Section 31 - Variation to substitute new premises manager

70.     This section deals with a change of premises manager in relation to any premises. Licensed premises cannot operate without a premises manager being in post (see paragraph 4 of schedule 3). Where there is a change of premises manager, before the new premises manager can act as such, his or her name needs to be added to the licence. This section allows for the proposed new premises manager to take up post pending the granting of an application to vary the premises licence so as add the new premises manager's name to it. This helps to ensure that changes of premises manager can take effect quickly so as to enable businesses to continue to operate with the minimum disruption.

Section 32 - Further application after refusal of application for variation

71.     This section in effect prevents a premises licence holder who has had an application for a variation refused from re-applying for the same variation within a year of the initial refusal.

72.     Subsection (3), however, permits Licensing Boards to dispense with the one year limit or, where the limit has not been dispensed with, nonetheless to consider granting a re-application within the one year period where there has been a material change of circumstances.

Section 33 - Transfer on application of licence holder

73.     Subsection (1) provides that the holder of a premises licence may apply for the transfer of the licence to another person.

74.     Subsection (4) provides that the Licensing Board must notify the application to the chief constable for its area and subsection (5) provides that the chief constable must respond within 21 days by giving one of the notices required by subsection (6). The statutory content of these notices is set out in subsection (6) and covers relevant and foreign offences.

75.     Subsection (7) establishes that where the chief constable notifies the Licensing Board that the person(s) to whom the licence is proposed to be transferred (or a connected person) has been convicted of a relevant or foreign offence then the chief constable may also make a recommendation for refusal of the transfer application.

76.     Subsections (8), (9) and (10) establish the procedure that Licensing Boards must adopt on receipt of the chief constable's notice. Where the notice reports that no conviction is found the transfer must be granted. Where the notice reports a conviction the Board is under a duty to hold a hearing but the only ground on which the transfer application may be refused is that it is necessary to do so for the purposes of the crime prevention objective. Otherwise the application must be granted.

Section 34 - Transfer on application of person other than licence holder

77.     This section allows for an application for a transfer of a premises licence to be made by the proposed transferee rather than the licence holder. Subsection (4) provides that all the procedure set out in section 33 applies to applications for transfer of a premises licence under this section.

78.     The transferee may make such an application only in circumstances where the licence holder has died, become insolvent or incapable or the business is being sold or transferred. Where a sale or transfer is being made the transferee and transferor may therefore choose whether it is to be the transferor who makes the application (under section 33) or the transferee (section 34).

79.     A transferee will be able to apply under this section only if the transferee has a prescribed connection to the licence holder or the premises. For example, regulations under subsection (1) may prescribe that only the licence holder's executor may apply under this section for transfer of the licence in circumstances where the licence holder has died.

Section 35 - Variation on transfer

80.     This section allows persons applying for transfer of a premises licence also to apply at the same time for a variation to the terms and conditions of the premises licence. The provisions in sections 29 and 30 relating to applications and determinations of variation applications will apply to applications for variations under this section.

81.     Subsection (3) caters for the case in which a proposed transfer may depend on a variation being obtained to the licence. Where the person seeking the transfer makes it clear that this is the case, the Board must determine the application for variation prior to determining the application for transfer. If the variation is refused there is no need to proceed with the transfer application.

Section 36 - Application for review of premises licence

82.     This section provides for Licensing Boards to review a premises licence on the application of any person. The grounds for such a review are set out in subsection (3). These are: breach of the licence conditions or any other ground relevant to one of the licensing objectives.

83.     A Licensing Standards Officer can only apply for a review on the ground that there has been a breach of licence conditions if the Officer has issued a written warning about the breach.

84.     Subsection (5) places a duty on persons applying for a review of a premises licence to set out the grounds that they feel merit the review.

Section 37 - Review of premises licence on Licensing Board's initiative

85.     This section allows for Licensing Boards to initiate reviews of premises licences themselves. The grounds for review are the same as those for applications under section 36. Where a Licensing Board proposes to initiate a review of a premises licence, the Board must provide a written report (to be known as a review proposal) setting out the grounds that it considers merit such a review of the premises licence.

Section 38 - Review hearing

86.     This section places a duty on the Licensing Board to hold a hearing (known as a "review hearing" for the purposes of this Act) to consider and determine an application for a review of a premises licence made under section 36 or a review proposal under section 37. The Board does not need to hold a review hearing on an application for review if it considers the application is frivolous or vexatious or if it is not relevant to the grounds for review. Subsection (4) places a duty on Licensing Standards Officers to provide a report to the Board and provides a reciprocal duty on Boards to have regard to the report. Subsections (5) and (6) permit Boards to request information, the attendance at a hearing of any person and the production of documents.

