The podcast: Recent Episodes
AJ Halkes
Many of my clients don’t have legal problems; they simply face business challenges. Solutions frequently involve the law; however at the end of the day it’s usually all about achieving the best business based results. Nothing published here is legal advice.
In these podcasts I’m adopting a relaxed and informal conversational style; the type I use in the chats my clients are frequently having with me. We discuss many challenges faced, pragmatic moves and then develop solutions; so please remember nothing here is a substitute for specific legal advice on any issue.
In this 7 min podcast I discuss in outline the vaccine pass regulations in Hong Kong as to challenges now faced by a “person-in-charge” of a specified premises and what they may mean.
"Person in charge
(a)in relation to any specified premises, means the person who is responsible for the management or is in charge or control of the premises;"
* note: this is not applicable to specified public transport carriers
In this 6 minute podcast I swiftly cover how "extending” a food business outside of a licensed premises boundary may represent a danger to the licence itself.
As Covid closure orders, business trading limits and even a desire for fresh air are increasingly forcing customers onto the streets the law may not be quite as friendly to such activity as some people think.
In this podcast I talk about some of the (many) notices required in Hong Kong with a focus on Liquor, Food and Covid regulations.
Please follow the link below for list of notices discussed:
https://www.ajhalkes.com/notices
It pays to have a back up plan to protect your business ahead of staff “departures“ for whatever reason. Following my discussion of "temporary absences" the "reserve licensee" is a formal appointment, of an individual, to step into the shoes of the liquor licensee if or when needed. This adds continuity, speeds up processing time on applications and can even smooth over the process of transferring a liquor licence. The form can be found below: https://www.ajhalkes.com/fehb266
Being a Liquor Licence holder comes with responsibilities on both the business front and the legal compliance front. In this podcast I run through the process of applying for a "temporary absence" as a Liquor Licence holder and thereby temporarily passing legal responsibilities to another individual. This can be for a number of reasons as discussed in the podcast; as we all need a break from time to time. https://www.fehd.gov.hk/english/forms/fehb239.pdf
I get many questions about Liquor Licensing Board hearings and what happens at them. This podcast is a dip into those hearings, when they occur, procedures involved and how they are normally held. The podcast is slightly longer than usual as there’s a fair bit involved.
The Municipal Services Appeals Board decides Appeals in Hong Kong related to licensed premises and is where the practice on liquor sale has mainly evolved.
This podcast gives you an outline understanding of how the Board is made up, who can file for an appeal, timelines and how it operates.
In this podcast I look at the question of "When might take-away liquor bans be imposed?" and discuss two recent important Appeal decisions.
Restrictive licensing conditions can cause a major negative impact on business, where delivery platforms are vital to many operators, and Covid related factors have added complexities; making this topic more relevant than ever.
Official visits to F&B premises in any form can be a challenge to manage and you need to ensure that you act appropriately.
In this short update I share a few thoughts as HK sees increased Government visits being made to businesses due to "covid".
(latest Covid regulations):
https://www.gld.gov.hk/egazette/pdf/20212528e/egn2021252872.pdf
(CCTV guidance):
https://www.pcpd.org.hk/english/resources_centre/publications/files/GN_CCTV_Drones_e.pdf
The recent judgement in HCMA597/2019 (handed down on September 23, 2020) contains significant guidance for the construction industry and provides confirmation of what this writer has always believed to be the case, in respect of the steps and measures required to prevent mosquito breeding at law; in order to mount an effective defence to a prosecution under s.27(3) of the Public Health and Municipal Services Ordinance, Cap. 132.
I discuss how to get a “bar” back into business in this highly restrictive environment via one simple step. This may be better for you than staying closed or struggling against uncertain regulatory headwinds.
I run through considering leaving mid-lease via these clauses or using them during negotiations to get a new, or more balanced rent deal right now. The totally unexpected events of the last few months and freshly legislated limits more recently placed on the use premises are more relevant today than ever before.
Some thoughts on Government proposed subsidies for “catering” and what they might mean to you. Can you now start to look 6 months ahead and perhaps are even allowed to “staff up” and create new jobs ... or would you take the short view 3 months down the road and opt for a lump sum? And as for a bar or nightclub premises shut by law there’s a “further” $50,000; plus what the FEHD have said about that ... so far.
