Licensing

Table of Contents

Bodies Involved

Intoxicatating liquor licensing control is undertaken under the auspices of the District Court and the Circuit Court and their respective offices. The Garda Siochana is intimately involved. The Fire Authority has also been given a role within the last 40 years.

The licensing system is focused on public order in the control and regulation of the sale of alcohol. The Gardai focus on the fitness of persons to hold a licence and their ability to manage and control the premises.

The fire authority element was introduced after the Stardust fire in 1981. The Fire Services Act provides a direct role for the fire authority at various stages in the licensing process.

On Licences

In strict terms a publicans licence is a spirit retailers on licence. Licensees are permitted to sell spirits, wine, beer cider and home-made wines.The vast majority of such licences are unrestricted. There still exists some which are subject to limitations. A handful of six-day licences and early closing licences still exist.

Some categories of more restrictive licences were formerly more common. Most have been substituted by standard publicans on-licences or off-licences. For example, a Beer Retailers on licences permits the sale of the relevant category of liquor only.

Off-licences

An off-licence permits the sale of intoxicating liquor for consumption of the premises.

The spirit retailers off-licence allows the sale of spirits only in closed vessels.
A beer retailers off-licence authorises the sale of beer and cider.
A wine retailers off-licence permits the sale of wine other than in open vessels of quantities at least one pint.
A cider retail off-licence allows for the sale of retail of cider and perry for consumption off the premises.
A sweet retailers off-licence permit sale of home-made wines and mead off the premises. They are rarely found alone.

In practice the above licences exist as part of a suite of licence to allow for the sale of intoxicating liquors generally.

Tax clearance & Excise Licence

The grant and renewal of most licenses require the holder to have a valid tax clearance certificate. In common with tax clearance legislation generally, there are anti-avoidance provisions which require for example each of a number of partners and the controllers of companies, each to have the requisite certificate.

There is a limited facility for continuation of a licensed business while an application for a tax clearance certificate is pending.

Excise duty is payable on grant of the licences by the Revenue Commissioners.Many licences are subject to a flat rate of excise duty. Off-licence excise duty is generally a flat rate duty.

In the cases of many including a publicans ordinary licence and the hotel premises licence, the duty is based on the annual turnover. The legislation lays down the licence fee/excise duty applicable in respect of the relevant bands. The turnover must be declared as part of the application.

The Licence

A licence must exist in respect of a particular premises. It authorises a person to conduct the licensed business in the premises concerned. It is a basic principle that the licence is attached to the premises and cannot exist separate to it.

A licence holder is obliged to have custody and control of the licence.A licence holder a person carrying on a licensed trade is obliged to produce the licence on demand by an officer of Revenue. Failure to do so is an offence. The District Court judge may require production of the licence.

The District Court office maintains a register of licences for the District. It is to record new licences convictions, renewals transfers and certain other matters affecitng the licence.

The Register of Licences may be inspected by a member of the public on paying the prescribed fee. An extract register may be made available.

Evidence of the licence may be given by extract from the Register, Where the licence is lost an application may be made for a substitute licence.

Holding the Licence

The licence may be held by an individual, partners or a corporate. It may be held by a nominee on behalf of a corporate.
The licence should be held by the beneficial owner of the premises.

Formerly it was assumed that a company could not hold a licence because it could not be shown to have the requisite character. This is not accepted in modern times. However in practice a nominee may hold for a company.

The methods for transfer and sale of a licence to another premises involves the extinguishment of the licence and the use of statutory provisions for the grant of a substitute licence for the other premises.

Relates to Premises

The licence holder must be in control and in possession of the premises. The licence holder must usually have the lowest estate in the premises which maybe the freehold a lease or tenancy. A mere licence (of property) is not sufficient.

The licence relates to the premises concerned. This is the licensed premises. The licensed premises must be a defined area.

New licences granted in modern times have court maps lodged upon the application. In older cases other evidence may be required as to the extent of the premises licensed.

The definition of the licensed premises is important as there are restrictions on opening it into unlicensed areas. Making a connection with an unlicensed area is inconsistent with the nature of the licence. It is an offence in itself, to make a connection with an unlicensed area which is used for public entertainment resort or a refreshment house.

An Garda Siochana are to have access to the premises. They should have copies of maps of the extent licensed for newer premises.

Area Licensed

The extent of licensed area is important as it defines of the area in which the trade may be conducted and the area subject to the special supervision of the authorities. Provided the unlicensed area does not fall within the above categories, it may be possible to have some degree of interconnection provided the Gardai are given access over those other areas.

A material alterations to the premises may invalidate the licence. Accordingly, where substantial alterations are made which enlarge the area used for the conduct of the business, a new licence is generally required. As set out in the separate section, this type of licence need not usualy be purchased. There are provisions whereby a substitute licence may be granted.

Significant works may take place within the licensed area without requiring a new licence. Planning permission and building regulation obligations may apply. If there is a change in the extent of the licensed area or if is opened up to connected to an unlicensed area, a new licence is likely to be required.

Court & Objectors

The fire authority element was introduced after the Stardust fire in 1981. The Fire Services Act provides a direct role for the fire authority at various stages in the licensing process.

Third parties such as members of the public adversely affected by a licensing premises may object to the District Court.

Ultimately, the District Court decides whether to grant or renew the licence. In some limited cases, the Court may impose conditions.

Nuisance

Licensed premises are subject to the general laws of nuisance. An adjoining premises owner or occupier may seek damages and/or an injunction based on the unreasonable interference arising from the conduct of the premises. As nuisance liability is strict, the owner or occupier of the premises will be liable for its conduct.

Generally nuisance, noise or waste from the premises may form the basis of an objection to renewal of la icence. A person affected may make an application to the District Court to remediate a noise or nuisance.. There is provision by which the Gardai may make an application to the District Court to abate noise from a licensee premises or maintain it to a defined level. See generally the sections in relation to local government environmental noise.

Various Regulation

In the context of an off-licence, which will often be in a premises selling groceries and other such goods there is a Code of Conduct in relation to separation from the non-licensed area. The Code of Conduct also deals with other types of licensed premises and was introduced in response to a proposed uncommenced provision.

A licensed premises must exhibit its name with the word “licensed” in accordance with the terms of its licence. This may be a registered business name. The court may prescribe the wording on grant or renewal. THe failure to display such sign as required is an offence.

Planning and development legislation allows local authorities to grant permission to use the footpath or putting in place structures, appliances, chairs, heating and other equipment et cetera. This street furniture licence is subject to conditions and stipulations. The facility is availlable to the holder of an on-licence only. The sale must take place on the premises even consumed outside.

See the sections on equality and trading in relation to obligations in respect of service to the public. Service may not be denied on the basis of one of the prohibited grounds of discrimination. A special means of application for redress exists.

Potential Reform

The intoxicating liquor legislation is quite complex and reflects the distinct inputs of the Garda Siochana, the Courts, the Fire Authorities and the Revenue Commissioners. Licence fees are in the nature of excise taxes.

In some cases, renewal fees and fees for extensions are significant and are in effect taxes on the underlying business. In other cases, the fees or the duties of fees are relatively small.

The licensing system is somewhat dated and in other jurisdictions, the function has been moved to an administrative bodies (England and Wales, 2003). The equivalent system of licensing of other bodies such as the licensing of auctioneers was moved from the District Court system of objection to an administrative body, the Property Services Regulatory Authority.