Health Service Executive v St Johnston Taverns Ltd and Others

JurisdictionIreland
CourtHigh Court
JudgeKearns P.
Judgment Date15 February 2013
Neutral Citation[2013] IEHC 69
Date15 February 2013

[2013] IEHC 69

THE HIGH COURT

[No. 1266]SS /2012
Health Service Executive (HSE) v St Johnston Taverns Ltd & Toland
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AND
IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

HEALTH SERVICE EXECUTIVE
APPELLANT

AND

ST. JOHNSTON TAVERNS LIMITED, MAURICE MARTIN TOLAND AND ANNE MARIE TOLAND
RESPONDENTS

PUBLIC HEALTH (TOBACCO) ACT 2002 S47(7)(D)

PUBLIC HEALTH (TOBACCO)(AMDT) ACT 2004

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

PUBLIC HEALTH (TOBACCO) ACT 2002 S47(1)

PUBLIC HEALTH (TOBACCO) ACT 2002 S47(3)

PUBLIC HEALTH (TOBACCO)(AMDT) ACT 2004 S16

PUBLIC HEALTH (TOBACCO) ACT 2002 S5(2)(A)

PUBLIC HEALTH (TOBACCO)(AMDT) ACT 2004 S3

HEALTH SERVICE EXECUTIVE (HSE) v BROOKSHORE LTD UNREP CHARLETON 19.5.2010 2010/21/5293 2010 IEHC 165

PUBLIC HEALTH (TOBACCO) ACT 2002 S47

PUBLIC HEALTH (TOBACCO) ACT 2002 S47(8)(H)

HOWARD v COMMISSIONER OF PUBLIC WORKS 1994 1 IR 101

MAXWELL THE INTERPRETATION OF STATUTES 12ED 1976 P28

INSPECTOR OF TAXES v KIERNAN 1981 IR 117

INCOME TAX ACT 1967 S78

MALONE ENGINEERING PRODUCTS LTD v HEALTH SERVICE EXECUTIVE (HSE) UNREP MURPHY 21.7.2006 2006/38/8034 2006 IEHC 307

CRIMINAL LAW

Licensing

Licensed premises - Public health - Ban on smoking in indoor workplaces - Smoking area - Exemption - Specified place - Statutory interpretation - Whether smoking area exempt from smoking ban - Whether area outdoors - Whether fixed or immovable roof - Whether 50% of perimeter of area surrounded by walls or similar structure - Health Service Executive v Brookshore Ltd [2010] IEHC 165, [2012] 3 IR 518; Howard v Commissioners of Public Works [1994] 1 IR 101; Inspector of Taxes v Kiernan [1981] IR 117 and Malone Engineering Products Ltd v Health Service Executive [2006] IEHC 307, (Unrep, Murphy J, 21/7/2006) considered - Summary Jurisdiction Act 1857 (No 43), s 2 - Courts (Supplemental Provisions) Act 1961 (No 39), s 51 - Income Tax Act 1967 (No 6) - Public Health (Tobacco) Act 2002 (No 6), ss 5 and 47 - Public Health (Tobacco)(Amendment) Act 2004 (No 6), ss 3 and 16 - Case stated answered (2012/1266SS - Kearns P - 15/2/2013) [2013] IEHC 69

Health Service Executive v St Johnston Taverns Limited

Facts: The appellant in this action was the Health Service Executive while the respondents were owners of licensed premises known as the ‘Fisherman”s Inn’. The appellant had sought prosecutions against the respondents on the basis that observations had been made of individuals smoking tobacco products within the premises contrary to s.47(1) and (3) and s. 5(2A) of the Public Health (Tobacco) Act 2002 as amended by the Public Health (Tobacco) (Amendment) Act 2004 (the ‘2002’ Act). It was the respondent”s claim that the incidents occurred in a smoking area situated at the rear of the licensed premises which came within the exemption provided for by s. 47(7)(d) of the 2002 Act, meaning smoking of a tobacco product was permitted within that area.

The matter came before the District Court on the 15 th June 2002 where the case was dismissed on the basis that the smoking area came within the s. 47(7)(d) of the 2002 Act exemption. The appellant appealed the decision by way of the case being stated.

It was the appellant”s claim that it was for the respondents to demonstrate that the smoking area clearly came within the exemption. It was further submitted that the smoking area was not truly outdoors as required by the legislation as it was surrounded by a wall, which was approximately 300 millimetres away from the actual smoking pagoda on all sides. Even if it was considered to be outdoors, it was submitted that the legislation required at least 50% of the perimeter to be free from a wall or structure. The respondents claimed that the legislation allowed for a covered external area to be considered as an outdoor smoking area and that the relevant perimeter was the edge of the wooden smoking pagoda and not the surrounding walls, in which case more than 50% of the perimeter was free from a wall or similar structure.

