Endorsements & Forfeiture

Table of Contents

Endorsement of Offences

Certain convictions in respect of the breach of the Intoxicating Liquor Acts are endorsed on the licence. In the case of prohibited hours, the recording of convictions is discretionary.

A first conviction is not necessarily recorded. If recorded, a first conviction if recorded is recorded for two years. A second conviction is recorded for four years. A third and every subsequent conviction lasts six year

Whether a person is convicted twice in same court for offences on different dates, the conviction for the second dates are not regarded as the same offence.

Convictions against a former licensee after a bona fide transfer are not endorsable on the transferred licence.

Convictions are removed if the licence holder is acquitted on appeal. The Circuit Judge may affirm the conviction and has discretion to declare that thee conviction shall not be recorded.

Offences Covered

The following offences are subject to endorsement on the licence. Some are mandatory

adulteration of liquor
use for certain disorderly purposes
unlawful hours (discretionary)
acts in relation to members an Garda Siochana (e.g. Bribing) obstructing entry of a member
unlicensed premises
breach of special restaurant certificate
employment of persons under 18 where not permitted (discretionary in some cases)
gaming offences
underage sale or being on premises
Certain drunk & disroderly offences

Endorsement

Endorsement is deemed to take place even if not physically endorsed on the licence. Mandatory endorsements happen automatically without a specific order on the part of the judge.

Endorsements in the case of the first conviction generally last two years. In the case of a second conviction, they last four years. I the case the third conviction and each subsequent one they last six years.

There is provision for relief from endorsements in certain cases. In the case of a first conviction for many offences there is prospective relief from forfeiture. Where two or more offences are committed on the one day (as will commonly occur with certain types of scenarios) the court may as it thinks fit order that one or more such offences shall be recorded only.

In the case of certain offences for prohibited hours there is discretion for recording.

Forfeiture

The general principle is that on recording of a third endorsement on the licence the licences forfeited. A new licence shall not be granted for the same premises.

Where the holder of a licence is convicted of an offence under the legislation and at the time of such recording two convictions are recorded, the licence shall be forfeited. Where a licence is forfeited, no new licence shall be granted in respect of the premises or any part of it.

Forfeiture, despite its potentially serious consequences in relation to the livelihood of the licence holder t, is not such as to require a trial by jury. The underlying offences remain minor offences.

When a person is convicted of two or more offences on the same day, the court may order that one conviction only shall be recorded.

Transfer & Endorsement

Generally, when a licence is transferred to a bona fide purchaser the court shall direct on the transfer that offences recorded cease to be recorded. This is applicable to a bona fide sale. This must be a genuine sale as opposed to a design to circumvent the legislation. A transfer to a company controlled by the seller is unlikely to be genuine.

Relief may be granted where a new licence is granted for a premises in the context of redevelopment or otherwise. The extent to which this is discretionary, and the terms, depend on the particular ground on which the new licence is founded. In certain cases, existing endorsements are to carry over under the terms of the relevant statute.

Where the applicant having on a bona fide purchase satisfies the court that the transfer is for the purpose of giving effect to a bona fide sale, the court shall if it grants the certificate for transfer direct, offences then recorded to be removed.

Where a licence is transferred, freed and discharged and the transferor applies for licence within five years, whether in the same or another licensing area, the court shall direct that the offences that were recorded on the first licence be recorded on the second licence.

A person who makes an application for transfer is under an obligation to disclose the above circumstances to the court. The omission to record a conviction on the licence does not affect its validity.

Licence Register

A register of licences is kept. It includes evidence and particulars of endorsement. The particulars of endorsement in the register are presumptively correct.

Whenever the holder of a licence is charged, the summons or other document, bringing the holder before the court shall state that the holder is required to produce his licence to the court. Where a recordable offence occurs, the registrar or clerk is to endorse the licence with details of the conviction.

The Probation Act does not apply to offences under this provision.

Temporary Closure

There is the possibility of a temporary closure order which will also carry an endorsement in certain cases.

underage drinking (endorsement discretionary)
permitting drunken persons on premises
failing to keep order
breach of identification requirement

In the case of so-called underage drinking, the court must issue a temporary closure order. This may be between two and seven days for a first offence and between seven and thirty days for second and subsequent offences. See generally the sections in relation to “underage drinking”.

There are similar provisions in respect of breaches by the licensee in respect of the provisions against drunkenness and disorderly conduct. See the separate sections in that regard.

Continuation

Where a licensed person or a spirit grocer is convicted for the first time of certain offences:

selling spirits without a licence,
serious indictable offences,
making an internal communication with an unlicensed premises and
becomes disqualified as his licence is forfeited.,

the District Court may give authority to carry on the business at the same premises until the District Court sittings are next heard, next one month thereafter.

Forfeitures

If the holder of a retail licence to sell beer or spirits is convicted of a certain serious offences, the District Court may annul his licence after due notice. They includes in particular

sale of intoxicating liquor by a licence holder without the appropriate licence (second offence)
giving misleading information to Revenue in relation to renewal
possession for sale of illicit (not lawfully produced/excise paid) liquor
having certain unlawful communications with other premise
permitting premises to be used as a brothel
harbouring thieves
certain convictions

The 1833 Act also provides that “ no .. bailiff, gaoler, turnkey, guard, sheriff, sub-sheriff, peace officer or a non-householder may hold a publican’s licence”.

There are severe sanctions under the Licensing (Combating of Drug Abuse Act 1997. They provide for closure orders and forfeiture in the case of certain offences. See the separate sections.

Disqualification

A person who has been convicted of a drug trafficking offence is disqualified from ever holding in intoxicating liquor, public dancing licence or any public music or singing licence. A drug trafficking offence refers to certain offences in relation to manufacture production importation and supply of controlled drugs and certain equivalent offences.

Where the holder of intoxicating liquor licence is convicted of a drug trafficking offence the Superintendent Garda Siochana may request this court to forfeit the licence. Such person is disqualified from holding a licence again.

A person who is disqualified from holding a licence under any of the provisions may not be a shadow licence holder. A shadow licence holder is a person who directs the holder of the licence in relation to the operation by reason of an understanding, arrangement ,direction, profit sharing or control, or is able to share in the profits and gains of the licensed trade.

A disqualified person may not act as a shadow licence holder. There is provision for application to the District Court by member of an Garda Siochana in relation to a disqualified person who is acting as a shadow licence holder. The holder of the licence is subject to similar disqualifications. Similar provisions apply in respect of public dancing, public music and singing licences

On application by a member of an Garda Siochana above a certain rank to the District Court, where the court is satisfied that the person has allowed premises to be used for the sale of controlled drugs then the District Court may suspend the licence. An application shall not be made on the basis that the licence holder did not exercise control which is reasonable in the circumstances unless

a member of an Garda Siochana has previously advised the licence holder that he has reasonable suspicion that there was such sale or supply,
warned the licence holder to take whatever action was necessary and
given the licence holder a reasonable period not less than four weeks to take whatever action was specified.

Where the intoxicating liquor licence is suspended under this power it is suspended for three years. A person so convicted shall not hold any other licence in this period.