The proposals the HKSAR Government is making:
I. Proposals on job retention, job creation and job advancement
(1) Implementing the Employment Support Scheme ($80 billion):
• The Government will provide wage subsidy to eligible employers to retain the latter’s employees. Employers have to undertake that they cannot implement redundancy.
• All employers who have been making Mandatory Provident Fund(MPF) contributions for employees are eligible, except those on the exclusion list (employees of the HKSARG, statutory bodies and Government subvented organisations)
• The wage subsidy to be provided by the Government is calculated based on 50%of the monthly salary, which is capped at $18,000 (i.e. the median monthly wage in Q2 2019), for a period of six months.
II. Proposals on providing relief to hard-hit sectors
(15) To support catering sector
(a) To provide one-off subsidy ranging from $250,000 to $2.2 million to catering outlets* based on the size of their premises. The subsidy will be disbursed in two tranches, and not less than 80% of the subsidy has to be used to pay employees’ salaries. A licencee is required to undertake that there would be no redundancy of staff for 3 months after obtaining the subsidy, and it will not apply for subsidy under the Employment Support Scheme
(b) Each eligible catering outlet directed by the Government to close whole of its licensed premises (including karaoke establishments, bars/pubs and nightclubs) is eligible for a further one-off subsidy of $50,000
(c) To provide one-off subsidy of $50,000 to tenants of cooked food/light refreshment stalls at public markets managed by the Food and Environmental Hygiene Department (FEHD);
expect to benefit 17 000 catering outlets and 920 market stalls, and their employees.
- eligible general restaurants, light refreshment restaurants, marine restaurants and factory canteens
I discuss why a Bar Endorsement on your liquor licence matters from 6pm tonight and add some thoughts about the regulations including “bar” or “over the counter“ interactions. ------------------------------------------------
G.N. (E.) 23 of 2020
PREVENTION AND CONTROL OF DISEASE (REQUIREMENTS AND DIRECTIONS) (BUSINESS AND PREMISES) REGULATION
Directions in Relation to Catering Business
I hereby exercise the power conferred on me by section 6 of the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation to direct that, during a period of 14 days beginning at 6:00 p.m. on 3 April 2020:
— 1. Any premises (commonly known as bar or pub) that is exclusively or mainly used for the sale or supply of intoxicating liquors as defined in section 53(1) of the Dutiable Commodities Ordinance (Cap. 109) (“intoxicating liquors”) for consumption in that premises must be closed.
- Where a catering business sells or supplies food or drink for consumption on its premises, any part of the premises that is exclusively or mainly used for the sale or supply of intoxicating liquors for consumption in that part must be closed.
(2 April 2020 Secretary for Food and Health)
Here I talk about words you may find in some leases that could help your discussions with landlords in these critical times.
I quickly review the new regulations and suggest why rents could now be halved for the F&B sector given the recent regulatory removal of 50% of the utility of premises to conduct seated food and beverage business
The new regulations extracted from the government statement:
(a) the number of customers at any premises on which food or drink is sold or supplied for consumption on the premises (catering premises) at any one time must not exceed 50% of the normal seating capacity of the premises;
(b) tables available for use or being used by customers within any catering premises must be arranged in a way to ensure there is a distance of at least 1.5 metres or some form of partition which could serve as effective buffer between one table and another table at the premises;
(c) no more than 4 persons may be seated together at one table within any catering premises;
(d) a person must wear a mask at any time within any catering premises, except when the person is consuming food or drink on the premises;
(e) body temperature screening on a person must be conducted before the person is allowed to enter the catering premises; and
(f) hand sanitisers must be provided at any catering premises for any person at the premises.
Here I take a few minutes on best practices, as many have deployed for a considerable time, add a few ideas and stress this information must get to your customers and to the government ... and don’t forget staff and customer temperature checks.
In this podcast I talk about cutting payroll by 50% whilst not causing extreme hardship, maintaining operational ability for much reduced business load and building a two team structure that protects your operations against total closure.
In this first AJ Halkes podcast I discuss some ideas about how to deal with landlords in these difficult times. It’s only about six minutes long and a new way for me to communicate with you all; I hope you find it useful.