Liquor & Gaming Specialists

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Low Risk Is Not Zero Risk

The Liquor Act was amended last year (received assent on 27 November 2013) to change the requirements for "low risk" licensed premises with respect to approved managers and RMLV training.

The relevant parts of the amended version of Section 155AD are set out below. I have bolded the bits that create the exemption for restaurants and cafes, or to be more correct, the holders of commercial other subsidiary on premises licences with either a "meals" or "prepared food" principal activity. The "prepared food" category, also known as a "café licence", gets included because of the definition of "subsidiary on-premises licence (meals)" in Section 4 of the Act (in case anyone’s interested).

155AD Who must be present or reasonably available at licensed premises etc.
(1) This section applies while the licensed premises or premises to which the permit relates are open for business.
(1A) However, this section does not apply to licensed premises under a subsidiary on–premises licence if the premises are a boat or on a boat.

(2) If the licensee or permittee is a corporation, the licensee or permittee must take reasonable steps to ensure that a person employed by the corporation as an approved manager–
(a) is present or reasonably available during the following times at the licensed premises or premises to which the permit relates–
(i) ordinary trading hours;
(ii) approved extended trading hours between 7a.m. and 10a.m.; and
(b) is present during approved extended trading hours between 12 midnight and 5a.m. at the licensed premises or premises to which the permit relates.
Maximum penalty–50 penalty units.

(3) If the licensee or permittee is an individual, the licensee or permittee must–
(a) be present or reasonably available, or take reasonable steps to ensure that a person employed by the individual as an approved manager is present or reasonably available, during the following times at the licensed premises or premises to which the permit relates–
(i) ordinary trading hours;
(ii) approved extended trading hours between 7a.m. and 10a.m.; and
(b) be present, or take reasonable steps to ensure that a person employed by the individual as an approved manager is present, during approved extended trading hours between 12 midnight and 5a.m. at the licensed premises or premises to which the permit relates.
Maximum penalty–50 penalty units.

(4) Subsection (3) applies subject to section 155AF.
(4A) If the premises are low risk premises and are not open for business beyond 12 midnight, the licensee or permittee is exempted from–
(a) for a licensee or permittee that is a corporation–subsection (2)(a); or
(b) for a licensee or permittee who is an individual–subsection (3)(a).
(4B) If the premises are low risk premises but are open for business beyond 12 midnight, the licensee or permittee is exempted until 10p.m. from–
(a) for a licensee or permittee that is a corporation–subsection (2)(a); or
(b) for a licensee or permittee who is an individual–subsection (3)(a).
…
(9) In this section–
low risk premises means premises to which any of the following relates–
(a) a subsidiary on-premises licence (meals);
(b) a community club licence if the club has 2000 or fewer members;
(c) a community other licence;
(d) a restricted liquor permit.

The changes are a little controversial for a couple of reasons. Firstly, many of our LGS Training clients have taken some convincing that this has actually happened – understandable of course when licensees have become used to the approved manager regime which has been around since the start of 2009. The feedback has bordered on incredulity at times. "So you’re saying no-one has to be trained? This is a big restaurant! What if something goes wrong? This can’t be right!" etc etc. I’ve patiently explained that even though it’s no longer a statutory requirement, it’s probably a very good idea for a licensee to have personnel with the RMLV qualification.

Secondly, as far as I’m aware it was actually intended to retain a requirement for low risk premises to at least have someone trained in RMLV. This has not eventuated with the amendment, but it may well be that further changes will correct this. The parliamentary committee (deep breath – the State Development Infrastructure and Industry Parliamentary Committee) in supporting the new 155AD mistakenly reported that "all licensees must complete Responsible Management of Licensed Venues (RMLV) training, which is the same training as that undertaken by approved managers." Of course, only a person who holds a licence as an individual needs to the do RMLV, and almost all licences in Queensland held by companies.

We know from long experience the value of proper diligence when it comes to liquor compliance, and conversely the elevated risk of negative consequences for licensees who do not have a clear focus on their technical obligations. "Low risk" does not equal "no risk" and we will continue to recommend to our clients that they ensure key members of staff obtain the RMLV qualification.

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Low Risk Licence Applications Made Easier

In what is likely to be seen by several industry groups a s controversial change the Newman government’s red tape reduction bill will amend the Liquor Act to remove much of the expense and time constraints associated with the licensing process for restaurants and cafes.

