8 Dec 2020
Letter of Advice – The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020
The Government announced that the current national restrictions will be replaced on 2nd December with a regionally-differentiated approach, where different tiers of restrictions apply in different parts of the country. Restrictions for the hospitality sector vary according to tier.
There are 3 tiers for local restrictions:
· Tier 1: Medium alert
· Tier 2: High alert
· Tier 3: Very High alert
It is right to target the toughest measures only in areas where the virus is most prevalent and where we are seeing sharper increases in the rate of infection. St Albans City and District Council (and the rest of Hertfordshire) has been placed into Tier 2, we have been told this will be kept under regular review.
Hertfordshire is currently in tier 2 and this will be reviewed in 14 days, in accordance with the legislation.
Closed businesses – Schedule 2, Part 2 of The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 sets out Businesses that should close:
(d)any other venue which—
(i)opens at night,
(ii)has a dance floor or other space for dancing by members of the public (and for these purposes members of the venue in question are to be considered members of the public), and
(iii)provides music, whether live or recorded, for dancing;
(e)sexual entertainment venues;
(g)any business which provides, whether for payment or otherwise—
(i)a waterpipe to be used for the consumption of tobacco or any other substance on the premises, or
(ii)a device to be used for the recreational inhalation of nicotine or any other substance on the premises.
(2) A business or service does not fall within sub-paragraph (1)(b), (c) or (d) if it ceases to provide music and dancing.
What this means and what you can do
The premises listed in section 9(1)(a-g) cannot open. However, section 2 provides an exemption, so that., dance halls, discotheques, and any other venue which opens at night, has a dance floor or other space for dancing by members of the public (and for these purposes members of the venue in question are to be considered members of the public) and provides music, whether live or recorded, for dancing, can open if it ceases to provide music or dancing.
This regulation also prohibits any Shisha premises (or similar business) from being open.
Restricted Businesses – Schedule 2, Part 3 of The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 sets out businesses that are restricted.
The provisions require all restricted businesses to close between 23:00 and 05:00. They can accept orders for food and drink for consumption on the premises between 05:00 and 22:00. This allows a premises to have an hour drinking up time. This applies to bars, pubs, restaurants, cafes, social clubs, as well as bowling alleys, cinemas, theatres.
To sell food and drink for consumption on premises, businesses must:
· ensure customers are seated throughout – from ordering, to being served and at all times when consuming food and drink [there are exceptions for such businesses as theatres and cinemas allowing food and drink to be sold to be consumed in the seated viewing area].
· only serve alcohol as part of a table meal. This is defined as a meal eaten at a table or counter, consisting of a meal expected to be served as breakfast, main midday or main evening meal, or a main course of one of these meals.
A table meal must be breakfast, main midday or main evening meal, or a main course of one of these meals and served on a plate (or would be reasonably expected to be served on a plate if service in boxes). The table meal would need to meet the requirement set out in case law, Timmis v. Millman 1965:
“the Justices found the sandwiches the pair were eating ‘were so substantial, and assisted by the pickles and beetroot so as to justify that it was a table meal and not a mere snack from the bar”.
This means that smaller snacks would need an accompaniment to be a table meal. Examples of a snacks requiring an accompaniment include, but are not limited to, sandwich, sausage roll, scotch egg and similar small snacks.
Any alcohol would need to be served as “part of the meal”. The government have set a drinking up time of 1 hour (premises last orders at 10pm everyone out by 11pm); we see this as a good indication that this is an acceptable time to finish up a meal. As such we would deem “alcohol as part of a meal”, to be alcohol sold during the consumption of a table meal and within 1 hour of the finishing of a meal (finished eating the food provided as part of the table meal). We would not consider alcohol sold beyond this to be “part of the meal”.
Premises are permitted to provide food and drink for consumption off the premises, between 23:00 and 05:00 providing that orders are made by pre-order by:
· website/ online
The orders must be provided by delivery; a click and collect style collection or drive through (or other collection method where the purchaser does not leave their vehicle).
Premises are only permitted to book a single household, including linked households, indoors and groups of 6, from any household, outdoors.
There are exemptions where a restricted business is a cinema, theatre, concert hall or sportsground which means that alcohol can be sold to customers that have purchased a ticket to view the event, performance or sporting competition. The alcohol can only be consumed in the viewing area. This exemption does not apply to catered corporate boxes.