Section 39 - Licensing Board's powers on review

87.     This section provides the range of sanctions that a Licensing Board may impose on reviewing a premises licence. The Board can issue a written warning, vary the licence, suspend it or revoke it. The Board can provide for a variation to apply only for a limited period of time.

Section 40 - Review of Licensing Board's decision to vary or suspend licence

88.     This section provides a mechanism by which a licence holder can apply to the Licensing Board to have any variation of their premises licence or the suspension of their premises licence removed. If the Board feels that the sanction in question is no longer necessary then it may remove the relevant sanction. This power applies only to variation or suspension of a premises licence following review.

Section 41 - Duty to notify court of premises licence

89.     This section requires premises licence holders who are charged with relevant offences to notify the court of the fact that they hold a premises licence. This will enable the courts to become aware of cases to which the duty in section 42 will apply.

Section 42 - Court's duty to notify Licensing Board of convictions

90.     Where a premises licence holder is convicted of a relevant offence by a court in Scotland, the clerk of court will, under this section, be required to give notice of the conviction to the Licensing Board. The duty only applies if the clerk is aware that the person convicted holds a premises licence. In most cases, they will be made aware of that fact under section 41.

Section 43 - Licence holder's duty to notify Licensing Board of convictions

91.     Where a premises licence holder (or in the case of a company, partnership or club, a "connected person" - see section 147(3)) is convicted of a relevant offence in Scotland or a foreign offence then the licence holder must, no later than one month after the date of the conviction, notify the Licensing Board of the conviction. If the licence holder does not comply he or she would be guilty of an offence. The duty is imposed on the licence holder even where it is a connected person who has the conviction.

92.     Subsection (4) specifies the mandatory requirements for such notices under subsection (3).

Section 44 - Procedure where Licensing Board receives notice of conviction

93.     Where a Licensing Board receives notice of a conviction given under section 42 or 43 the Board must give the appropriate chief constable notice of it. The chief constable must then check the conviction and respond, within 21 days, either confirming the existence of the conviction and that it relates to a relevant or foreign offence or stating that the chief constable is unable to confirm the conviction or that it does not relate to a relevant or foreign offence. Where the conviction is confirmed, the chief constable may make a recommendation that the premises licence be varied, revoked or suspended, if the chief constable considers that necessary for the purpose of the crime prevention objective.

94.     Subsection (7) places a duty on the Licensing Board to initiate a review of the premises licence should they receive notification from the chief constable confirming the existence of a conviction.

Section 45 - Provisional premises licence

95.     This section makes it clear that a premises licence application can be made in relation to premises which are being constructed or converted for use as licensed premises. A premises licence granted for such premises is referred to as a "provisional premises licence". The section modifies certain provisions of the Act as they apply to applications for provisional premises licences.

96.     A provisional premises licence has no effect until it is confirmed. The licence has to be confirmed within 2 years otherwise it will automatically be revoked. The 2 year period can be extended if the construction or conversion work is delayed for reasons outwith the licence holder's control.

97.     Subsection (10) modifies section 20 (which sets out requirements as to applications for premises licences) of the Act as it applies to applications for provisional premises licences. Paragraph (a) establishes that different certificates as to planning, building control and food hygiene are to be provided and paragraph (b) establishes that the name of the premises manager need not be provided on application.

Section 46 - Confirmation of provisional premises licence

98.     This section sets out the procedure for confirmation of provisional premises licences. The licence holder has to apply for confirmation to the Licensing Board before the end of the 2 year period beginning when the licence was issued. Confirmation would, in practice, be sought when the construction or conversion work is completed and the premises are ready for use.

99.     Subsection (2) sets out the mandatory requirements for applications for confirmation of provisional premises licences.

100.     Subsection (3) makes it clear that the operating plan accompanying the application must confirm the name of the proposed premises manager.

101.     Subsection (4) requires the Licensing Board to confirm the premises licence where the statutory conditions are met. Subsection (5) sets out those conditions - i.e. that during the period of the provisional licence there had been no variation to the operating plan or layout plan (other than a variation approved by the Board already or classed as a minor variation).

102.     Subsection (6) provides that when confirming a premises licence under this section, a Licensing Board may vary any licence condition for the purpose of ensuring consistency with the licensing policy statement.

Section 47 - Temporary premises licence

103.     This section caters for the circumstances where premises which already have a premises licence are undergoing reconstruction or conversion work. The licence holder may want to move into temporary premises pending completion of the work. This section allows the licence holder to apply to the Licensing Board for a premises licence covering the temporary premises. Such a licence is referred to as a "temporary premises licence".

104.     Subsections (5) and (6) confirm the maximum duration of temporary premises licences issued under this section and establish that those licence conditions which were attached to the original application for the premises licence would apply to the temporary premises licence, subject to any exceptions or modification which the Licensing Board may provide for.

