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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> DPP v Lynch [2004] IEHC 159 (19 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/159.html Cite as: [2004] IEHC 159 |
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HC 291/04
RECORD NO. 2004 / 491SS
BETWEEN
COMPLAINANT/APPELLANT
DEFENDANT/RESPONDENT
COUSEL'S note of ex tempore judgment of Mr. Justice O'Caoimh delivered Monday, 19th July, 2004
This matter comes before this Court by way of an appeal pursuant to s. 2 of the Summary Jurisdiction Act, 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961, being a case stated by judge Bryan Smyth, a judge of the District Court assigned to the Dublin Metropolitan District arising out of complaints heard by him in the District Court in a prosecution by the Director of Public Prosecutions against the defendant/respondent, Annabel Fitzgerald Lynch in relation to premises at O'Leary's Cottage, 39, The Square, Skerries Co. Dublin.
The complaints are set out at para. 2 of the case stated. The case stated records at para. 5 (a) the fact that the respondent made an application on 22nd September, 2001, for a wine retailers on-licence in respect of O'Leary's Cottage, 39, The Square, Skerries and a licence was granted by the Revenue Commissioners. Subsequently on 12th March, 2002, the respondent, through her solicitor, made an application for a restaurant certificate in respect of the same premises and the application for the said restaurant certificate was granted by the District Court on the 27th March, 2002, in circumstances where an undertaking was given by the said respondent in relation to the provision of meals.
The case stated records the occasions on which the gárdai entered the premises in question and found that there were customers on the premises consuming beer at a time when no meal was being taken. The case stated at para. 5 (j) indicates that beer is allowed for consumption on the premises provided that the beer is consumed at the same time as and with the meal and paid for at the same time as the meal is paid for and the restaurant does not contain a bar. The case stated refers to the fact that no planning permission has been sought by the respondent to change the use of the premises from guesthouse to current use, namely a wine retailers on-licence and restaurant. This Court is not concerned with the enforcement of the planning code in these proceedings.
The case stated refers to the submissions that were made on behalf of the parties in the District Court. The issue, as pointed out by the learned District Court judge, is whether or not he was correct in law in finding that s. 6 of the Intoxicating Liquor Act, 2000 applied to these facts and not s. 26 of the Intoxication Liquor Act, 2000.
The case stated recites that counsel on behalf of the respondent submitted in the District Court that there was a dichotomy between s. 26 of the Intoxicating Liquor Act, 2000 and s. 6 of the Intoxicating Liquor Act, 2000
It was submitted in reply to these submissions that these sections dealt with separate situations. In particular, it was submitted that s. 26 of the Intoxicating Liquor Act, 2000 was the appropriate section as it refers specifically to the facts of this case, whereas s. 6 was more general in nature. Section 6, for example, was what one experiences when ordering food and drink in a hotel.
It was submitted that s. 26 of the Intoxicating Liquor Act, 2000 referred to a wine retailers on-licence to which a restaurant certificate attaches and that s. 26 provides that a person who is a holder of a wine retailers on-licence attaching to a restaurant may, subject to conditions, offer beer for sale for consumption on the premises provided that the beer is consumed at the same time as and with the meal and paid for at the same time as the meal is paid for and the restaurant does not contain a bar. Having heard the submissions of counsel for the Director of Public Prosecutions I am of the view that this submission is a correct statement of the law and that s. 26 of the Intoxicating Liquor Act, 2000 applies to the facts of this case. Each of the charges concerned in the summons referred to s.26. The learned District Court judge considered that there was a dichotomy between s. 6 of the Intoxicating Liquor Act, 2000 and s. 26 of the Intoxicating Liquor Act, 2000 and applied the situation in favour of the respondent. The District Court judge had a doubt about which section should be applied. He dismissed the summonses complaining about violations relating to s. 26 of the Intoxicating Liquor Act, 2000 and raised a question as to whether or not he was correct in law in finding that s. 6 of the Intoxicating Liquor Act, 2000 applied to the facts and not s. 26 of the Intoxicating Liquor Act, 2000. The question posed must be answered in the negative and I direct that the matter be entered/remitted before the District Court judge and proceed on the basis of my findings herein.
I award costs (including reserved costs) to the Director of Public Prosecutions.
Aindrias Ó Caoimh 18-8-04
