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‘Paternalistic’ licensing laws in need of codification, webinar hears
Pic: Sam Boal/RollingNews

09 Sep 2021 / regulation Print

‘Paternalistic’ licensing law needs codification – webinar

While certain breaches of the licensing laws happened during lockdown, it is not clear that these will result in publicans losing their licences, a licensing webinar heard yesterday.

Organised by the Irish Institute of Continuing Professional Development, the webinar heard from barrister Jessica Bartak-Healy (small picture) that case law (R v Lancaster JJ 1891has established that the good character of a licensee should not be destroyed by one case of ”opening during prohibited hours”.

Bartak-Healy said it would be interesting to see whether a publican, who has opened on one occasion during lockdown, can rely on this precedent.

While a COVID breach would be valid grounds for objection to a licence renewal, there are proofs required.

In mid-June of this year, there were reports of authorities being unhappy with drinks being served in outdoor seating areas, without proper licences, she said.

Temporary measure 

The Government enacted temporary legislation to allow these premises to operate with outdoor seating.

The Civil Law Miscellaneous Provisions Act (2021) deemed additional outdoor seating areas to be legal, if the premises had already been licensed.

This temporary measure, brought in during the pandemic, is still in place, with no certainty as to how long it will remain in effect, Bartak-Healy said.

Thus, outdoor seating areas in a previously licensed premises are lawful.

Alcohol bought in an outdoor area must be consumed on the premises only, and not for takeaway purposes.

The outdoor area must be in compliance with all planning acts and must be used for lawful purposes only, with strict parameters as to use.

Objections to beer gardens on grounds of noise can be made under environmental legislation, the webinar heard.

However, those premises not operating in accordance with the liquor laws will go against “good character” requirements in future applications, Bartak-Healy told the webinar.

How the premises was run over the previous year is also a factor in applications on the annual District Court licensing list, she added.

Online process

Licensing applications have largely moved online through the Courts Service Online process CSOL, the seminar heard yesterday.

Manual applications for renewal are now the exception, and the online process notifies both the relevant fire authority and the gardaí, the webinar heard.

However, local authorities must still be served notice manually.

'Club’ applications or renewals will require specific proofs of the club’s purpose under prescribed rules, such as existence of a visitors' book.

In these cases, it is the club certificate, which is being renewed, rather than the licence.

Heavy fines or temporary closure orders may be the result of allowing underage drinking, which is a strict liability offence.

“A court has very little discretion when it comes to making endorsements in respect of underage drinking.

“Once a premises has three endorsements on the licence, it must be forfeited,” Bartak-Healy added.

Esoteric field

Licensing laws in Ireland are a “strange and esoteric field” in the words of specialist barrister Constance Cassidy SC.

Some statutes date back centuries, while other legislation is more recent. 

“Most authorities do believe there is a need for more codification of the laws,” said barrister Neal Horgan.

At the turn of the 19th century, the concern of the English parliament was to “restrain the regrettable excessive drinking of the Irish populace”.

The webinar heard that this paternalistic view has prevailed until today, whether or not this is justified.

“That’s why licensing is the way it is, in my opinion,” said Horgan.

Prior to the Licensing (Ireland) Act 1902, there was no limit on the number of licences that might be granted, just as there is no limit on the number of drivers’ licences.

'Reckless mischief'

The 1902 act came into being because of a belief that the number of licences was a “reckless mischief” to society.

This explains why a new publican’s licence needs the extinguishment of another licence.

The annual licensing court was introduced as a way of regulating licences, Horgan explained, and this is currently in the remit of the District Court.

Since 1986, publican licences are renewed directly with Revenue, but objections will still be heard in the annual licensing court each September.

The recording of yesterday’s webinar is available online and practitioners may obtain CPD points on viewing it.


Gazette Desk
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