2023 Enforcement Action Plan for Alcohol and the Hospitality Sector

The aim of this implementation plan is

The aim of this implementation plan is:

• improving compliance, with a view to having a positive impact on quality of life, public order, health and safety, and fair competition;
• to provide legal certainty for citizens, businesses and organisations within the municipality of Apeldoorn by carrying out enforcement duties in a uniform manner;
• that appropriate measures are taken in the event of detected breaches or incidents, which, in terms of their nature, are as closely aligned as possible with the type of breach and, in terms of their severity, with the seriousness of the breach;

In 2019, the 2015 Alcohol and Hospitality Sector Implementation Plan was evaluated by hospitality business owners, representatives of the Sports Council, representatives of Koninklijk Horeca Nederland (Apeldoorn Branch), representatives of the police and relevant officials from the Safety and Justice Unit. The points raised during the meetings have been taken into account in the drafting of this implementation plan.

In 2023, the implementation plan was amended slightly, partly due to the change from the Licensing and Catering Act to the Alcohol Act.

The enforcement plan for alcohol and the hospitality sector is structured as follows: first, it provides a brief overview of how responsibilities and powers are allocated in the areas of supervision and enforcement. This is followed by a description of the various administrative law instruments that may be deployed. Next, the evaluation of the previous implementation plan is discussed, and a number of changes compared with that plan are explained. Finally, the enforcement protocol will set out how action will be taken in respect of the various types of offences from 1 January 2020.

Duties, powers and supervision

The mayor is primarily responsible for public order and safety. Alcohol licences are granted on behalf of the mayor. He also has a number of administrative law instruments at his disposal to safeguard public order and safety. The mayor is the competent authority for taking action against breaches of the Alcohol Act (AW). With regard to the General Local By-law, which also regulates various matters relating to the hospitality sector, the mayor is likewise the competent authority.

Supervision
Supervision is a form of prevention. By maintaining a presence, providing tools for self-regulation and ensuring compliance, and fostering good relations with business owners and quasi-commercial legal entities (such as sports clubs), compliance can be encouraged. In addition, smart supervision is primarily risk-based supervision of locations that warrant extra attention based on feedback from stakeholders. Finally, the principle of “high trust, high penalty” also applies: the self-regulatory capacity of businesses and quasi-commercial legal entities is assumed and relied upon. However, (repeated) breaches will result in severe sanctions.

Inspectors from the Prevention, Supervision and Enforcement (PTH) team have been appointed by the mayor to monitor compliance with the AW. The police also play a major role in monitoring compliance with regulations by hospitality venues.

The deployment of municipal inspectors has a significant preventive effect. As they are visible to business owners and quasi-commercial legal entities, it is clear that compliance with legislation and regulations is a serious matter, and that breaches are effectively penalised. Inspections are carried out both on a random basis and in response to complaints or reports.

Cooperation between the PTH team and the police
Municipal inspectors regularly join the police team to monitor compliance with laws and regulations at Caterplein during the evening hours. They also monitor other hospitality venues within the municipality throughout the year.

Enforcement Protocol

The mayor has a number of administrative law instruments at his disposal that can be used to enforce the law in the event of offences: suspending or revoking a licence, imposing an order subject to a penalty payment or an order subject to administrative coercion, imposing an administrative fine, and the “three strikes and you’re out” measure.

The enforcement protocol stipulates that action taken by the local authority will become more stringent if the offence persists or is repeated. Intervention then follows a number of prescribed steps. There may also be situations in which following the step-by-step plan is not advisable. It is therefore important to note that the following procedures are merely guidelines for enforcement officers. Circumstances may arise that require a deviation from these procedures.

Once a decision has been taken to impose an administrative measure, that measure must actually be implemented. This requires effective coordination between licensing authorities, supervisory bodies and enforcement agencies.

Withdrawal or suspension of the licence granted

Both the AW and the General Local Regulation (Apv) provide for the power to revoke a licence that has been granted. It is worth noting that the AW also sets out in detail the circumstances in which a licence must be revoked.

In addition to revocation, the AW provides for the possibility of suspending a licence for a maximum period of 12 weeks. Suspension may be used in many situations where revocation is also an option. If the licence is revoked, a new application procedure will have to be initiated. This is not the case if the licence is suspended. In cases where revocation is considered too drastic a measure, the licence may first be suspended for a specified period.

It should be noted, however, that where the law stipulates that a licence must be revoked (see Article 31(1) of the AW), the option of suspension cannot be used.

