HSE -v- Brookshore Ltd, Neutral Citation: (2010) IEHC 165. High CourtJudgment was given by Mr Justice Peter Charleton on May 19th, 2010.
Judgment
A laneway beside a public house that was covered by a retractable roof was not exempted from the smoking ban, as the area was totally covered by the roof. The composition of the roof was irrelevant.
Background
The case came to the High Court by way of case stated from the District Court. The law banning smoking in public places allowed for certain exceptions one of which was an unroofed area. At issue was whether the finding that a roof was not a roof was a finding of fact or a finding of law.
The respondent runs Grace’s public house in Naas, Co Kildare. The Health Service Executive inspected it in April 2008. It found a completely enclosed laneway between two parts of the premises covered by a retractable canvas awning. It was furnished with bar stools and wooden counters, which contained ashtrays. A large flat-screen television was erected on one of the end walls.
Grace’s pub had produced photographs of the area in which the awning was retracted, there were no bar stools and no ashtrays and it looked like an alleyway.
The HSE photographs showed the area completely enclosed, furnished and had ashtrays with cigarettes in them. The proprietors were charged with permitting smoking on the premises.
The case was heard on September 23rd, 2009, by Judge John Coughlan. He said that in his view, the awning, being made from canvas or other non-solid material, was not and could not mean a roof within the meaning of the Act. He was satisfied it was an outdoor area and dismissed the prosecution, awarding costs against the HSE.
In the case stated to the High Court, Judge Coughlan asked if he was correct in determining that the canvas awning was not a roof; was he correct in determining that the material from which it was constructed was a relevant and/or determining factor; was he correct in dismissing the case having regard to these facts, and was he correct in awarding costs against the HSE?
The HSE argued that the High Court was at large to decide whether the area had a roof or not, while counsel for Grace’s pub argued that the court was bound by the District Court’s finding of fact relating to the roof.
Decision
Mr Justice Charleton said he had found the photographs produced by the pub to be unconvincing. The reality of this area was that it was designed to attract smokers to the premises and into an area where they would be entertained and covered overhead from the elements.
The statutory provisions were clearly aimed at the public generally and the relevant section required very little in the way of statutory interpretation. The Act was passed in the interests of public health and used the word “roof” as an everyday expression.
“It is not possible for an argument to be accepted that any membrane covering the upper surface of a room or premises which impedes the ready dispersal of tobacco smoke is anything other than a roof.”
Comfort and shelter were clearly the purposes of this awning, he added. “It is there to keep off the elements. It also impedes the dispersal of tobacco. It is therefore a roof. It makes no difference if it is made of steel or slates, of canvas, of plastic or of glass. The area of Grace’s pub in question was covered at the material time by a retractable roof and the learned district judge was therefore entitled to proceed to conviction for the offence charged.”
Referring to jurisdiction, Mr Justice Charleton said the meaning of a word as set out in statute and the interpretation of the circumstances under which liability for a criminal offence may be established are matters of law.
The answers to the questions posed were, therefore: the part of the premises mentioned in the charge was covered by a moveable roof and the exception to the smoking ban did not apply; the material which made up a roof was irrelevant; the correct law was as stated in the judgment; the judge was not correct in making an award of costs against the HSE.
It may also be noticed that the level of costs awarded, at €10,000, was too high, he said. “This was a simple argument as to whether a prosecution could succeed on a charge carrying a monetary penalty of €3,000 or less.”
Any legal argument centred on the definition of a roof. Even a figure of a tenth of that awarded might be queried, he said.
The full judgment is on www.courts.ie
Colm Ó hOisín SC and Dylan Redmond BL, instructed by Byrne Wallace, for the HSE; Roger Sweetman SC and Maurice Coffey BL, instructed by Reidy Stafford Solrs, for Brookshore