Many existing licence holders will recall the standard process to apply for a liquor licence in Queensland included:

  • The preparation of a Community Impact Statement
  • The preparation of a Risk Assessed Management Plan
  • Seeking the consent of the owner of the freehold property
  • Advertising the liquor licence application: in a local newspaper, the Queensland Government Gazette and by way of a sign on the premises, to call for community comment or objection.
  • The completion of police criminal history checks on individuals involved in the application: company directors, major shareholders and individual applicants.

The proposed amendments, likely to pass unchanged from their present form given the Government’s overwhelming majority, will remove all five of these requirements for restaurant and cafe licence applicants under the following circumstances:

  • The premises is located in a commercial centre
  • The proposed trading hours do not extend beyond midnight
  • There is no amplified entertainment on the premises

These changes follow changes to liquor licence application procedures introduced in late 2012 which did away with the need for a successful applicant to provide documentary evidence of compliance with fire, health and building regulations. The combined effect of these changes should see a properly prepared liquor licence application approved in as little as four weeks. Although the application will still involve a range of matters, including Police and Council consultation, town planning and physical inspections, the changes will still considerably reduce the professional costs associated with the preparation and management of the process.

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Fast Track Liquor Licence Transfers

We regularly receive enquiries from both vendors and purchasers of licensed businesses anxious to finalise the sale before the licence has been transferred.

We have a strong appreciation for the damage which often occurs to the business during the period between contract and settlement. If your contract is subject to a licence transfer, settlement can be delayed by up to 12 weeks, during which the goodwill, staffing arrangement and general wellbeing of the business can suffer sometimes irreparable damage.

Accordingly, we are routinely asked how the purchaser can take over the conduct of the business before the transfer has been approved, without unlawfully selling and supplying liquor. In the past we have developed a range of strategies for clients, such as devising ways for the purchaser to take on a caretaker role in the business prior to settlement. Caution has always been paramount given the risk, not only of severe penalties for unlicensed liquor sales, but closure of the business and potentially adverse findings in relation to the suitability of the purchaser to hold the liquor licence.

On a number of occasions we have succeeded in using the mechanism of the interim authority, which, if granted, authorises the holder to lawfully conduct the business in advance of the licence transfer.

Off the back of these issues we have suggested to OLGR that they consider adopting the system of an optional fast track process used in NSW where a purchaser has the option of taking the risk that the application for transfer will ultimately be refused. As the basis for refusal is largely specific to the history and character of the applicant, those opting for the fast track are rarely taking any genuine risk at all.

Recently we have been given reason to believe there may be a willingness within OLGR management to favourably consider the use of an interim authority as a de facto fast track option. As the process of granting interim authorities, under other circumstances, is well entrenched and requires no legislative amendment, we intend making more frequent use of this strategy in future to avoid the potentially significant damage to the business asset occasioned by the lengthy transfer process.

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Low Risk Liquor Licence Applications

Hot on the heels of last year’s cost and red tape reduction initiatives arrive a couple more very significant changes to the liquor licensing laws in Queensland. The first one has emerged without any fanfare (so far) and is in fact a brand new licence category: the cafe licence.

Since its inception in 1992 the Liquor Act has stipulated that food in licensed restaurants has to be prepared on premises, and must satisfy the meal definition, specifically, food that:

  1. is eaten by a person sitting at a table, or fixed structure
    used as a table, with cutlery provided for the purpose of
    eating the food; and
  2. is of sufficient substance as to be ordinarily accepted as
    a meal.

What this has meant is that businesses offering other kinds of food – perhaps prepared off site, or less substantial than a traditional meal – have been unable to obtain a liquor licence.

This situation has been resolved now with the acceptance of the provision of ?prepared food? as a principal activity within the Subsidiary On Premises licence class. Cleverly, the OLGR policy-makers have co-opted the prepared food references which appear in the licence fee sections in the Liquor Regulation to create the new class of liquor licence.

The new cafe licence now offers a range of options to food venues, especially those smaller venues unable to obtain a Small Bar Licence due to town planning restrictions.

The second and more recent change is the announcement this week of adjustments to procedural requirements for low risk applicants – namely restaurants and the new cafe licence.

Provided the licence has standard hours (10am to Midnight), there is no longer a need to produce a Risk Assessed Management Plan, no need to chase the consent of the land lord, and a more streamlined approach to criminal history checks! These changes will benefit both applicants for new licences and licence transfers in the relevant category.

What’s next? Watch this space.

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Liquor & Gaming Specialists
30 Prospect Street
Fortitude Valley QLD 4006 AU
T: 07 3252 4066
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