We have recently assisted a number of licensees who have come to the adverse attention of the authorities – OLGR or Police – for failing in their liquor compliance. In many of the cases we have encountered the problems could have been avoided with better training at management level.

It’s possibly been an unfortunate step taken by Government to remove the requirement for RMLV training for so-called “low-risk premises”. Restaurants and cafes fall into the low-risk category, yet they are often the entry point to the liquor industry for new business people. It’s arguable that management training in liquor compliance would be of greater rather than lesser importance for these businesses.

The good news is that whether or not the course is a statutory requirement, it is conveniently available to anyone, including via a streamed on-line course which has proved to be of great utility (particularly to licensees away from the major population centres).

Considering the significant fines which can be issued for non-compliance (for example almost $2500 for licensees who forget to pay their annual licence fee) the cost of training would be a sound investment for any licensee.

Also it should be borne in mind that RMLV is not a set and forget style of approval or qualification. It is in reality a course designed to inform the participant about every aspect of liquor compliance so that the business can move forward safely and without the risk of penalties. In other words, it should be the cornerstone of effective management of a liquor licensed business.

For more information, or to enrol in one of our courses, please visit RMLV.com.au or call our office on 07 3252 4066.

The Queensland Office of Liquor & Gaming Regulation (OLGR) recently released two training videos to help bar staff develop skills in assessing intoxication and refusing service when required to do so by law.

The videos are on YouTube and offer some useful tips, whether for new staff or experienced workers. Licensees may also like to use the videos in staff training sessions or during team meetings.

Just One More

Tricky Situation

Previously the Liquor Act prohibited liquor consumption in a car park area without prior approval. The Act did not define a car park; therefore, the conventional definition was used: an area normally used for the parking of cars.

However, the passage of the Tackling Alcohol-Fuelled Violence Legislation Amendment Act 2016 included insertion of a definition of a car park:

car park means an area with a surface designed or adapted for the parking of vehicles, whether or not the area is being used for that purpose.

One interpretation of the definition is that any level outdoor surface could be deemed to be a car park, which would potentially include beer gardens or paved outdoor consumption areas accessible to cars. Although OLGR has assured us that this is not the intent of the legislation, it begs the question of why the definition was written in such a broad sense. Whilst the expanded definition of a car park is a potentially negative outcome, on the positive side there is now a clearer process for any licensee who wishes to use a car park for the service of liquor.

Additionally, approvals will no longer be restricted to a single occasion, the new rules permit an approval for up to three months. This may create opportunities for some licensees which were not previously available, although this comes at a cost: there is a fee payable for each occasion of use and an occasion is limited to no more than three consecutive days.

Therefore, a licensee wishing to use a car park every day for three months would require approval for 30 separate occasions. The 2016/17 approval fee is $65.40 per occasion, which adds up to $1,962 for 90 days.

The changes came into effect on 1 September 2016 and at the date of publication, while some applications for approval have been lodged, we are unaware of any compliance action against licensees regarding the use of car parks under the new definition.

We have been approached on a number of occasions to provide guidance on the compliance implications of the sale of liquor by licensees on behalf of a third party, namely charities and not for profit organisations to assist fund raising.

Before addressing how this may happen without leaving the licensee open to possible compliance problems under Queensland liquor laws, let us first look at the general nature of this type of arrangement.

Many commercial dealings are undertaken by one person on behalf of another. An employee might purchase goods or services on behalf of that person’s employer; a company director might enter into a contract on behalf of the company and so on. The employee or director is the agent, the employer or company is the principal and in general terms the actions of the agent bind the principal.

The agent and principal scenario presents itself when a licensee is working with a charity or not for profit organisation to provide a liquor service at a fund raising event. The charity or not-for-profit, as an “eligible entity” under Section 13 of the Liquor Act, enjoys an exemption from requiring a licence or permit to sell liquor at the event. However, the exemption does not apply if the liquor is sold by a commercial licensee, so the two parties must set up an agency agreement for the event.

The basis of the agency agreement is simple enough: the licensee will provide a liquor service at the event, as an agent of the eligible entity, with net proceeds from sales retained by the principal. To avoid complications, there are a number of things to consider:

1. Documentation – although an agreement does not need to be in writing to be binding, if there are any questions regarding who is benefitting from the sale of liquor at the event (noting that an investigation might be undertaken several months later) clear documentation will be invaluable. Email exchanges are perfect for this type of thing as they are easy to keep, can be saved as conversations by most email clients and are recognised by statute as legally binding.
2. Ownership – if the liquor is being supplied by the eligible entity through the agency of the licensee, it makes sense that the eligible entity must be the owner of the liquor prior to its sale to the end consumer. If the agent licensee is supplying the liquor, (possible for a commercial hotel or producer/wholesaler licensees) the eligible entity must be invoiced for the liquor at some point. The documentation should include reference to the invoicing, payment, storage and return arrangements.
3. Net proceeds – for an event to be exempt “all the net proceeds from the sale of liquor will be used for the benefit of the community”. This clearly does not mean all of the takings for liquor sales, rather the amount left after costs. Costs would of course include the purchase price of the liquor, but may also include transport, refrigeration, labour and any other legitimate costs associated with the liquor supply. It is important that the costs are fair and reasonable and not inflated.
4. Payment – while legal ownership of the liquor has been transferred to the eligible entity, the licensee retains possession of the stock, dispenses it to paying customers at the event and collects money as an agent of the eligible entity. At the end of the event it is permissible for the licensee to provide an adjusted invoice to the eligible entity and retain the amount due from the day’s takings. The balance of the funds is paid to the eligible entity.

Having regard to the above, there are opportunities for licensees and non-profit organisations to work together for mutual benefit. The eligible entity gains access to a new fundraising opportunity and the licensee enjoys the benefits of sponsorship: exposure, positive public relations etc., for a very low real cost. With planning and proper documentation, this can all be achieved within the bounds of Queensland’s generally restrictive liquor laws.

We recently attended the launch of a new book by our good friend and colleague  Jeremy Streten of Streten Masons Lawyers.

The Business Legal Lifecycle is based on Jeremy’s extensive experience advising business owners on how to protect their interests as they build a successful business. Written in plain English, with minimal legal jargon and plenty of real world examples, this Australian handbook is a must-have for any business owner.

The book is available online from this address: http://businesslegallifecycle.com.au/