Order subject to a penalty payment
An order subject to a penalty payment means that a business operator is served with a notice requiring them to cease the infringement and to prevent its continuation or recurrence, on pain of forfeiting one or more penalty payments. This order requires the offender to bring the unlawful situation into compliance with the law or to refrain from committing the offence. The business owner is liable to pay a penalty payment the moment a breach is detected again. A predetermined sum of money must therefore be paid. The penalty payment can be imposed in three ways: a lump sum, an amount per unit of time, or an amount per breach. The amount of the penalty payment is assessed on a case-by-case basis, depending on the nature and severity of the infringement.

In some cases, an administrative order may be, or must be, imposed. Under an administrative order, the relevant administrative body takes direct action to put an end to the infringement if the business operator fails to do so within the specified time limit. The existing unlawful situation can therefore be brought into line with the applicable legal standards through the administrative body’s intervention. An example of this would be the closure of a catering establishment because no licence has been granted.

The power to impose a penalty and the power to impose administrative coercion cannot be applied simultaneously, but they can be applied in succession. This means that a choice will always have to be made between the two measures.

Administrative fine
In addition to the measures mentioned above, the AW empowers the mayor to impose an administrative fine. With regard to administrative fines, it has been decided to use this measure only in the event of a breach of the age limits laid down in the Act. For other offences, the aforementioned measures provide sufficient recourse.

Three strikes and you're out
The basic principle is that strict action must be taken against the sale of alcohol to under-18s. The “three strikes out” measure is an example of this. Retailers selling alcohol who are not required to hold a licence (supermarkets, department stores, delivery services) may be penalised if they sell alcohol to under-18s three times or more within a 12-month period. Under this sanction, the mayor temporarily revokes the business owner’s right to sell alcohol for a period of at least one week and up to a maximum of 12 weeks.

Various offences

The protocol set out below categorises offences according to the relevant legislation. A distinction must be made between breaches of the General Local Regulation 2014 (Apv 2014) and the Alcohol Act (AW). With regard to breaches of the Opium Act or the Gambling Act in hospitality venues, please refer to the relevant policy documents. This also applies to breaches of the Environment Act and the Decree on Activities in the Living Environment.

Breaches of the General Local By-laws

Offence APV article	Brief description	Administrative enforcement/ penalty payment	Withdrawal/suspension licence
2.28	Terrace without a licence	Penalty payment	N/A.
2.28 in conjunction with 1.4	Terrace in breach of licence	Penalty payment	Withdrawal after penalty payment proceedings
2.29	Standard offence closing times	Penalty payment	N/A.
2.29 in conjunction with 1.4	Breach of closing time regulations licensed	N/A.	First warning Followed by withdrawal
2.33A	Serving non-alcoholic drinks without a licence	Penalty payment	N/A.
2.33E	Prohibition on being open without staff present manager	Penalty payment	Suspension for committing offence 5 up to 12 weeks
2.34B, paragraph 1	Breach of serving hours	Penalty payment	N/A.
2.34B, paragraph 2	Should alcohol be served at social gatherings, or not? relationship with activity	Penalty payment	N/A.

Calculation of the penalty payment in the event of a breach of clause 2.29 regarding normal closing times
If a hospitality business does not hold an exemption allowing extended opening hours, the standard closing times set out in Article 2:29 of the General Local Regulations (Apv) apply. If a hospitality business remains open after these times, a formal enforcement procedure will be initiated. First, the intention to impose an order subject to a penalty payment is set out in writing. The offender is given the opportunity to submit their views. Depending on the views submitted, the order may or may not be imposed. If the penalty payment has been imposed and a further breach is detected, the penalty payment becomes due. Before proceeding with the recovery of that penalty, the business owner is notified by means of a notice of intent. Once the maximum penalty has been forfeited, a new order subject to a penalty may be imposed with a higher penalty amount.

Consequences of the withdrawal of an exemption in the event of a breach of the closing time under 2.29
If a catering establishment holds a licence to extend its opening hours and the conditions attached to this licence are breached, a warning will be issued for a first offence. If a further breach is subsequently detected, the formal enforcement procedure will be initiated. First, a written notice of intent to revoke the exemption will be issued. The offender will be given the opportunity to submit their views. Depending on the views submitted, the licence will be revoked for a period of one week. In the event of a subsequent breach, the same procedure will be followed, but the revocation will be for four weeks and, ultimately, for an indefinite period.

