Licence Restriction (pre-2000)
The foundation of modern intoxicating liquor licensing law is the Licences (Ireland) Act 1902. This Act was passed in response to an enormous proliferation in the number of licence. It meant that the circumstances in which new licences could be granted were very strictly limited.
The 1902 Act introduced a general prohibition on new licences for the sale of intoxicating liquor. It applies both to on-licences and off-licences. The Act provides a number of exceptions, which have been changed significantly, but which remain the cornerstone of the law on new licences.
One or two existing licences had to be extinguished in order to licence a new premises. In some cases there were prohibitions or potential prohibition on new licences in particular areas, where there existed other licensed premises in the vicinity.
Since 2000, there is generally a free one for one swap for many licences. The licence may be from anywhere in the country. A broad catogory of licences are interchangeable.
Population Change (pre-2000)
Over the twentieth century, the rules for opening of new public houses were complex and in many cases arbitrary. In some instances, it was impossible to open new public houses because population increases within certain areas had to be shown.
In other cases where there were substantial population increases, the existence of an older licence within a mile might prohibit the grant of a new licence. There were relatively arbitrary distinctions between rural and urban areas. What were technically rural areas under the legislation, were in some cases, rapidly expanding suburbs.
Previous Licence (pre-2000)
There were a number of cases where it was not necessary to buy and extinguish another licence. A premises may be granted a licence where it does not have a licence, but a licence previously attached during the previous five years. This would typically apply where a property is reconstructed.
A licence may be granted for a premises outside a urban area in substitution for a licence to premises in the immediate vicinity where both premises are in the same District Court Area and the new premises is more suitable.
A restricted licence (as to time or date opening) could be substituted with a full licence, provided another restricted licence in the same court area or two restricted licences or a full licence are extinguished.
The Intoxicating Liquor Act 2000 radically simplified and altered the position in relation to the issue of new licences. It introduced the principle that an intoxicating liquor licence may be obtained on extinguishment of an intoxicating liquor licence anywhere else in the State.
This replaced the much more complex provisions mentioned elsewhere. The complexities limits and restrictions which existed prior to the 2000 Act no longer apply.
The declaratory procedure by which an application for a prior declaration can be made applies. If this is granted the further application made when the premises is actually in situ may be refused on very limited grounds only.
Grant of Licence
Where a person obtains the consent of the holder of an existing licence to its extinguishment or himself consents to the extinguishment of that licence, he may apply for a new licence. The licence must be granted unless the court prohibits it on the ground of
- character, misconduct and unfitness of the applicant.
- unfitness and inconvenience of the new premises.
- their unsuitability for the needs of persons resident in their neighbourhood or
- the adequacy of the existing number of licensed premises of the same character in the neighbourhood.
The (new) premises concerned must not have been previously held a full licence in order for this power to apply.
It is possible to apply for the declarations in relation to fitness and convenience of the proposed licensed premises in accordance with the above provision. Accordingly, a person may “test the water” before actually completing an acquisition.
There was a provision in the 2000 Act for upgrading of a restricted licence for a period of a year after the legislation came into force.
The holder of the existing licence much must consent to it being extinguished. The existing licence must be a full licence of the same character as the new licence.
On grant of the new licence, the existing licence is extinguished. The premises to which the existing licence was attached are deemed never to have been licensed.
Offences recorded on the licence while the applicant was holder, carry over and are endorsed on the new licence.
An application for a certificate or declaration for a new on licence is made to the Circuit Court in the area concerned. The licence the Revenue Commissioners grant it.
Every person intending to apply for a new licence or the transfer of a licence must give at least 28 days’ notice by way of advertisement in a newspaper circulating in the area.
It must comply with the requirements of the Licensing (Ireland) Act, 1833. Notice in writing must be given to the court together with particulars of the location of the premises and his residence.
Notice is given to superintendent Garda Siochana the District Court office the County Registrar and the fire authority. 21 days’ notice is required save in relation to the fire authority where one months’ notice is generally required.
Generally an advertisement is to be published giving notice of the application in an newspaper circulating in the area. Plans and maps showing the extent of the licensed area are to be prepared.
The title of the applicant to the premises concerned whether as a freehold or occupational lease holder is required as proof. In most cases where a new licence is required the consent of the existing licence holder to the extinguishment of that licence is required. A substitute licence is acquired. The relevant conditions regarding that licence former licence must be satisfied.
Generally , on the grant of a new licence any persons in the District Court Area concerned may object to the renewal. An Gard Siochana and the and fire authority may object. They will normally appear on the application.
Certain grounds may require adverse impact on the objector in which case that must be satisfied. However other more general grounds may be made by anyone within the relevant functional area. The older legislation refers to the civil parish or former health area under older local government legislation.
The ground for objection include
- the fitness and convenience of the premises
- character conduct and fitness of the applicant
- number of previously licensed premises in the neighbourhood.
A key focus of the legislation is the suitability of the premises. This covers a range of issues, including the orderly conduct of the trade, ease of policing, premises fitness for purpose and safety and fire safety.
The Superintendent of An Garda Siochana is the key notice party to applications. Garda objections to the premises or proposed licensee would be significant obstacles to approval.
The requirement for licensing is over and above that for planning permission building regulation compliance, compliance with the fire safety act, health safety and welfare of work legislation. Compliance with that legislation is also necessary. The court may look at these issues in particular in the context of a new licence
The Intoxicating Liquor Licensing legislation is much older than planning legislation. The court is usually satisfied in relation to the issue of suitability, provided that there is proof of planning legislation requirements compliance.
Fire safety compliance is critical. The Fire officer is a notice party in most applications.
Holding the Licence
The licence may be granted to an individual partnership, company or a nominee. The person running and managing the premises must have the requisite knowledge of licensing laws and the capacity to run the premises properly. Under legislation to combat drug trafficking certain premises and certain persons may be disqualified for life periods from holding licences.
Where a licence has been forfeited no new licence is to be granted in respect of the premises concerned.