Section 48 - Notification of change of name or address

105.     This section places a duty on the holder of a premises licence to notify the Licensing Board of any change of name or address of the premises licence holder or of the premises manager. This is meant to cover only actual name changes ie for example, where the licence holder is a company and changes its name, or the premises manager is a woman who changes her name on marriage. A change in the identity of the premises licence holder is provided for in the provisions on transfer of premises licences. If there is a new premises manager, this must be provided for by seeking a variation of the licence so as to add the new premises manager's name. A notification of a change of the licence holder's name or address or that of the premises manager under this section must be accompanied by the premises licence (unless that is impracticable, in which case a statement must be provided).

Section 49 - Licensing Board's duty to update premises licence

106.     This section is intended to ensure that the information contained in the premises licence is kept up-to-date. Subsection (1) requires the Licensing Board to make the appropriate changes to the information in the licence when it receives the notices of change of name or address and when it varies, transfers, confirms or reviews a premises licence. This ensures that there is always an accurate record of the licence.

107.     In most cases the Licensing Board will have been sent the appropriate licence, but subsections (3) and (4) provide that the Board may require a holder to produce their licence within 14 days. Subsection (5) provides that failure to do so without reasonable excuse will be an offence.

Section 50 - Certificates as to planning, building standards and food hygiene

108.     This section sets out the requirements as to the production of certificates evidencing compliance with planning, building control and food hygiene legislation in relation to premises in relation to which a licence application is made. Different requirements are imposed according to whether the application is for a full premises licence, a provisional premises licence or confirmation of a premises licence.

Section 51 - Notification of determinations

109.     This section places a duty on the Licensing Board to notify its decisions on applications for premises licences, applications for variations of a premises licence, transfer applications, reviews, applications for a temporary licence, and applications for provisional premises to the applicant and other specified persons.

110.     Subsection (3) requires Boards to give reasons for these decisions, but only if asked.

Section 52 - Duty to keep, display and produce premises licence

111.     This section provides that a premises licence holder is under a duty to ensure that the premises licence or a certified copy is held on the premises to which it relates either by the licence holder or by the premises manager. A summary of the licence must be displayed prominently on the premises. It is an offence to fail to comply with these requirements or to fail to produce the licence or a certified copy to a constable or a Licensing Standards Officer on request.

Section 53 - Theft, loss etc. of premises licence or summary

112.     Subsection (1) provides that a premises licence holder may apply to the Licensing Board for a copy of a premises licence or a summary if the licence or summary has been lost, stolen, damaged or destroyed. If lost or stolen, the theft or loss must have been reported to the police. The Licensing Board must then issue a replacement licence or summary. The Act applies in relation to a replacement and summary in the same way as it applies to the originals

113.     Subsection (3) establishes that a replacement licence or summary is to be certified as a true copy by the Licensing Board.

Section 54 - Dismissal, resignation, death etc. of premises manager

114.     This section deals with circumstances where the premises manager ceases to work at the premises, becomes incapable of acting or dies or where the personal licence held by the premises manager is revoked or suspended. It gives a "period of grace" to allow the premises to continue operating despite not having a premises manager and pending the recruitment of a new one.

115.     Subsection (3) places a duty on the premises licence holder to inform the Licensing Board of such circumstances within 7 days.

116.     Subsection (4) and (5) provide that should this notification be done within the 7 day period and an application to substitute a new premises is made within 6 weeks of the loss of the premises manager, then the fact that the premises are, in the meantime, operating without a premises manager will be overlooked.

117.     Subsection (6) provides that should there not be an application for a transfer of the premises licence under subsection (4) then the Licensing Board must vary the licence to reflect the fact that there is no longer any premises manager named on it. The period of grace will have ended and the premises would have to stop operating as they would have no premises manager.

Section 55 - Certified copies

118.     This section provides an interpretation of what is meant by the term "certified copy" used throughout this Part of the Act.

PART 4 - OCCASIONAL LICENCES

Section 56 - Occasional licence

119.     Subsection (1) provides a power for Licensing Boards to grant an occasional licence for premises other than licensed premises to those persons specified in subsection (2). For a premises licence holder this would be to authorise the sale of alcohol in the course of catering for an event taking place outwith their licensed premises. A typical example of where this might arise would be the provision of catering, including the sale of alcohol, at a wedding reception or other social event held on private property. Voluntary organisations may also apply for an occasional licence authorising the sale of alcohol at an event connected with the organisation's activities.

120.     Subsection (5) sets out a maximum duration of 14 days for each occasional licence. Subsection (6) confirms the limits on the number of occasional licences that Licensing Boards can issue within a year to a voluntary organisation.

121.     Subsection (7) provides a power for the Scottish Ministers to set out in regulations the form of occasional licences and subsection (8) sets out the mandatory content of occasional licences in paragraphs (a) to (j).

