« Previous | Contents | Next »
Listen
A REPORT BY THE TASK GROUP SET UP TO REVIEW THE LICENSING PROVISIONS CONTAINED IN THE CIVIC GOVERNMENT (SCOTLAND) ACT 1982
10. SECTION 42 - LATE HOURS CATERING
This part of the Act provides licensing authorities with an optional power to license late night catering establishments which wish to open between 11pm and 5am. The provisions also specify conditions which licensing authorities may attach to such licences, in addition to their general powers to do so, and specify the circumstances when establishments are exempt from any licensing requirement.
10.1 The Task Group consider that there is an ongoing need to regulate Late Hours Catering establishments given that large numbers of people can congregate outside such premises late at night, with the potential for public order and public safety concerns. However, we recognise that the need to do so does vary between licensing authority areas and therefore the power should remain optional.
Conclusion
The Task Group concluded that there remains a need to have a licensing regime in place for late night catering establishments and that it should remain an optional activity.
10.2 We also considered whether an exemption should be granted to 24-hour shops and garages from the provisions on the grounds that the sale of meals and refreshments is incidental to their main business. We rejected this, and considered that the confusion arose from the different interpretations which local authorities place on "meals and refreshments". Consequently, we sought views through our consultation on whether a legislative definition of meals and refreshments is required, and, if so, what that definition should be. The majority of respondents agreed that a definition would be helpful, albeit there was no consensus as to what this definition should be. The Task Group took the view that the principal justification for licensing such premises related to the potential for large numbers of people leaving pubs, night clubs etc. late at night to cause a disturbance, and that this potential exists regardless of whether the food or drink being sold has been cooked or pre-prepared in any way. As such, we considered that licensing authorities should have the option of licensing all such premises if they consider it necessary to do so. In view of this, we concluded that the phrase "meals and refreshments" should be replaced with "food or drink" and that it would be better to rename this section "late hours food and drink provision" to reflect this.
Recommendation
The Task Group recommend that the words "meals and refreshments" at Section 42(1) should be replaced with the phrase "food and drink" to ensure that licensing authorities have the power to license any premises selling food or drink at late hours. The Task Group further recommend that this Section be renamed "Late Hours Food and Drink Provision".
10.3 The Task Group also sought views as to whether there was a requirement to amend the exemption for liquor licensed premises at Section 42(4)(a). Currently, any premises which holds a liquor licence under the Licensing (Scotland) Act 1976 is exempt from the requirement to hold a licence to sell meals and refreshments at late hours. A problem has arisen whereby this is being interpreted as allowing liquor licensed premises to operate a carry-out food business throughout their permitted opening hours. The 1976 Act does not enable control of any undue public nuisance or potential public disorder resulting from the operation of such a business as it is concerned only with controlling public nuisance or threats to public order and safety resulting from the sale or supply of alcohol. The current exemption therefore enables liquor licensed premises to evade the licensing requirements placed on non-liquor licensed premises conducting a takeaway food business. A clear majority of respondents supported our recommendation that the provisions be amended to restrict the exemption to the sale to, and consumption by, the public of food and drink for consumption within the premises.
Recommendation
The Task Group recommend that the exemption for liquor licensed premises from the licensing requirement at Section 42(4)(a) is amended so as to exempt only the sale to, and consumption by, the public of food and drink within the premises.
10.4 In responding to the Task Group's consultation, the Association of Chief Police Officers in Scotland (ACPOS) noted that they have encountered enforcement difficulties in relation to late hours catering establishments taking orders for food right up until their specified closing time, and thus continuing to serve food beyond that specified closing time. ACPOS asked that clarification be given to the fact that the closing time specified in a late hours catering licence refers to the time at which the premises must close, not the time at which they must stop taking orders for food. We took the view that this could best be addressed by local authorities introducing it as a condition of licence.
Recommendation
The Task Group recommend that to address this concern licensing authorities make it clear in their conditions of licence that the premises should be empty of customers by a specified time.
« Previous | Contents | Next »