THE High Court has been asked to decide whether a pagoda style smoking area in the courtyard of a Donegal pub breaches the smoking ban.
The "Fisherman's Inn" in Main Street, St Johnston, erected a wooden structure with a perspex type roof which the health authorities say is effectively a room within a room because it is surrounded by four walls of the main premises.
A HSE environmental health officer who visited the pub on April 15, 2010 observed a number of men smoking there.
The officer was of the view that because the roof of the structure and the main pub roof overlapped, it could not be considered an open space and was therefore not exempt from the smoking ban. She noted it was not possible to walk out into the open air because the only means of access to the smoking area was through doors to the adjoining lounge.
The pub owners, St Johnston Taverns Ltd and directors Martin and Ann-Marie Toland, were prosecuted under smoking ban legislation in Letterkenny District Court on February 2, 2011.
The denied it breached the ban and their architect gave evidence to the District Court that the smoking area was open to the elements and had been designed in such a way to let smoke out.
District Judge Seamus Hughes dismissed the case after finding that more than 50 per cent of the walls of the structure were open and therefore came within the exceptions for smoking areas as contained in the Public Health(Tobacco) Act 2002.
He also found that the distance between the four surrounding walls of the main pub to the walls of the smoking structure was immaterial.
However, he decided to state a case to the High Court in which its opinion was sought as to whether his findings were correct in law.
After hearing submissions from lawyers for the HSE and the pub, High Court president Mr Justice Nicholas Kearns said he hoped to give a decision within two weeks.