COVID 19 IS CLOSING THE DOORS OF MY RESTAURANT, STORE, HOTEL, WHAT NOW?
ADVICE ON COVID 19 DISASTER MANAGEMENT DIRECTIVES IN RELATION TO LIQUOR TRADE, SUPPLY & DISTRIBUTION
On 18 March 2020 the Minister in charge of the Disaster Management Committee of Government issued Regulations under Section 27 of Act 57 of 2002 which deals with the Covid 19 epidemic. These Regulations have a serious impact on the livelihood of all liquor traders.
To the extent of our ability we will try to guide you in the impact of the relevant provisions, bearing in mind that the Regulations, to our mind, are ambiguous in some respects.
The Regulations are applicable to all on-consumption licensed liquor premises as well as all off-consumption liquor licensed premises. As “on-consumption” and “off-consumption” are not defined in the Regulations but only qualified by “selling and consuming” of liquor, the question immediately arises whether such licensed premises are still on-consumption and/or off-consumption premises if liquor is not being sold and consumed. This leads to the question whether other commodities than liquor may still be offered and sold after the hours of limitation, and even whether the holder of an on-consumption licensed premises may serve meals after the hours of limitation and allow people to bring their own liquor as would clearly seem to be the position with an unlicensed restaurant as long as the total of people at any given point in time on or in the premises do not exceed 50 in total.
In interpreting the Regulations, the point of departure should be the purpose of the Regulations which clearly is the prevention of the spread of the virus. If this is the point of departure, then the question immediately arises why a limitation on off-consumption trading hours is deemed to be necessary but not for the greengrocer, the boutique selling clothes, the butcher, etc.
In our opinion the Regulation is arbitrary and devoid of serving its own declared purpose when it comes to off-consumption of liquor and we believe that a court of law will declare it to be invalid.
However, until a court of law does so, all liquor traders for off-consumption will have to abide by the hours of:
· Monday until Saturday from 09:00 in the morning until 18:00 in the afternoon; and
· Sundays and public holidays from 09:00 in the morning until 13:00 in the afternoon.
Please note that Saturday, 21 March 2020 is a public holiday.
We are of the opinion that this does not mean that a supermarket with a wine Section must close accordingly, it is only the wine Section that must be closed. Where you hold a licence in respect of premises where other commodities may also be sold, such as a deli or the Parks Shops in the Game Reserves, it also means that you must close your liquor Section, not your whole shop.
Let us, however, turn to the more difficult subject of premises where liquor is being sold and consumed.
The first point to highlight, is that Regulation 8 does not refer to “liquor licensed premises”. The Regulations may, accordingly, apply to on-consumption liquor licensed premises, but only as long as they are premises where liquor is being sold and consumed. The prohibition is against selling and consuming and it is not clear whether this is one concept – sell and consume – or whether the concepts can be separated as “or” or even “and/or”.
Using the purpose of the Regulations as point of departure, it must be a single concept, namely selling and consuming.
If we are correct in this assumption, it follows that, as long as you comply with the 50 limit of Regulation 3 and you do not sell liquor for consumption on the premises, you may remain open for other business, including the selling of food, allowing gambling, or as in the case of Pedro’s Cigar Bar, selling of cigars for smoking.
If the Regulations aims at limiting the sale and consumption of liquor as one concept, we cannot see that it prohibits a person, whether it is licensed or not:
· From selling food and allowing patrons to consume is beyond the limitations hours but limited to not more than 50.
· A proprietor of a food business, whether it is licensed or not, from allowing customers to bring their own liquor and consuming it with food. (remember that the definition of selling prohibits displaying for sale, not having liquor visible on tables but not for sale).
We are of the opinion that as long as you do not sell liquor for consumption beyond the limited hours, you can carry on with the rest of your business.
If “selling and consumption” actually is intended to mean selling or, or and/or consumption, then allowing patrons to bring their own liquor outside the limited trading hours is not allowed.
Before dealing with premises where accommodation is sold, we wish to record that the above is what the interpretation of the Regulations is, in our opinion. Bearing in mind the purpose of the Regulations, it should have been better worded to limit all business activities which draws people in resulting in groups being formed, to be barred, be it eating, church, theaters, gambling places, political gatherings, etc keeping the limitation to a number of people that may be present and better prescribing the process of cleaning up behind them.
No special or event licenses may be considered or approved; This restriction will apply to all temporary, event and occasional licenses. The prohibition against gatherings of more than 100 persons applies to all events, functions, social meetings, etc.
Now we must finally turn to the issue of premises where accommodation is being sold.
We all know that accommodation is not defined in the Regulations, though it is in the various elements of liquor legislation. In order to make sense of Regulation 8(2), we have to decide what the word “accommodation” entails:
The question might sound stupid until you are asked to state the number of persons your restaurant, classroom, car, bar or hotel can accommodate. Clearly accommodation must have a more limited meaning to make sense of Regulation 8(2) which endeavours to say something different than Regulation 8(1). We would suggest that the sub-regulation applies to “premises” where you pay to use it, such as a hotel room, a wedding venue, a function hall, etc, but excluding a bar where you only pay for the drinks and snacks, a church, university facilities, class rooms, etc., etc.
The intention clearly is not to inconvenience booked-in guests of a hotel, but not the man off the street who comes in for a meal and a drink. Likewise, a venue which you paid for to use, will be included, always bearing in mind the 100 limitation.
We are of the opinion that all places where you pay to use a specific space, whether included in the price with other benefits or not, are included in the concept of “premises where accommodation is being sold” and only in respect of those specific facilities only the person who has paid, may use it. This means that all hotel guests may use the whole of the hotel where liquor is being served, but not the person coming in from outside for a meal. It will include the area hired for a specific occasion and only in respect of the attendees who are invited, etc.
If this is not so, then hotels which are not bona fide hotels, having rooms but that not being the real business, can allow up to 100 people at any time and do the business a night club or restaurant is prohibited to do beyond the limited hours.
Even better, this Regulation should be revisited by the Minister, as should Regulation 8 on off-consumption.
Any person who convenes a gathering that is attended than more than 100 persons, is guilty of a criminal offence;
Any person who allows more than 50 persons to be present on premises where liquor is sold and consumed, is guilty of an offence;
Any person who hinders / interferes with or obstructs an Officer who enforces the Disaster Management Regulations is guilty of an offence;
On conviction of a person who contravenes the Regulations may be liable to a fine or to imprisonment for not more than six months or to both a fine and imprisonment.
Disclaimer: The material above is provided for general information purposes only and does not constitute legal or professional advice. Neither the author nor the publisher accepts responsibility for any loss or damage that may arise from reliance on information contained in this article.