COVID-19: New Licensing Laws for Unlicensed Outside Seating Areas
Recent media reports have highlighted concerns around the legality of serving alcohol in unlicensed outdoor seating areas.
The Civil Law (Miscellaneous Provisions) Act 2021 (“the Act”) has been enacted and clarifies the legal uncertainty that surrounds the sale and consumption of alcohol in unlicensed outdoor seating areas on private land abutting licenced premises or on public land where outdoor seating areas have been permitted by the local authorities during the Covid-19 pandemic.
The Act makes provision, on a temporary basis, for the sale or supply of alcohol in certain circumstances in an unlicensed “outside seating area”. Ordinarily, there would be tighter restrictions here. However, having regard to the risk to public health posed by Covid-19, it appears that some leeway will be permitted. The Act extends to certain premises governed by the Licensing Acts and the Registration of Clubs Acts.
What is an “outdoor seating area”?
Section 1 of the Act defines the term “outdoor seating area”. In relation to a licensed premises, it can mean one of two things.
First, it can mean an outdoor seating area lawfully used by a licensee pursuant to an authorisation given by a statutory authority. This authorisation may be by way of licence, permit, consent, approval or permission etc.
Secondly, it can mean an outdoor seating area on private land abutting a licensed premises. Certain conditions must be satisfied here. In summary these are that:
- the land is owned or occupied by the licensee;
- there is no current licence for the outside area;
- the number seated there does not exceed the inside capacity;
- the outside area has sufficient seating for all;
- the outside area does not have any counter or barrier across which alcohol can be served to the public; and
- the sale or supply of alcohol in the outside area is an ancillary part of the normal business of the premises.
Outside seating area deemed part of the licensed premises
Section 2 of the Act provides that outdoor seating areas are deemed to be part of the licensed premises while that section remains in operation, which was initially until 30 November 2021 but has been extended to 31 May 2022 by resolutions of the Dáil and the Seanad.
The conditions under which an existing licence operates will equally apply to the outside seating area. Authorised operating hours must be observed. The sale or supply of alcohol in an outdoor seating area remains unlawful where this is for consumption off the premises or outdoor seating area. Failure to operate an outdoor seating area in accordance with the Licensing Acts will be grounds for objection to the renewal of the licence. There are equivalent provisions in relation to clubs.
The Act provides that the Planning Acts must continue to be observed and that the new legislation does not authorise any activity in an outdoor seating area which is otherwise unlawful.
The Act gives additional powers to An Garda Síochána to police the new legislation and also sets out criminal sanctions for those who do not comply. In addition, the provisions of the Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 which allow for closure orders etc. are applied to outside seating areas and relevant enforcement powers are aligned. The Act also clarifies that an outdoor seating area on private land is a public place for the purposes of the Criminal Justice (Public Order) Act 1994.
Finally, the Act provides that the Minister may introduce regulations to restrict the time during which a licensee of a licensed premises is permitted to sell or supply alcohol in an outdoor seating area.
This legislation provides welcome clarification for the owners of licensed premises and clubs. However, it is clear that relevant legislation and licensing conditions must be observed and failure to do so may lead to difficulties down along the line.
This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.