In the Matter of the Licensing Acts 1833 to 2004 and the Matter of an Application by Peter Kingston.
Licensing - Appeal- Intoxicating liquor - Declaration - Application for declaration that extension to premises fit and convenient to be licensed - Factors to be considered - Traffic hazard - Demand in vicinity - Number of licensed premises in vicinity - Whether extension to premises fit and convenient to be licensed - Licensing (Ireland) Act 1902 (2 Edw. 7, c. 18) section 6 - Intoxicating Liquor Act 1960 (No. 18), section 15.
The High Court (Mr Justice Murphy); judgment delivered December 21st, 2005.
There is no constitutional right to a liquor license or a renewal thereof. They are only rights granted by statute, subject to limitations and conditions prescribed thereby. The same principles apply to the grant of a declaration that premises were fit and convenient to be licensed pursuant to the 1960 Act. In that respect, "unfitness" had to do with the premises themselves, whereas "inconvenience" included the location of the premises. As the criterion of adequacy is not relevant to an application for a declaration under the 1960 Act, the court is entitled, pursuant to section 4 of the Licensing (Ireland) Act 1833, to have regard to the number of public houses in the neighbourhood but not the number of extensions for night clubs. Moreover, the court is not entitled to have regard to the future apprehensions of the Garda insofar as public order is concerned.
The High Court so held in granting a declaration, pursuant to section 15 of the Act of 1960, that the premises were fit and convenient to be licensed.
Constance Cassidy SC with Michael McGrath BL for the applicant; Alice Fawsitt BL for the objectors.
Mr Justice Murphy said that the application in the instant case was made pursuant to section 15 of the Intoxicating Liquor Act 1960 for a declaration that an extension to premises known as the Classic Bar in South Main Street, Cork would be fit and convenient to be so licensed. The applicant was one of several partners developing the premises.
Mr Justice Murphy said that an applicant had to show that if the acquisition, construction or alteration, as the case may be, of premises were completed and the application for a grant of a certificate were made and no objection on the ground of the character, misconduct or unfitness of the applicant were made on the hearing of the application, it would be proper, having regard to the provisions of the Licensing Acts 1833 to 1960, to grant the application. The matter arose in relation to an appeal from the Cork Circuit Court refused to extend an existing license attaching to the premises to be used primarily as a nightclub.
The reason for the refusal was on the basis that the premises were not fit to be licensed and were inconvenient, on the evidence of Sergeant Cronin of the relevant Garda station that the premises were too large to inspect, that the level of intoxication in Cork city was too high, that the licensee could not have control of the premises and that it was on a main artery of the city. The Circuit Court also held that the number of licensed premises was adequate.
The evidence before the High Court was that the applicant and his partners, who were experienced and successful businessmen in the licensed trade, held the premises in question on a 25-year lease. The applicant's engineer stated that the premises would not attract an extra 750 people into the area, but would rather provide a service to those who were already in the neighbourhood. His evidence was that the proposal was in response to a growth in patronage in the area which had been established.
A member of the ambulance service raised objections in relation to the number of exiting patrons who would block the road in the case of emergencies. The chief fire officer of the city had no objection to the declaration sought. Sergeant Cronin expressed concerns in relation to public order problems at closing time due to the number of patrons exiting the premises and that the premises were too large to inspect. The applicant stated that he had attempted to meet all of the objections raised by, inter alia, deploying extra security staff and referred to a list of extinguished licenses in the area, submitting that was a relevant factor which the court should take into account.
Counsel for the applicant made submissions in relation to the character of the applicant, the situation, fitness and inconvenience of the premises and the adequacy of existing licensed premises in the neighbourhood. In relation to the first matter, she said that there was no objection to the character of the applicant or his partners. In relation to the other matters, she stated that the court was entitled to consider the number of public houses in the area but not the number of night clubs. Under the criterion of fitness, reference was made to Whitesheet Inn Ltd 2 IR 156, where the court held that it should have regard to the fact that planning permission had been granted for the development, she submitted that the fire officer had no objection to the plans for which permission had been granted. She submitted that adequacy was a ground of objection which was confined to an application under section 18 of the Intoxicating Liquor Act 2000 and was not a valid ground in the present application.
Mr Justice Murphy said that the scope of the courts in granting declarations and licenses depended on the interpretation and application of the statutory underpinning of such controls. The refusal or revocation of a license was a matter in the public interest and not a punishment. There was no constitutional right to a liquor license or a renewal thereof. They were only rights granted by statute, subject to limitations and conditions prescribed thereby.
However, it was not the function of the Licensing Acts to restrict, but to regulate business. Mr Justice Murphy stated that the same principles applied to the grant of a declaration pursuant to section 15 of the Act of 1960.
Applying the principles in T.J. Cummins IR 67, he said that the court was not entitled to have regard to the future apprehensions of the Garda insofar as public order was concerned.
Stating that the criterion of adequacy was relevant to an application under section 18 of the Intoxicating Liquor Act 2000, but not to a declaration under section 15 of the Act of 1960, the court was entitled, pursuant to section 4 of the Licensing (Ireland) Act 1833, to have regard to the number of public houses in the neighbourhood but not the number of extensions for night clubs, Mr Justice Murphy was satisfied from the evidence that there had been an increase in demand for the services provided by licensed premises. Mr. Justice Murphy said that the applicant was also required to show that the premises would be fit and convenient.
"Unfitness" had to do with the premises themselves, whereas "inconvenience" included the location of the premises. For the purpose of deciding the issue before the court, Mr Justice Murphy was satisfied that the structure and design and proposed operation of the premises rendered it fit having regard to planning, fire certificates and the restriction of patrons. In relation to the criterion of convenience, he noted that the premises were not on a main arterial route, that it was situated away from identified flashpoints and that it was proposed to have a ratio of security staff to patrons of 1:50.
It was common case that the applicant was of good character and endeavoured to meet the concerns of the objectors.
Accordingly, Mr Justice Murphy granted the declaration sought subject to conditions, including that the applicant maintain security levels at a ratio of 1:50, that the applicant provide security staff training, that CCTV records are maintained for two months, that adequate food is provided for patrons and the premises is properly maintained.
Solicitors: Patrick Buckley & Co. (Cork)for the applicant; Edward O'Hanlon for the objectors.
Paul Christopher, barrister