The rise of home delivery and risks to premises licence holders
Home delivery is nothing new in itself. However, the rise in third party delivery services based around apps and the increased deliveries of alcohol, both with and without food orders, are the cause of increasing concern for licensing officers. Licensing authorities are slowly waking up to the implications of home deliveries of alcohol outside of the traditional delivery of cases of wine from specialist shops. In particular, they are turning their minds to where responsibility lies for the offence of selling alcohol to under 18's and how they are going to protect against under age sales via deliveries.
What we are looking at here applies whether you employ your own delivery drivers or engage a third party such as Deliveroo. In the case of 'dark kitchens', where different restaurant's menus are cooked under one roof by the delivery company themselves, the rules apply as if they are a single restaurant (and are licensed to sell alcohol) and have employed their own drivers. Finally, the rules apply as much to home delivery of groceries with a bottle of wine or beer, as it does take-away meals with an alcoholic drinks side-order.
Who is liable for under-age sales?
The first point to note is that it is the premises licence holder, not the driver or the third party delivery company, who makes the sale of alcohol. The reason for this is that the alcohol is deemed to be sold when it is taken from the general stock at the licensed premises and set aside for delivery to the customer- not when it is either ordered or delivered. Forgetting any legal niceties, the easiest way to think of this is that the customer is buying food and/ or drink from the restaurant or shop directly and therefore the sale occurs when you put aside the order for collection by the driver. This is the case even where the order comes from a third party delivery company. The premises licence holder will always be the seller.
That sale is subject to all the conditions on your premises licence, as it would if the person was physically in your restaurant or shop. As such, if you are required to carry out a challenge 25 check on the buyer when they come to you, you will still be liable to do so when you deliver to them. Remember: there is a mandatory condition requiring a premises licence holder to have a policy in place to prevent underage sales so even if you don't have a specific condition (such as challenge 21), you still have to have systems in place to prevent under age sales.
The question then arises: should the check be carried out before the sale (be it online or on the phone), or does a check need to be undertaken when the sale is delivered? The likely answer is both. There is a defence available to a seller where they can demonstrate that they did all they reasonably could to establish the individual's age. There is nothing in law that specifically requires the checks to be carried out before the sale, so this in all probability means that to make use of this defence, as well as checking the purchaser is over 18 at the time of the order, the driver must carry out a check when the alcohol is delivered. Where drivers are employed directly by the seller, this is relatively straightforward- or at the very least, the seller does at least have control over the training given and what checks are expected to be made before the sale and on delivery.
It is not quite so simple where you engage a third party to take the order and deliver the alcohol, but it is still incumbent on the seller to ensure that the company engaged to take orders and deliver alcohol has decent systems in place. The seller should ensure that customers are having their age checked both at the time of ordering as well as when the alcohol is delivered. The company employed to make the delivery should also be able to demonstrate that they train their staff and have a system in place for refusing to deliver alcohol to persons under 18. However, the obligation goes further. Sellers will also need to make sure that the third party delivery company know of any specific conditions applying to your premises licence, such as challenge 25 policies. A seller should look to get all of this in writing in order to demonstrate that all reasonable steps to make sure under 18's do not buy alcohol have been taken.
This brings us back to the council's increasing scrutiny of licence applications for the sale of alcohol where there is likely to be an element of delivery. It is a rule in life that authorities being asked to grant licences to sell alcohol want to feel confident that the applicant knows what they are doing. Therefore, it is better to be able to demonstrate that all the above elements have been considered and the seller knows their responsibilities from the outset. If this is likely to be a significant part of the business, it is also better to propose conditions in advance to demonstrate this knowledge in action, rather than wait for officers or committee members to try to come up with something that might be overly restrictive or worse, prevent the delivery of alcohol altogether.
Top Licensing Tip: The quick audit…
Personal and premises licences contain details likely to change over time. It is an offence not to update your licences when those details required to be shown have changed.
It is never a priority to look at these matters, and so a session of housekeeping on licences can pay dividends. In particular, changes of personal address (or name for a newly-wed) in relation to personal licences or change of company registered address on a premises licence might have been missed at the time. There is a small fee for making the changes, but getting it done now could save a lot of hassle later if it is spotted by the council.
Whilst you're at it, take a look at the conditions on your premises licence and make sure they are all being complied with.
Consultation on age and identity verification underway
The Gambling Commission is currently consulting on changes aimed at 'further protecting children and keeping gambling fair and safe.'
The proposed changes to the Gambling Commission’s Licence conditions and codes of practice would require online gambling businesses to verify:
- the age of customers before they can deposit money or gamble, or access play-for-free versions of gambling games
- the identity of a customer – including their name, address, date of birth and email address – before they are allowed to gamble
- that the name associated with the customer’s payment method matches the name of the gambling account holder.
This consultation is relevant to all remote gaming and betting licensees, and some remote lotteries. The proposals would also affect consumers of remote gambling.
The Gambling Commission are also keen to hear from identity verification solution providers, in particular where they can provide details of technological and information capabilities.
The consultation closes on 27 November. Full details can be found here.