Cinemas, theatres, concert hall and sportsgrounds can complete a performance started before 22:00 after 23:00.
sportsground means any location in which elite sports training or competition takes place for the purpose of, or for purposes which include the purpose of, entertaining spectators;
The obligations mentioned in previous advice letters, such as NHS QR code, track and trace, keeping people seated and ensuring people wear face masks are still in effect.
At the end of this letter I have provided some frequently asked questions and answers; if you have any other questions please feel to contact us.
The Government have announced that Local Authorities will be able to provide a package of financial support to pubs during December, we are currently awaiting guidance on what help will be available. Please keep checking our website for details. Pubs and Restaurants are also entitled to non-repayable grants of either £1334, £2000 or £3000 for November. If you have not already done so you can apply for this money via www.stalbans.gov.uk/business-and-licensing
I know these are hard times; I want to thank you for all the hard work you have done. Overall compliance in the district has been very good.
You can find the legislation in full at: https://www.legislation.gov.uk/uksi/2020/1374/contents/made
Guidance can be found at: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/restaurants-offering-takeaway-or-delivery
and performance guidance: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/performing-arts
If you have any questions please feel free to contact us.
Yours faithfully: Daniel Pattenden Senior Licensing Officer
Questions and Answers
In this section I aim to deal with some of the common questions I have been asked leading up to these regulations. All of these questions have been reviewed by the Legal Team.
Q. What is a substantial meal?
A. This is by far the most common question. While the guidance talks about a substantial meal the legislation does not, it refers to a table meal. I have set out above the Council’s position on this.
Q. How long after a meal can we still serve alcohol?
A. I have set out above the Council’s position on this matter. I would ask that premises be sensible; it is certainly not the intention of the Regulations to allow drinking to continue long after a meal has been consumed.
Q. Can work parties or business meetings happen and be bigger than a single household?
A. No there is no exemption that would allow this to take place. While there is a work place exemption in general with regards to gathering indoors, it talks about that gathering being “reasonably necessary”. It is the view of this authority that it is not necessary to host a “work lunch”. As such we would view it to be in breach of the Regulations.
Q. What is a linked household/support bubble?
A. The legislation definition for this is a long one. It is defined regulation 3, which states that a linked household can be formed with any household that consists of a single adult; one or more children and no adult; a single adult and any number of children under 18; one or more adults and a child under 1; persons with disabilities and those that require care. It is any of the former linked to another household of any number of individuals. This is a “Linked Household”, referred to as a “bubble” in some Guidance.
Q. I have a marquee/dining dome, what is considered outside?
A. The only legislation that defines ‘outside’ is the Health Act 2006, under a smoke free premises. We will us this definition to establish what is outside. A building or structure with a roof/ceiling, whether permanent of temporary (marquees/dining domes), that is 50% open. For the purposes of deciding what is open, doors, windows and temporary walls that can be closed will be considered shut.
Q. Can I open and serve more people between the 23rd and the 27th December?
A. In this period (Christmas period in the Regulations), households can link with 2 other households. As such you would be able to book tables (provided we are still tier 2) for the group as a whole. However you must satisfy yourself that they are a 3 households.
Q. How can I tell what is ‘a household’?
A. This is not a simple matter; we understand that this could cause confrontation. What we would advise is if the group looks like it’s a single household (and linked household), then it likely is. However, if it is a group of individual of similar age, or doesn’t feel like a single household and (linked household), then you are well within your rights to ask for identification and refuse entry if they fail to satisfy you they meet the criteria. They do not have to show identification, but it is no different to when you have to challenge a person’s age.
Q. On Christmas day, can we open and sell a drink without food like we do every year?
A. We understand that taking a walk after Christmas lunch and popping to the local for a quick drink, is a common thing on Christmas day. Unfortunately, whilst in tier 2 this would not be able to happen. The law set out in my advice above would prohibit this from happening. If this changes or an exemption is put in place, we will advise you.
Q. Can we host outdoor events?
A. Outdoor music events can take place, however, these must follow the rules for outdoors. This also follows the same rules as previous regulations, including, but not limited to, risk assessments; correct spacing between qualifying groups; ensuring persons are seated and ensuring persons are wearing masks.
Q. I have never sold food before do I need to do anything?
A. From a Licensing standpoint, you do not need to do anything. However, if you are not food registered you will need to register. This information can be found on our website: https://www.stalbans.gov.uk/food-safety