sale of open containers for customers to consume in the sun in a nearby public space. For many operators, therefore, this may appear to be a very appealing prospect.

Are there any other considerations?

There are a few things that should still be considered.

Firstly, an operator would need to ensure that any outdoor space in which members of the public are consuming is not adjacent to their premises or usually used by their premises e.g. as a pavement café area or beer garden. The business closure regulations specifically included any such outdoor space within the definition of the premises required to close. As such, any consumption within those spaces would be a breach of lockdown restrictions.

This does create a slightly odd situation, in which consumption of alcohol in a small outdoor park some metres away from an operator’s premises is technically permissible, whilst consumption in an operator’s large beer garden is not. However, that remains the requirement at present.

Secondly, some areas are subject to what are known as Public Spaces Protection Orders (PSPO), which can prohibit the public consumption of alcohol and permit the authorities to confiscate alcohol from anyone consuming it. Whilst this may not be directly the operator’s concern (as if they are selling alcohol for consumption off the premises, they are not required to know exactly where it will be consumed), if large groups of people are flouting a PSPO with alcohol from a particular premises, this is unlikely to endear that premises to the authorities.

Are there implications for other stakeholders?

Indeed, thirdly, even if there is no PSPO and the alcohol sale and consumption is perfectly legal, relationships with authorities and potentially local residents should be considered. This will depend on the circumstances. In some instances authorities may have no recourse against you, and you may wish to make this clear and continue with your off sales. In other instances, depending on the way you are trading, they may consider that your operation poses a risk to public safety, and therefore an undermining of one of the licensing objectives. This could lead them to consideration of review applications or use of their closure powers. As such, we would urge caution, and suggest taking advice before proceeding with anything that may be controversial.

You may need to consider what measures you might put in place to address any potential issues with your off sales. For example, if you are seeking to take advantage of your position near a park or beach, and are therefore encouraging customers to purchase from you for consumption there, you should consider whether it may be sensible to litter pick any items left at the end of a day which originate from your premises. This may assist in removing a potential source of conflict with others in the area.

You will also need to carefully consider how you ensure that social distancing measures are implemented in relation to any queues you may attract, and indeed any crowds that might be attracted. Whilst individuals are responsible for their own decisions to congregate in a public space, if your operation has encouraged many to be there, authorities may expect you to take some responsibility for that.

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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