PA podcast: Listen to partner, James Anderson, discuss how to handle drunk customers

In this episode, licensing partner, James Anderson, discusses how to deal with drunk customers on your premises.

Click here to listen to the podcast 

Find the transcript below:

Paula 

Welcome and welcome back to the Poppleston Allen podcast where we discuss licensing topics to help you and also me get a better understanding of what licensing is all about.

Some of the most frequent questions that we get asked as licensing solicitors is how to handle drunk customers. So for this month’s episode I thought I would bring in our licensing expert and partner James Anderson to answer some of your most frequent questions as well as give you some top tips to focus on as operators.  

The first question. If the law states that we can’t serve a customer who is drunk. How should I define drunk? 

James 

Yes, the law does state that it is an offence to serve someone who is drunk and under the Licensing Act 2003.  

So anyone who works in a pub and serves someone who is drunk could commit an offence. Drunk is not defined in the Licensing Act or indeed legally, so it is a question of fact and degree as to whether someone is drunk or not. And indicators will be the person’s demeanor, behaviour, coherence, language, that type of thing. So it’s an assessment that’s made by the pub staff and ultimately, if need be, the manager as to whether the person is drunk or not. 

Paula 

So what if their friends are buying the drunk person drinks? At that point, I’m not really refusing them, but I know they’re still drinking. What should I do? 

James 

Yes, so not committing, you’re not committing an offence bizarrely, if the sale is not the drunk person. But if you’re or if you see that friends who are who are sober are buying drinks for a person who is, or persons who are drunk, then you should intervene because it clearly isn’t in anyone’s interest that a person is getting more and more intoxicated and that’s bad for that person, potentially.  

And could have an impact on the pub or the bar. So even though strictly speaking there may not be a legal reason, it’s perfectly legal for the the person in the bar or the duty manager to say, look, I’m not going to sell you. Anymore, because your friend is clearly drunk.  

You should leave the premises, take him or her home and look after them before that person you know is is getting so drunk that they’re putting their own health and well-being at risk. 

Paula 

Do I have the right to refuse entry to anyone I want and are there any situations I should look out for? 

James 

Yes, although not enshrined in the Licensing Act. In fact, it’s a common law right to refuse entry to licensed premises and indeed to refuse service if that person comes in because of course, in a nightclub or late bar situation, there are door staff who do the job essentially of deciding who comes into the premises or not, whether people are old enough, whether they’re behaving suitably, suitably dressed, et cetera, et cetera.

In a pub, commonly that person will simply walk in without any restriction, then come to the bar and at that point in a pub scenario, the person behind the bar makes an assessment, but it’s perfectly lawful to refuse to service, refuse entry, or indeed, once that person is in to save that person. I’m sorry. Yeah, I want you to leave the premises. And indeed no reason has to be given. 

Paula 

Following on from that, what happens if the person claims that the reason for the objection is based on their race or sexuality, or so on? Even it of course doesn’t. 

James

Well, there’s two elements to the question there. So following on from the answer I just gave, of course.   

The Equalities Act 2010 which protects people racially and in relation to disability and sex, sexual discrimination. So if the reason was perversely on any of those grounds, then, could be breach of the equalities legislation for which the person aggrieved could make a complaint and ultimately go to court to sue the operator.

And that has happened, there have been cases where, for example, there was a pub company involved when members of the traveler community were refused and they made a successful claim against that pub company on the grounds of discrimination. So it is possible to do that and so the onus is on the person behind the bar and the operator. Not to make, obviously not to to bar someone for discriminatory grounds because there could be a case against them.  

What would be sensible and what is good practice is always to make a note of refusing to serve, and indeed some licenses have conditions requiring what’s called an incident log. So if I refuse to serve someone, it would be sensible for me to put down a note of that and the reasons for it. And of course, and sometimes note sometimes often licensed premises have CCTV all over the place, so the conversation and the incident would be caught by CCTV which may assist one way or the other. 

Paula 

So a more general question is what is the role of a designated premises supervisor in terms of handling a drunk person? 

James 

Well the Designated premises Supervisor or DPS as it’s abbreviated to has overall control of the of the licensed premises pub/bar but may not be there the whole time. So normally someone would be in charge, an assistant manager, deputy or duty manager and so that person would, in theory, probably have to make that decision.  

I don’t think it would depend on the setup of the pub, because of course many sort of rural community pubs don’t have a lot of stuff because it of course affects profitability. So it’s possible that a person may have to make that decision on their own, which would be challenging. Anyone who’s employed at the pub can make that decision. 

Paula 

Okay.

James 

What is important, I think and we haven’t, I haven’t touched upon this is staff training, so that’s become more and more important in the licence industry and staff training, certainly in relation to personal license. Or other stuff training would include recognizing intoxication and the, what to look for and what action to take so that the person should be able to recognize that and then should be empowered if there is no duty manager to take that action or make a phone a phone call, possibly. 

