COVID-19: Regulation of Licensed Premises Supported by Enhanced Garda Powers
New legislation provides An Garda Síochána with a sliding scale of enforcement powers to ensure that premises selling alcohol for consumption on the premises comply with legal regulations to combat the spread of Covid-19. Closure orders, criminal offences and objection to licence renewals are all provided for in the Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 (the “Act”).
The Act empowers An Garda Síochána to enter premises selling alcohol for consumption on the premises without a warrant, and where the premises is found not to be complying with Covid-19 regulations, to take a number of actions.
The first of those is to issue a direction to the person in charge of the premises to take whatever steps the Garda considers necessary for the premises to be compliant. Failure to comply with a Garda direction may lead to a written compliance notice, any one of three closure orders and /or conviction of a criminal offence. Significantly, it may also ultimately lead to an objection by An Garda Síochána to the annual renewal of the licence on grounds of a lack of “good character”.
The measures in the Act take effect from 12 September 2020 and will remain in place until 9 June 2021.1
The three types of closure order provided for in the Act are:
- 1. An immediate closure order: for commission of an offence under a Covid-19 regulation. This may be issued by a member of An Garda Síochána, on the authority of Garda superintendent or higher, with immediate effect for the remainder of that trading day. This would, in effect, operate as an “on the spot” closure.
- 2. An emergency closure order: for multiple failures to comply with a direction of An Garda Síochána and where that failure is continuing or likely to recur. This order is made on application to the District Court, by a Garda superintendent or higher and can lead to closure for a period not exceeding 72 hours. The application can be made ex parte so that the licence holder for the premises may not be aware of it.
- 3. A temporary closure order: for failure to comply with a compliance notice, and where that failure is continuing or likely to recur. The harshest closure order, this is also made on application to the District Court, by a Garda superintendent or higher, but can only be made where the licence holder for the premises is made aware of the application. This order leads to closure for a period of up to 7 days (for the first order) and up to 30 days (for a second order).
In terms of criminal offences, any person who prevents the Gardaí from entering the licensed premises, or a licensee, occupier or manager or any other person in charge who fails to comply with the terms of a closure order, may be guilty of an offence and liable to fines of up to €5,000.
Significantly, as mentioned, the Act also provides for new grounds for objection to the renewal of a liquor licence, or certificate of registration of a club relating to the “good character” of the licensee, for certain breaches of the Act: the issue of any closure order, conviction of any relevant offence or where in the opinion of a Garda superintendent or higher that:
- (a) there has been a failure to comply with a compliance notice, and
- (b) that such failure to comply is continuing or is likely to recur.
If an objection is made, the renewal of the licence, or certificate, will be dealt with initially at the annual District Licensing Court, which usually takes place at the end of September, or another sitting of the District Court where the objection has been listed for hearing. Given how busy annual licensing lists tend to be, it is no surprise the Act allows for the adjournment of proceedings where a notice of objection has been made and for the making of directions as the Court considers appropriate. The licence will, however, remain in force until the determination of the proceedings before the District Court.
As we enter on the road of “Resilience and Recovery” and the Government’s “Plan for Living with COVID-19”, the sanctions provided for in the Act encourage active compliance by all licensed premises with relevant legal obligations. The main legal obligations imposed on the re-opening and operation of pubs, restaurants, hotels and clubs since emerging from lockdown has been the requirement for service of a substantial meal with any alcohol served and the regulation around evidencing compliance with that. The re-opening of “wet pubs” on 21 September 2020 will see these requirements fall away for many. But owners of licensed premises within Dublin will see these remain beyond then, and as the crisis continues, the possibility of further regulation or applying current regulations on a local basis can’t be ruled out.
Whilst the Act includes various notification provisions, rights of appeal and, as mentioned above, a sunset clause now due to expire on 9 June 2021, all owners and operators of pubs, restaurants, hotels and clubs should take note and ensure compliance with the Act and applicable Covid-19 regulations to ensure they do not open themselves up to the risk of temporary closure or jeopardise their ability to renew licences.
Also contributed to by Alice Ward
- The measures were originally to remain in place until 9 November 2020 unless extended, and were so extended by the passing of a resolution approving the continuation of the Act by both Houses of the Oireachtas - by the Dáil on 4 November and the Seanad on 6 November 2020 - pursuant to section 17(3) of the Act.
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.