Breaches of the Alcohol Act

Breach of Article AW	Brief description	Administrative enforcement/penalty payment	Withdrawal/suspension of a licence	Administrative fine*	Three strikes out
3 (no licence applied for or refused)	Operating a catering or off-licence business without a licence	Imposing administrative sanctions upon first detection	N/A.		N/A
13, paragraph 1	Prohibition on serving alcoholic drinks anywhere other than in a catering business	Penalty payment	Suspension for committing offence 5 up to 12 weeks		N/A.
13(2)	Prohibition on serving alcoholic drinks on the premises of a off-licence without customer request	Penalty payment	Suspension for committing offence 5 up to 12 weeks		N/A.
14(2)	Prohibition of business activities in a restaurant or on a terrace	Penalty payment	Suspension for committing offence 5 up to 12 weeks		N/A.
19, paragraph 1	Ban on delivery services spirits	Penalty payment	N/A.		N/A.
19, paragraph 2	Ban on delivery services is weak alcoholic drink	Penalty payment	N/A.		N/A.
20, paragraph 1	Supplying alcoholic drinks to young people who have not been confirmed to be aged 18 or over reached	N/A.	Suspension for a third offence up to 12 weeks, after which the licence will be revoked	1565/3135 For the first 2 offence and	N/A.
Section 20(1) (in conjunction with Article 44)	Supplying alcoholic drinks to young people who have not been confirmed to have reached the age of 18	Possible administrative enforcement in the event of a ban on the sale of low-alcohol beverages being imposed drink		1565/3135	Yes
24, paragraph 1	Prohibition on being open without staff present manager	Penalty payment	Suspension for committing offence 5 up to 12 weeks		N/A.

24(2)	It is prohibited to be open without a manager being present or bar volunteer (semi-commercial)	Penalty charge from the second offence onwards	Compulsory IVA training for a first offence		N/A
25(1)	Ban on attendance of alcoholic beverages	Administrative enforcement	N/A.		N/A.
25(2)	Ban on the consumption of alcoholic alcohol in a public space	Administrative enforcement	N/A.		N/A.
29(3)	Licence/Appendix not present at work	Penalty payment	N/A		N/A.
Paragraph 35.2	Failure to comply with restrictions/regulations exemption	Customised Depending on regulations	Withdrawal Bespoke		N/A.
38	Incorrect information provide upon request	N/A.	withdrawal		N/A

• the first amount applies to a natural person or legal entity which, on the day the offence was committed, had fewer than 50 employees;
• The second amount applies to a natural person or legal entity which, on the day the offence was committed, had more than 50 employees.

Details of administrative enforcement in the case of a catering establishment operating under Article 3 without a valid alcohol and catering licence
If a catering establishment is operated without a valid alcohol licence, an order will be issued to cease the sale of alcohol and the intention to close the establishment will be communicated verbally. The offender will be given the opportunity to submit a statement of views. Depending on the statement submitted, a closure order will be issued. In doing so, a period must be allowed to enable the business owner to carry out the closure themselves. There may be cases where the situation is so urgent that closure is implemented first, and only subsequently is a written administrative enforcement order issued. This applies, for example, to situations where the safety of any visitors is seriously at risk.

The business owner may be given the opportunity to submit an application at a later date. In the meantime, however, the catering establishment must remain closed. After all, it is unclear whether, for example, the layout requirements are being met.

Calculation of the penalty payment in the event of a breach of Article 13(1) of the AW, which prohibits the supply of alcohol from a catering establishment for consumption elsewhere
If an hospitality establishment supplies alcoholic drinks for consumption elsewhere than on the premises, this constitutes a breach of the prohibition set out in Article 13(1) and a penalty payment will be imposed. The intention to impose the penalty payment will be confirmed in writing. The offender will be given the opportunity to put forward their views.

Depending on the comments submitted, the penalty may or may not be imposed. If the penalty has been imposed and a further breach is detected, the penalty will be forfeited. Before proceeding with the recovery of that penalty, the business owner will be notified by means of a notice of intent. Once the maximum penalty has been forfeited – that is, after four breaches – the licence will be suspended. This may be for a period of up to two weeks. In this case, a new hearing procedure must be conducted.

Breach of Article AW	Brief description	Administrative enforcement/penalty payment	Withdrawal/suspension of a licence	Administrative fine*	Three strikes out
20, paragraph 4	Prohibition on the presence of persons under influence	Criminal law	Suspension	N/A	N/A.
20(5)	Prohibition on driving under the influence	Criminal law	Suspension	N/A	N/A.

In the event of a breach of the above-mentioned articles, criminal proceedings may be brought in addition to the administrative measure of suspension. Under Article 252(1), first sentence, point 1, of the Criminal Code, the supply of alcoholic beverages to persons under the influence is a criminal offence.