Licensing board members have been left red-faced after being told they ”erred in law” when suspending an Angus publican’s licence to sell alcohol.
Karen Kennedy, who runs the Osnaburg Bar in Forfar, had her licence suspended for six months by the licensing board after she was convicted of drink-driving in February.
The board ordered the suspension to ”send out a message” to other licence holders but the decision has been overturned at appeal, after a senior lawyer showed its case was flawed.
Ms Kennedy had been banned from driving for three years at Forfar Sheriff Court after driving into a parked car outside the pub on January 26 at around 2.10am.
However, Forfar lawyer Brian Bell appealed the suspension on Ms Kennedy’s behalf and showed the conviction did not impact on her duties as a licence holder.
The sheriff judging the appeal found the board had ”exercised their discretion in an unreasonable manner”.
The subject of Ms Kennedy’s licence to sell alcohol came before the board after she told the council about her conviction.
On the night in question, Ms Kennedy said she cleaned some equipment after the bar closed before having two or three large measures of wine from her own alcohol not from bar stock.
She maintained she had not imbibed alcohol during licensing hours and the bar had a tight policy on this.
Options available to the board’s committee included revoking her licence, suspending it for up to six months, or endorsing it.
In a letter to the board, Tayside Police’s Chief Constable recommended the licence should be revoked under the Licensing (Scotland) 2005 Act.
It states licence holders are under obligation to prevent crime and disorder, secure public safety, prevent a public nuisance, protect and improve public health, and protect children from harm.
Councillor Alex King gave evidence at the hearing and reported Ms Kennedy had one previous analogous driving conviction and said alcohol had been consumed on the premises. Under cross-examination, he accepted the driving was after the bar closed and he had assumed Ms Kennedy was in charge of the licence.
He agreed there was no suggestion Ms Kennedy drank on the premises during licence hours.
Despite this, Mr King said he considered the chief constable’s report relevant and Ms Kennedy’s conduct had to be ”marked”.
Mr Bell, with reference to the Licensing Act (Scotland) 2005 and previous case law, argued Ms Kennedy’s actions had no impact in law on her duties or responsibilities as a licence holder.
He stated: ”The traffic offence committed some two hours after the licensed premises had closed to the public, which was in no way connected to her status as a personal licence holder, did not merit any additional penalty being imposed.”
Within the narration there was no reference to the offence impinging upon the appellant’s capabilities as the licence holder, under the 2005 Act.
He added: ”It seems to me that the only way Ms Kennedy’s duties as a personal licence holder are mentioned is the reference to her being seen leaving the premises in the early morning.”
Sheriff Kevin Veal concluded the offence had no relation to the licensee’s role, saying: ”In this circumstance I have concluded that the respondents have erred in law. I’m of the opinion that the members exercised their discretion in an unreasonable manner after being made aware of the not insignificant penalty earlier imposed on the appellant by the criminal court.”
A council spokeswoman said: ”We are aware of the decision and it will be reported to a future meeting of Angus Licensing Board.”
The pub in question remained open throughout the appeal process.
Ms Kennedy declined to comment.