A court had to consider this question in the recent case of Mitchells & Butler Ltd v Dundee City Licensing Board.
A pub in Dundee provided students with discount cards allowing the purchase of alcohol at a cheaper price than normal. The local Licensing Board decided this contravened one of the mandatory conditions of the pub’s licence, namely that the price of alcohol sold on the premises should not be varied within 72 hours. This condition is in accordance with the Licensing (Scotland) Act 2005 (2005 Act).
The Licensing Board took the view that the pub was embarking upon a promotion along the lines of a “happy hour”. Given one of the purposes of the 2005 Act is to discourage binge drinking, the Licensing Board felt that the pub should not have allowed students to buy alcohol more cheaply. Selling the same drinks at two different prices at any one time amounted to a “variation” within 72 hours, according to the Licensing Board.
On appeal, the Sheriff Principal at Dundee agreed with the pub that having two different prices at one time is not a variation under the 2005 Act. On the basis the different prices remain constant for 72 hours, the pub has not breached a condition of its licence. The Sheriff was conscious that many premises have, say, a bar area and lounge area with different pricing scales for the same drinks.
If the pub in this case had been held to have breached its licence, then any licensed premises with different prices for the same product may have been in breach of their licences also. Fortunately for licencees, alcoholic drinks may have more than one price attributed to them, so long as those prices remain constant for 72 hours. We simply must watch this space to see whether or not this decision is appealed further.