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.

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

The Queensland Government recently amended the Liquor Act to reduce maximum trading hours from 5 am to 2 am (3 am in Drink Safe Precincts). However, the explanatory notes to the Bill include this information:

To promote the development of a diverse night time economy that includes but does not revolve solely around the service of alcohol, the Bill provides clarity that licensees are able to stay open beyond the hours of liquor service to provide other services such as food, non-alcoholic beverages and entertainment.

As far as gaming is concerned, the changes will allow licensees to apply for an increase in approved hours of gaming for up to two hours after service of liquor has ended.

There has been some confusion in the industry regarding how this will work. OLGR has recently clarified the process and most licensees would have received the following information by email:

• From 1 June 2016 existing gaming licensees can apply to extend gaming for up to two hours beyond the approved liquor trading hours they will have from 1 July.
• Applications for up to one hour of extended gaming trading will be streamlined and will not be advertised unless they are accompanied by a liquor application e.g. a new licence application or an application for approved extended trading for liquor.
• Applications for more than one hour of extended trading will be deemed to be of “significant community impact” and must be advertised for community comments, albeit for a reduced period of 14 days. However, they will not require a community impact statement or a statement of responsible gambling initiatives.
• Applications must still be supported by a submission demonstrating a sustainable demand for gaming during the additional hours.
• For all applications, the licensee must warrant that the hours are permitted under the town planning approval for the premises.

Things to note are:

• The maximum extension to gaming is two hours after the sale of liquor ceases, rather than from the end of the grace period. So, if you are approved to sell liquor up to midnight, you can apply to extend gaming hours until 2.00 am.
• This represents an opportunity to all gaming licensees, not only those whose approved liquor hours will change on 1 July 2016.
• Existing licensees will retain their approved gaming hours, regardless of any change to approved liquor trading. In other words, some licensees will cease liquor trading at 2.00 am but may continue to operate gaming machines until 5.30 am. It appears that if a new gaming licence is issued for the site, for example when the business is sold and the liquor licence transferred, then any hours of gaming beyond the standard two hour period will be lost.

To find out how we can help with the preparation of an application to increase your approved gaming hours, call our office on 07 3252 4066.