Held by Kearns J that on a reading of the case law on the subject, the District Judge had incorrectly interpreted the law before him. It was clear from various authorities that s. 47(7)(d) of the 2002 Act was to be given its ordinary meaning so that the exemption required an outdoor area of a licensed premises with a fixed roof and which had a surrounding perimeter that was at least 50% free of walls or similar structures. In the present case, the only means of access to the smoking area was through the licensed premises. Once in the smoking area, it was not possible to leave the smoking area to step into the open area. The smoking area could not be regarded as truly outdoors.

In relation to the perimeter surrounding the smoking pagoda, it was held that the gap between the edge of the wooden pagoda and the walls was so narrow that it would be right to describe the walls as surrounding and enclosing the smoking area when given its ordinary meaning. The walls were therefore considered as the relevant parameter for the purposes of the legislation which were clearly non-compliant with the requirement of 50% of said parameter being free from walls or similar structure.

Appeal allowed.

1

JUDGMENT of Kearns P. delivered the 15th day of February, 2013

2

This is an appeal by the Health Service Executive by way of case stated from the finding of the District Court that the smoking area situate to the rear of the respondents licensed premises came within the exemption provided for by s. 47(7)(d) of the Public Health (Tobacco) Act 2002 as amended by s. 16 of the Public Health (Tobacco) (Amendment) Act 2004.

3

On the 15 th June, 2012, District Judge Seamus Hughes stated a case pursuant to s.2 of the Summary Jurisdiction Act 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961, for the opinion of the High Court in which a series of six questions were posed. The questions arose in the context of three related prosecutions brought by the Health Service Executive pursuant to the provisions of the Public Health (Tobacco) Act 2002, as amended, against each of the respondents named above. The respondents appeared before the learned District Judge to answer complaints the subject matter of summonses served on them in which they were charged, inter alia, with the following offences, to wit:

4

a "(a) That on the 15 th day of April, 2010 at "Fishermans Inn" Main Street, St. Johnston in the County of Donegal within the Court Area and District aforesaid, the first respondent, St. Johnston Taverns Limited, was the occupier of the "Fisherman's Inn" Main Street, St. Johnston in the County of Donegal a licensed premises in so far as it is a place of work and therefore a specified place wherein there was smoking of a tobacco product in "Fishermans Inn" contrary to s.47 (1) and (3) of the Public Health (Tobacco) Act 2002, (as substituted by s. 16 of the Public Health (Tobacco) (Amendment) Act 2004) and s. 5 (2A) of the said Act of 2002 as inserted by s. 3 of the Act of 2004.

5

(b) That on the 15 th day of April, 2010 at "Fishermans Inn" Main Street, St. Johnston in the County of Donegal within the Court Area and District aforesaid, the second respondent, Maurice Martin Toland, was a Director of St. Johnston Taverns Limited, the occupier of the "Fisherman's Inn" Main Street, St. Johnston in the County of Donegal a licensed premises in so far as it is a place of work and therefore a specified place wherein there was smoking of a tobacco product in "Fishermans Inn" contrary to s. 47 (1) and (3) of the Public Health (Tobacco) Act 2002, (as substituted by s. 16 of the Public Health (Tobacco) (Amendment) Act 2004) and s. 5 (2A) of the said Act of 2002 as inserted by s. 3 of the Act of 2004.

6

(c) That on the 15 th day of April, 2010 at "Fishermans Inn" Main Street, St. Johnston in the County of Donegal within the Court Area and District aforesaid, the third respondent, Ann Marie Toland, was a Director of St. Johnston Taverns Limited, the occupier of the "Fisherman's Inn" Main Street, St. Johnston in the County of Donegal a licensed premises in so far as it is a place of work and therefore a specified place wherein there was smoking of a tobacco product in "Fishermans Inn" contrary to s. 47 (1) and (3) of the Public Health (Tobacco) Act 2002, (as substituted by s. 16 of the Public Health (Tobacco) (Amendment) Act 2004) and s. 5 (2A) of the said Act of 2002 as inserted by s. 3 of the Act of 2004."

7

The prosecution arose out of an inspection of the premises on the 15 th April, 2010 by Ms. Costello, an Environmental Health Officer employed by the Health Service Executive. According to the evidence before the District Judge, and as found by him, Ms. Costello observed smoking in a designated area of the licensed premises comprising of a wooden structure constructed within what originally appeared to have been a courtyard and was covered by a Perspex type roof.

8

The learned District Judge found that the smoking area, as constructed, did not offend the provisions of the relevant Act, and the charges were dismissed.

BACKGROUND FACTS
9

According to the Case Stated, the facts as proved or admitted or agreed or as found by the learned District Judge were as follows:-

10

a "(a) It was agreed that the Fishermans Inn was a licensed premises situate in Main Street, St. Johnston, County Donegal, which was owned by the first respondent and that the second and third respondents were directors of the first respondent. It was agreed that the Environmental Health Officer who was to give evidence was properly qualified and authorised to carry out the inspection that gave rise to the prosecution.

11

(b) Ms. Maeve Costello, an...

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