Paula 

What is a mandatory condition and what do they mean to me on a daily basis? 

James

Yes. So there’s a number of mandatory conditions on each premises licence in England and Wales on every premises licence and they were introduced in fact in two segments.  

I think the last in 2010 because there were concerns at the time that some premises were operating irresponsibly, so the mandatory conditions were an attempt to tighten things up. There was press coverage about the dentist chair pouring alcohol into the mouth of someone and this was going on in certain licensed premises and drinks promotions were leading to drunkenness and that was causing problems for the police and members of the public on the High Street.

So the mandatory conditions which came in some of them were designed to prevent what are what the condition calls irresponsible promotions, which would be things like, drinking a certain amount of alcohol in a certain time limit, games involving drinking large amounts of alcohol and unlimited free alcohol. So that those can. Not be. Allowed things like. Happy hours would be okay, that’s generally accepted as a good way for businesses to promote themselves during quieter periods. It’s a question of fact and degree, but if you’re doing and of course bottomless Prosecco, it is something that’s become increasingly popular. 

Paula 

Okay.

James 

You see adverts for that all the time and particularly in the quieter period Saturday afternoons and things like that so what I’ve advised clients because of course you are then providing alcohol which is either cheaper or maybe free because you prepay don’t you for an hour or two hours and you buy a certain amount of alcohol that I think in some places it’s unlimited and that is generally accepted. As OK I’m not aware of any enforcement against that, because the argument is that it’s, you know it’s well controlled. It’s with food and therefore it’s not an irresponsible promotion effectively. 

Paula 

And then final question before I let you go, do you have any tips for operators? 

James

It’s okay.  I mean, it’s always difficult as a lawyer telling operators what to do because they know that so much better than me.  

But I think just to recap on what I what I’ve said I mean. It’s drunkenness, I think is in some ways less of a challenge than it used to be when I was young many years ago, and in some ways more of a challenge. And I say that because when I used to go out as a young lad all those years ago, most people drank beer. Or lager, and it wasn’t particularly strong and no one would drink probably a cocktail or a shot.  

So and beer probably would be 4% strength if you went over 4/4 and of that would be considered very strong and now that’s much more mainstream. So the alcohol and shots of course has become much more part of the culture, not just amongst younger people but older people, two shots. And so I think there is probably and also. Things like. You know, I’m probably straying into dangerous territory, but, but, you know, more women, for example, drink pints and shots than they used to.  

So it’s not just blokes going to the pub and drinking lots of beer anymore, so I think that’s become more challenging and yet at the same time. I mean, I think amongst a lot of younger people there is greater awareness of, and indeed a greater reluctance to become intoxicated through alcohol. I think there was a figure released recently which said that one in for 18 to 24 year olds don’t drink and that is partly driven. I think by by religion, but not entirely.  

Some younger people are not interested and I think of a member of my family as well. If it’s slightly going off peace. But I’m desperately trying to get my 17 year old. Not in a pub, obviously, but at home too, although he could of course drink a beer with food, which I’ve also tried perfectly lawfully, but I’ve tried to get him to have a beer and he’s not. He’s just not remotely interested in some of his friends are the same, so there seems to be a change in culture.  

So sort of reducing the risk. Younger people don’t seem to want to go to the pub. I was desperate to go to the pub as a 16, 17, 18 year old, so I thought it was a rite of passage to become a man. But many of the younger generation are not particularly bothered, so I think it’s easier and harder because consumption has changed and the third element just about that of course.  

And the major change is the issue of pre loading which it presents operators with a another problem, because of course people may be arriving at their venue. Intoxicated and later at night, and that was not something that was around really. When I was younger, people just went out earlier and they consumed. Alcohol in the pub in a regulated environment. Now more and more people, I think due to financial a greater financial difference between the off sale price and the on sale price. It’s well, it’s massive. They are drinking more at home and then going. Out. So that is also. You know an issue, so advice tips.  

I mean, staff training is crucial. Vigilance recording of any incidents and you know, we live in a world where there is greater, probably greater responsibility. City on operators. I’m thinking of things like drink spiking, which is very much in the news and you know, Martyn’s law and things like that. So in that environment, operators have to be, you know, even more, aware than they used to be. All right. 

Paula 

Thank you so much, James. 

James 

Thank you, Paula. That’s all right. 

Paula 

Well, thank you for joining and listening to this month’s episode. Based on the conversation that we’ve had with James today, I hope that we were able to give you a better understanding and insight into handling drunk customers on your premises.  

If you have any other questions regarding this, please feel free to contact James on his e-mail on j.anderson@popall.co.uk or please feel free to contact any of our other licensing solicitors which you can find on our website at www.popall.co.uk and Poppleston Allen on all our other social media platforms.