Friday 22 November 2019

No room at the Inn for smokers, judge rules

Tim Healy

A PAGODA-style smoking area in a courtyard of a pub is not exempt from the smoking ban, a judge ruled.

The Fisherman's Inn in Main Street, St Johnston, Co Donegal. erected a wooden structure with a perspex-type roof for smokers.

But the health authorities said it was 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, took 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.

The officer 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.

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.

Walls

They denied it breached the ban, and their architect told the court that the smoking area was open to the elements.

District Judge Seamus Hughes dismissed the case after finding that more than 50pc 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.

But the judge decided to state a case to the High Court, seeking opinion on whether his findings were correct in law.

Yesterday, president of the High Court, Mr Justice Nicholas Kearns, found the district judge was incorrect in holding that the smoking area was "outdoor" in the meaning of the act.

He was mistaken in not holding that the perimiter of the smoking area was surrounded on all sides by walls or similar structures.

He also said the district judge's finding appeared to be based on evidence given by the pub proprietors' own architect.

He said the pagoda structure was "entirely enclosed by stone walls" and he agreed with a description by health authorities that it was effectively "a room within a room".

Irish Independent

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