News Setting Boundaries

Even though something is legal, you may your own policies and procedures to prohibit and activity.

A recent and rather disturbing story in the press has once again highlighted the issue of how much autonomy operators have over their own premises and the wider implications of actions by customers visiting your premises.

You may have seen the reports of a man who was sitting in a beer garden of a pub in Worcestershire wearing a t-shirt featuring offensive comments regarding the Hillsborough disaster.

A photograph of the t-shirt was shared on social media and shortly went viral leading to criticism of the management of the pub.  Some twitter users demanded to know why the customer was not made to leave immediately with the manager being forced to defend himself and explain that he was busy working inside the pub at the time and the man was barred from the premises as soon as he became aware of the t-shirt.
Conversely, the manager was reportedly faced with a number of phone calls to the premises criticising his actions in barring the customer.  The Police were called and the customer was charged with displaying threatening and abusive writing likely to cause harassment, alarm or distress.

In this situation it is easy to see why operators can struggle with deciding where to draw the line in terms of their customer’s unacceptable behaviour.  We live in a society where free speech is recognised as a fundamental human right, so how do you balance this or other legal ‘rights’ against your ability to refuse service or ask someone to leave your premises if you deem their behaviour to be unacceptable?

Children and young people
A similar question of boundaries arises in relation to children being permitted on licensed premises and 16 and 17 year olds being able to drink alcohol with a meal.  The Licensing Act 2003 states that a 16 or 17 year old may consume beer, wine or cider with a table meal as long as the alcohol is purchased by someone over the age of 18.  This causes lots of anxiety among many operators who are, quite rightly, wary of breaking the law in relation to underage sales.  As long as the alcohol is purchased by an adult, the operator is acting within the law however, it can be difficult to monitor and manage.  The policy of many operators is therefore to refuse service to anyone under the age of 18 and also to prohibit the consumption of beer, wine or cider to anyone under the age of 18 even if they are taking a table meal. Similarly, many operators choose to exclude under 18’s from their premises all together, irrespective of whether that is a condition of their premises licence or not.
Many clients contact us in relation to complaints received, often by angry parents, who are aware of the exemption within the law and have been refused service of alcohol which was intended for consumption by their teenage family members.  However, whilst the law may permit the sale, there is nothing to prevent an operator exercising their discretion and having a policy which refuses service to under 18’s.

E cigarettes
E-cigarettes are another example of operators taking charge and banning otherwise perfectly legal habits.  Whilst the ban on smoking in enclosed or substantially enclosed places was introduced by the Health Act 2006, e-cigarettes are not covered by the legislation.  The Welsh Government had looked to introduce a ban on smoking e-cigarettes indoors via their Public Health Bill however, it was announced in January that the proposals had been amended so that e-cigarettes would be permissible in wet-led pubs but not those serving food. Nevertheless, the motion to approve the Bill was not approved and as a result it was rejected in March 2016.

Many operators argue that you cannot be 100% sure of the substances being smoked through an e-cigarette or that they are generally a nuisance to other non-smoking customers and therefore choose to ban them.  Once again, operators have the right to be able to make their own policies but must be mindful of balancing the interests of their customers in order to avoid affecting levels of trade.

Ultimately, your premises are a private place of business and you therefore have the right to withdraw your permission for a particular individual to enter the premises providing it is on non-discriminatory grounds.  If they attempt to enter or refuse to leave, they are committing a trespass.  Similarly, just because something may be legal, you are entitled to have your own policies and procedures which prohibit any such activity if you see fit.  The difficulty lies in managing customers’ expectations and any potential backlash, which can be particularly harmful in the current social media dominated environment.