High Court: Judge was wrong to dismiss charge of breaching smoking ban
A High Court judge has ruled a District Judge was wrong to dismiss a charge of a breach of the smoking ban against a pub which had created a smoking area with a retractable roof.
In 2009 District Judge John Coughlan had ruled that a retractable canvass awning covering an enclosed laneway of Grace's Public House in Naas, was not a "roof" however Mr Justice Peter Charleton said "a roof is a roof" and this roof at issue created a fully enclosed area for smokers in breach of the ban.
Brookshore Ltd, the operators of Grace's Public House, North Main Street, Naas, Co Kildare was charged with being in breach of the smoking ban following an inspection by the HSE in April 2008 under powers it has to enforce the 2002 Public Health (Tobacco),
Following that inspection the HSE said that while nobody was smoking inside the bar, but they found smoking occurring at a completely enclosed laneway between two parts of the premises covered by a retractable canvas awning. The HSE argued that as the alleyway was entirely covered by a roof the pub was acting in breach of the ban.
However Graces, who denied any wrongdoing, argued that under the law the area was exempt from the ban. The claimed there was no roof but rather an awning similar to the ones outside butcher's shops to protect meats from the sun.
That case was heard at the District Court by Judge Coughlan, who after inspecting the premises, dismissed the charge. The Judge held that the area had no roof because the canvass awning was not a fixed or movable roof within the meaning of the act. He said that the area was exempt from the ban as it was not a place where smoking was prohibited.
On the basis of his findings of fact Judge Coughlan referred the matter, on a point of law by way of case stated to the High Court, asking the Court if he was correct in his determinations.
In his judgment today Mr Justice Charleton held that the smoking area was covered by a movable roof, and that the exception to the ban did not apply in this case. In this case the Judge added the District Judge was entitled to proceed to conviction for the offence charged.
"A roof is a roof," said the Judge added that the material which makes up a roof was "irrelevant."
The Judge said that it was not possible to accept an argument that any membrane that covers the upper surface of a room or premises which impedes the dispersal of smoke is anything other than a roof.
The Judge noted that the pub had claimed that the area, which was furnished with barstools varnished wooden counters and had a large flatscreen TV, was a place where customers could legally "while away their time watching TV, drinking pints and smoking to their heart's content."
However the Judge said that he was satisfied that the area was clearly designed to attract smoking customers to the premises where they could be comfortable entertained and protected from the elements by a continuous sloped canvas membrane.
Given the high level of rainfall in Ireland, especially during the summer, the Judge said that people find it unpleasant to stand outside while smoking a cigarette and drinking a pint of porter when the rain tumbles down.
People "want respite from the elements" and "don't want their drink to be watered down." Comfort and shelter were clearly the purpose of this awning. It was therefore a roof, and it made no difference what material it was made of.
