Liquor and the Cost of Compliance

Being a licensee of a premises that holds a liquor licence is one of the most fluidly changing compliance environments facing small business operators in NSW.

Things constantly change, regulations are updated, departments are restructured and compliance requirements keep moving. As a licensee, it is your job to keep up to date with the changes.

On premise liquor licenses are the general term attributed to restaurants who operate with a liquor license as an ancillary component to their business. As a general rule, on premise licenses operate under standard guidelines. Generally, your license will allow you to serve alcohol to patrons ancillary to a meal, and in the Sydney CBD area primarily between the hours of 10am – midnight. In regard to such a licence, the licensing authority will conduct what’s called a Primary Purpose test. This is to ensure that the primary purpose of your business is not the sale of alcohol, but that the sale of alcohol is secondary to your primary purpose which should be the sale of food.

As an operator of a restaurant with a liquor licence it is very easy to lose sight of your responsibilities as a licensee. The law notes that an individual licensee or a manager of a corporate licensee, is responsible at all times for the personal supervision and management of the conduct of the business of the licensed premises under the licence. That means that any breaches that may occur on your premises at any time, by any staff member is your responsibility.

The newly updated Liquor Regulations 2018 extends procedural requirements many licensees who operate On Premise liquor licenses may not be aware of. Some key elements which you must have on site to ensure compliance include:
– All required signs.
– An incident register (prescribed).
– A complaints register.
– An RSA register.
– A copy of the liquor license.
– A copy of the Licensee’s Training certificate.
– A current Plan of Management.

Breaches of these compliance requirements will generally result in an infringement notice which is a fine.

A core focus of the Liquor Act 2007, is the underlying theme of harm minimisation. In addition to the general compliance steps as outlined above, you will need to ensure you operate your business with harm minimisation as a core centre point of the service of alcohol. This means that:
– You must not serve alcohol to anyone who is a minor.
– You must not serve alcohol to anyone who is intoxicated or is displaying signs of intoxication.
– You must not promote excessive or unsafe drinking practices.
– You must not have discounted liquor promotions or advertisements.
– You must not promote undesirable liquor products such as high alcohol content shots.
– You must serve and have available free drinking water at all times.
– You must keep at all times, the promotion of your duty of care to your patrons as and when appropriate.

Breaches of these core elements may result in an infringement notice, or the issue of a Court Attendance Notice. If proceeding via a Court Attendance Notice, you will be required to attend court and your matter will be listed as a Criminal Offence. Fines can be incredibly expensive once it progresses to this stage, and the Court also has the power to imprison a licensee for serious breaches of the Act. Further to this, breaches of these components once prosecuted may be deemed a strikable offence. As a liquor licensee, if you are convicted of three (3) strikable breaches, your business may lose its liquor licence altogether.

In addition to this, you will need to check your DA and ascertain if you have any specific conditions on your DA in respect to the operation of your business. A common DA condition may be the use of CCTV. As a requirement of CCTV you will find the most common requirements are:
– A minimum of 28 days storage.
– A daily maintenance log of your CCTV system.

As a general business operator, you will have compliance requirements not only in liquor laws but also under the Environmental Planning and Assessment Act 1979. Although updated as of 2018, specific conditions of your DA may see you in breach if you do not comply with those conditions. It is yet to be seen since its update, however the old s 76(1)(b) Development not accord consent which has been replaced with part 4.2(1)(a) of the act yields a maximum monetary tier 1 penalty, that is $110,000.00 per offence. Previously, you could be issued a $6,000.00 on the spot infringement for each offence.

This is of particular importance to note as we have seen Licensing Police begin utilising the Environmental Planning and Assessment Act to issue infringements or Court Attendance Notices during liquor licensing audits.

You must also be aware that there are three distinct bodies of enforcement under these laws. These include:
– The New South Wales Police, generally under the Licensing Division.
– The local council.
– Liquor and Gaming New South Wales.

We have found a pattern that investigators from the relevant councils and Liquor and Gaming New South Wales are generally former Police Officers. Investigators from all three departments are authorised officers as pursuant to the Act and as such have the powers to issue infringement notices and or Court Attendance Notices.

If you need assistance in ensuring you are compliant, or have already been breached, please feel free to contact our office as we have qualified and experienced staff in this field who can help you through the process and ensure a greater level of operating safety for your business.

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