Judge issues warning to pubs and nightclubs over smoking areas

Judge Mary Fahy.

Nightclubs, bars and other licensed premises must comply with strict smoking area regulations or they will not be granted special exemptions in future.

Judge Mary Fahy issued the warning to all licensed premises in her area while dealing with breaches of smoking regulations by Shane O’Connor of DNA nightclub, Ball Alley Lane, Eyre Square, and John Carmody, of An Púcán, Forster Street, both of whom pleaded guilty at Galway District Court to failing to prohibit smoking in specified areas of their respective premises, contrary to Section 47 of the Public Health Tobacco Act 2002.

Mr O’Connor was prosecuted for being in charge of DNA night-club on August 3 last when it failed to prohibit smoking in a specified area.

Skeffington Arms Ltd, trading as DNA nightclub, was also prosecuted for the same offence.

Mr Carmody, of Connacht Taverns Ltd., Connacht Hotel, Dublin Road, Galway, was prosecuted for being in charge of An Púcán, Forster Street, on August 2 last, when he failed to prohibit smoking in two specified areas, namely a covered area at the side of the premises and a large covered courtyard at the rear.

Connacht Taverns Ltd, the company which owns An Púcán, was also prosecuted for the same two offences.

The court heard both premises failed inspections which were carried out by the HSE of their designated smoking areas in early August.

Regulations stipulate designated smoking areas in licensed premises must be situated in a roofless area open to the elements.

HSE inspectors found the designated smoking area in DNA nightclub was a room with a roof, while two outside designated smoking areas at An Púcán had overhead canopies.

Judge Mary Fahy said she was concerned that both premises had initially ignored the HSE’s findings and it had been forced to issue proceedings and prosecute both companies and management at both premises to get them to comply.

A solicitor for the HSE told the court that management at DNA nightclub had now assured him the smoking area would be opened up and plans were afoot to have the roof taken off.

Judge Fahy said that would then make the premises the same as every other premises in the country.

“What I’m concerned about is that warnings were given by the HSE and totally ignored,” she said.

The court heard Mr O’Connor had given an undertaking, when the matter first came before the licence applications court in early December, that the smoking area in the night-club had been cordoned off from the public and it would remain so over Christmas.

Judge Fahy had adjourned the matter to allow time for the company to comply with the HSE’s requirements and she noted the undertaking given.  She adjourned the matter to February 6 for sentence on condition the undertaking continued.

She warned that any breach of the undertaking between now and Christmas would be a contempt of court which would be dealt with by way of custodial sentence.

In the case of An Púcán, Mr Carmody and the company, Connacht Taverns Ltd, entered a plea last week to the breaches of smoking regulations on August 2 last.

The HSE’s solicitor told the court it would be prudent to get an undertaking from Connacht Taverns Ltd. and he wanted Mr Carmody to give an undertaking to the court that the smoking areas in An Púcán would comply with the regulations pending sentence on February 6.

He confirmed the premises was compliant with the regulations on re-inspection of its smoking areas recently.

Mr Carmody went into the witness box and gave an undertaking that the premises would comply with smoking regulations.

“In this case, a number of warnings were given by the HSE and those warnings were ignored and then this prosecution followed,” Judge Fahy noted from the court file.

The HSE solicitor said the owners engaged with planners in 2015 and agreed the areas would be compliant but when an inspection took place in 2016 and again last August, the areas were not compliant.

He explained that overhead canopies acted like a roof and, when in use, they made the areas non-compliant, but when they were retracted the areas were compliant because they were in the open air.  He said the August inspection took place in the evening and it had been raining.

Judge Fahy asked the solicitor if he wanted the canopies removed and he said there was no need, and as long as they remained retracted the premises was compliant.

Judge Fahy said she didn’t like the sound of that.

“They can open them out when no one is looking.  I’m very concerned for fair-mindedness and that every premises is treated fairly.  And if some premises are being ‘cute’ and have canopies available to them, then they cannot be technically compliant unless these smoking areas are completely open to the elements.

“That is the law. I didn’t write it. I do not think a premises should be allowed the option of having a temporary roof when it suits.

“If you lived in Galway, you would know it rains five nights out of seven,” the judge said to the Dublin-based solicitor.

A solicitor representing Connacht Taverns said Mr Carmody was giving an undertaking that there would be a one-meter gap between the canopies.

Judge Fahy did not appear impressed.  She said it was up to the prosecution to ensure the premises was compliant and the Gardai had a role in policing smoking areas.

“Any premises that comes before this court looking for special exemptions will not get them until they are fully compliant with smoking regulations,” Judge Fahy warned.

Mr Carmody told Judge Fahy he was responsible for An Púcán and would be happy to give undertakings to the court and the HSE to be compliant with smoking regulations.

Judge Fahy adjourned sentence for both premises to February 6.

The HSE solicitor advised the judge she could disqualify a premises from selling cigarettes for three months when it came to sentence for breaches of smoking regulations.

“I expect you to open the law to me on that on February 6.    Thankfully, these type of prosecutions are few and far between,” the judge replied.