122.     Subsection (9) clarifies that premises for which an occasional licence has been granted may sell alcohol at different times for consumption both on and off the premises.

Section 57 - Notification of application to chief constable

123.     This section places a duty on Licensing Boards to notify the chief constable and the Licensing Standards Officer of all applications for occasional licences under section 56 and for the Chief Constable, within 21 days, to notify the Board of whether, in the interests of the crime prevention licensing objective, the application should be refused. The LSO may, within the same period, submit comments on the application.

Section 58 - Objections and representations

124.     This section allows any person to make objections and representations to Licensing Boards in connection with any application made to the Board for an occasional licence under section 56.

125.     Subsection (2) places a duty on Licensing Boards to give the applicant notice of any objections or representations received and to take account of them in determining the application.

126.     Subsection (3) permits Licensing Boards to reject any frivolous or vexatious objection or representation made to them. Subsection (4) permits Licensing Boards to recover costs from the person in question. Subsection (5) establishes the matters that would be considered acceptable evidence in any proceedings by a Licensing Board for recovery of costs under subsection (4).

Section 59 - Determination of application

127.     This section sets out the procedure that Licensing Boards must adopt to determine an application under section 56 for an occasional licence. It provides both for the circumstances where a Licensing Board proposes to grant a licence and where it proposes to refuse such a licence.

128.     Subsection (3) provides that the Board's decision must be based on the statutory grounds for refusal. These are set out in subsection (6). They are similar to the grounds for refusal of a premises licence application except that there is no "overprovision" ground. Subsection (7) provides that, when considering refusal on the ground that the application is inconsistent with the crime prevention objective, Licensing Boards must take into account and any recommendation for refusal made by the chief constable. The Board must also take account of any comments submitted by the Licensing Standards Officer.

Section 60 - Conditions of occasional licence

129.     This section makes provision as to the conditions to which occasional licences may be subject. It replicates section 27 in relation to premises licences.

Section 61 - Notification of determinations

130.     This section places a duty on the Licensing Board to notify its decisions on applications for occasional licences. Subsection (3) requires the Board, on request, to provide reasons for its decisions.

PART 5 - LICENSED HOURS

Section 62 - Licensed hours

131.     This section establishes the new regime of licensing hours on which the licensing system will be based. This is a move away from the system of "permitted hours" of the Licensing (Scotland) Act 1976. The Act introduces a more modern approach and gets rid of the practice of giving extensions to hours in favour of clarity up front about acceptable hours. Licence holders would be required to specify their hours in their operating plans which are submitted to the Licensing Board for approval along with their premises licence applications and are drawn up with regard to the Board's published policy statement, which sets out the Board's general approach to policy on licensing hours for their area. The hours for occasional licences are, similarly, to be set out in the application for the licence and incorporated into the licence if granted.

132.     Subsection (2) establishes definitions for off-sales hours and on-sales hours respectively. These labels apply not just to hybrid premises but also to premises which are exclusively on-sales or off-sales.

Section 63 - Prohibition of sale, consumption and taking away of alcohol outwith licensed hours

133.     The provisions in this section are to some extent based on section 54 of the Licensing (Scotland) Act 1976. The provisions here provide that it is an offence to sell alcohol outwith licensed hours or to allow the sale, consumption, or taking away of alcohol outwith licensed hours. Subsection (2) sets out a number of exceptions which cover, amongst other things, the period of 15 or 30 minutes "drinking-up" time.

134.     Subsection (4) is a new offence which replaces that under the Licensing (Scotland) Act 1976 of consuming or taking away alcohol outwith licensed hours. The consumption or taking away is only an offence if the person was asked not to consume the alcohol or take it away but failed to comply with the request.

Section 64 - 24 hour licences to be granted only in exceptional circumstances

135.     The presumption provided here is against 24 hour opening in Scotland for on and off sales. However, subsection (2) provides that Boards are entitled to agree exceptions to that presumption but only if satisfied that there are exceptional circumstances justifying it. This is a test which will have to be applied on a case by case basis. Guidance will set out national guidelines on the policy that should be adopted by Licensing Boards in relation to circumstances that might merit 24 hour opening. Boards are required to set out their policy on licensing hours for their area in their policy statements.

Section 65 - Licensed hours: off-sales

136.     This section introduces statutory opening hours for off sales premises. Where an application is made for a premises licence, a variation to the licence, an occasional licence, or extended hours application for the sale of alcohol between the hours of 10.00 pm and 10.00 am for consumption off the premises, then the Board must refuse the application.

137.     Subsections (4) and (5) enable Scottish Ministers to change those designated times by an affirmative resolution order and require Licensing Boards to take into account the impact of antisocial behaviour (as defined by the Antisocial Behaviour etc. (Scotland) Act 2004) when considering what hours to grant with regard to off-sales.