Wednesday 24 January 2018

Roof justice: pub broke smoking ban with awning

Tim Healy

A ROOF is a roof even when it is made of retractable canvas, a High Court judge has ruled.

And an area outside a pub with such a retractable roof was not exempt from the smoking ban, Mr Justice Peter Charleton said.

He ruled that a district court judge was wrong to dismiss a charge of breaching the smoking ban against a pub which provided a retractable canvas awning over a laneway.

Grace's, of North Main Street, Naas, Kildare, (pictured) also provided a flat screen TV, counters and stools under an awning in an enclosed laneway at the side of its premises, the court heard.

District Judge John Coughlan, who inspected the awning, found it was not a roof after an HSE inspection in April 2008.

But Mr Justice Charleton said "a roof is a roof" -- and this one created a fully enclosed area for smokers in breach of the ban.

The case could set a precedent for other pubs who have sought to get around the smoking ban using similar means.

The Health Service Executive (HSE), who brought the case, were unavailable for comment on the matter last night.

Retractable

The court was told that while no one smoked inside the bar, customers smoked in a completely enclosed laneway between two parts of the premises which had been covered by a retractable canvas awning.

The HSE argued the pub was acting in breach of the smoking ban as the alleyway was entirely covered by a roof.

In his judgment yesterday, Mr Justice Charleton held that it was not possible to accept an argument that any membrane covering the upper surface of a room or premises which impedes the dispersal of smoke is anything other than a roof.

An area furnished with barstools, varnished wooden counters and a large flatscreen TV was a place where, he said, customers could legally "while away their time watching TV, drinking pints and smoking to their heart's content".

Given the high level of rainfall in Ireland, especially during the summer, the judge said people "want respite from the elements" and "don't want their drink to be watered down".

Comfort and shelter were clearly the purpose of this awning.

It was therefore a roof, and it made no difference what it was made of, he added.

Tim Grace, the owner of the bar, was unavailable for comment last night. Donal O'Keefe, chief executive of the Licensed Vintners' Association, said he could not comment because he was unfamiliar with the details of the case.

Irish Independent

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