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Underage Test Purchases

Tue 01 Jul 2008

An off licence may be good for business but unfortunately it does not come completely headache-free. As an age-restricted item, it is important that alcohol does not get into the wrong (young!) hands. And in an effort to prevent this from happening, the authorities often send under-age people into stores to attempt to purchase alcohol.

Robert Botkai, partner and head of commercial property and licensing at law firm Winckworth Sherwood, says a failed test purchase is likely to have serious consequences for a number of parties and the authorities may seek to prosecute.

He warns: "The premises licence could be reviewed, and steps open to the Licensing Authority on review include suspension or revocation. The authorities may elect to prosecute the cashier or the personal licence holder who has authorised the cashier to sell alcohol. Some argue that, in addition, the owner of the alcohol (this may or may not be the premises licence holder) may be prosecuted," explains Botkai.

However, if a retailer is charged with an underage sale as a result of the action of another person (normally the cashier) a defence of due diligence may be available.

Says Botkai: "Operators must ensure that they will be able to successfully argue that they have exercised all due diligence. Training procedures must be followed and implemented. All cashiers must be properly trained - particularly to insist on proof of age - and this training must be refreshed on a regular basis. Clear records must be kept, signage must be in place, refusal logs completed and checked. Cashiers must be reminded continually of their responsibilities including the legal and social reasons why sales to underage persons must be avoided. Cashiers should be aware of any licenceconditions and they must be able to explain how they have been authorised to sell alcohol."

However, Botkai accepts that even with the best training, a test purchase failure may occur. "Operators should have in place a procedure that they follow immediately on becoming aware of the failure. This can be vital during negotiations with officers or at a review hearing."

In addition, a premises licence holder can be charged with the offence of persistently selling alcohol to underage persons. At the moment this means three such sales in a three-month period, but the government is looking to change this to two. There is no due diligence defence for this.

But before you get to the problem of test purchasing, for some retailers there is still a struggle to get an off licence in the first place.

"Is a licensing officer insisting that you satisfy him that the store is not primarily a garage?" asks Botkai.

He says that the government's own guidance to licensing officers states that it is for the licensing authority to decide whether to grant the licence or defer granting the licence until the primary use issue is resolved to its satisfaction.

Botkai says Winckworth Sherwood has successfully argued that this guidance is incorrect. "The law provides that a licence application must be granted if there are no relevant representations. The Licensing Authority cannot allow the government's guidance to supersede statute. If an application is rejected or deferred on the basis of primary use, there is no appeal as there was no legal right to reject or defer it in the first place," he explains. It is important to be aware that once a licence is granted, it will be illegal to sell alcohol if the primary use of the store is that of a garage. This applies to all licensed petrol forecourt stores.

Botkai recommends that retailers get legal advice before submitting an application for a new licence as many licensing officers will be reluctant to stray away from the guidance. "Care should also be taken with regard to the wording of licence conditions. Officers often seek conditions not relevant to the licence application and use the application as an excuse to impose restrictions on the store. Such conditions should be resisted."

He adds that his licensing team is constantly in negotiation with officers all over England and Wales with a view to securing licences for petrol forecourt stores with appropriate and reasonable conditions.

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