Government approves drafting of Intoxicating Liquor Bill to codify the liquor licensing laws. Information note

Transcription

1 Government approves drafting of Intoxicating Liquor Bill to codify the liquor licensing laws Information note What is the purpose of the proposed Bill? The main purpose of the proposed Bill is to streamline and modernise our liquor licensing laws; this will involve repealing the Licensing Acts 1833 to 2004 and replacing them with updated provisions more suited to modern conditions (See Appendix 1). The Bill seeks to take account of reform recommendations both of the Commission on Liquor Licensing and the Strategic Task Force on Alcohol, while also having regard the better regulation principles set out in the Government White Paper Regulating Better. What major reforms are contained in the Bill? The Bill contains a broad range of reform proposals, including the proposed creation of a new café bar licence and major reforms of the licensing system. The latter are set out in Part 3 of the Bill which provides for a uniform and streamlined District Court procedure that will in future apply to all applications for on- and off-licences. The Bill does not propose any significant changes in opening hours. It will however repeal redundant and outdated provisions and address anomalies and inefficiencies in the licensing system (see also Appendix 2). What is the position about the proposed new "café bar" licences? The creation of a café bar licence is a key recommendation in the Final Report of the Commission on Liquor Licensing (April 2003). The Commission concluded that the historically restrictive nature of the licensing laws had resulted in the development of super pubs which, while generally well managed and catering for an important segment of the market, tended to create noise and nuisance for local residents and made compliance with, and enforcement of the licensing laws more difficult for licensees and the Gardai alike. It also considered that large numbers of people emerging from such premises at closing time increased the risk of public disorder. As regards future reform, the Commission considered that café bars which would be required as a condition of the licence to provide food as well as alcoholic and non-alcoholic beverages could provide an atmosphere and ambience that encouraged moderate social consumption of alcohol rather than the excessive consumption and binge drinking that had become more common in recent years. The Government has agreed that a public consultation process will be launched in relation to the proposed Bill and the decision on whether to create the café bar licence will await the outcome of the process. Any such licence would be subject to the following conditions: o it would apply to premises of less than 130 square metres; o it would not be available to premises engaged in take away sales of food; o hot meals and non-alcoholic beverages must be provided for consumption on the premises during opening hours; o sale of intoxicating liquor for consumption off the premises would not be permitted; and o exemption orders for extended opening hours would not be permitted. 1

2 In order to ensure responsiveness to local circumstances and enhance local government, it is envisaged that any local authority could, by adopting a resolution, determine that café bar licences would not be granted in the whole or a specified part of its administrative area. The current extinguishment requirement would not however apply to café bar licences. How will the new licensing system work? In future, all applicants for retail licences 1 will have to apply to the District Court for a court certificate. The Court will grant this certificate provided that the applicant can demonstrate compliance with the statutory requirements, and provided that the Court does not allow an objection by a competent objector on one or more of the listed grounds. Successful applicants will present the court certificate to the Revenue Commissioners together with the appropriate licence fee (where applicable) who will then issue the licence (subject to tax clearance). Licences will lapse on 30 September each year and will continue to be renewed automatically (subject to tax clearance) unless the renewal deadline is missed or a valid objection to renewal is lodged with the District Court. In such cases a District Court certificate will be required for renewal purposes. When licensed premises are being sold in future, the intending purchaser will have to apply for a new licence rather than applying for (as at present) a transfer of the existing licence until the next following 30 September. What are the main changes compared with the present licensing system? The principal changes include the following: o all applications for certificates will in future be dealt with by the District Court (the present system is confusing because applications for public house licences and special restaurant licences are dealt with by the Circuit Court; off-licences are dealt with by the District Court; licences such as wine on- and off-licences and theatre licences are issued directly by the Revenue Commissioners without any court certificate); o proof of planning permission and compliance with both planning conditions and fire safety conditions will have to be presented to the District Court (no such statutory requirements apply at present even though some courts already insist on presentation of planning permission); o the character and fitness of company directors (where the applicant for a licence is a company) may be taken into account by the District Court in deciding whether to grant a certificate for a licence; o in future, the applicant's knowledge of the licensing laws may also be taken into account by the Court in deciding whether or not to grant a certificate; o the existing adequacy ground on which an objection may be made to the grant of a certificate ( the adequacy of the existing number of licensed premises of the same character in the neighbourhood ) which is open to being used as an obstacle to prevent new entrants to the licensed trade will be replaced by a new public nuisance/public 1 Public house licence; restaurant licence; café bar licence; hotel licence; holiday camp licence; guest house licence; theatre licence; off-sale licence; and wine off-sale licence. 2

3 order ground ( an undue risk of either public nuisance or of a threat to public order or safety ). This will allow the Gardai, for example, to object to an application on public order or safety grounds. How does the proposed Bill address the issues of public order and under-age drinking? The proposed Bill makes provision for offences relating to drunkenness and disorderly conduct on licensed premises and under-age drinking. These reflect the existing provisions, in particular, those in the Intoxicating Liquor Act The new licensing system set out in the proposed Bill also takes account of public order concerns. The Garda Síochána must be given notice of all applications for the grant of certificates for retail licences, nightclub permits, special exemption orders and club registrations. Objections can be made to such applications on the grounds of an undue risk of public nuisance or a threat to public order or safety. In addition, the Gardaí can apply to the District Court to have a nightclub permit revoked on those grounds. Licensing law provisions are complemented and supported by public order legislation. The Garda Síochána have extensive powers to deal with alcohol-related public order offences under the Criminal Justice (Public Order) Act Sections 4 and 5 of the 1994 Act provide for the offences of intoxication in a public place and disorderly conduct in a public place. The Criminal Justice (Public Order) Act 2003 strengthens the law in order to deal more effectively with late night public disorder and disturbance, much of which has its origins in excessive consumption of alcohol. The Act provides that the District Court can make an exclusion order as an additional penalty where a person is convicted of a public order offence under the 1994 Act. An exclusion order prohibits a person from entering or being in the vicinity of specified premises of a type covered by the Act. The Act also allows the Garda Síochána to apply to the District Court for a closure order in relation to premises such as pubs, off-licences, nightclubs and food premises where there are disorder or noise problems. Are current public health concerns adequately reflected in the proposed Bill? The proposed Bill contains significant safeguards that are intended to combat alcohol-related harm. These include: o extending the jurisdiction of the District Court to all retail licences and nightclub permits; o streamlining the system for renewing licences, including clarification of the right of members of the public to object to such renewal on stated grounds; o strengthening provisions designed to combat sales to underage persons by, for example, requiring all off-licences to have written policies and control procedures; o creating a new offence of being in possession of a forged Garda age card; and o increasing the levels of penalties and sanctions, including a proposal that all temporary closure orders should involve closure for a minimum of 2 days. 3

4 Is provision being made in the proposed Bill for a nightclub licence? Present arrangements for the operation of nightclubs, i.e. special exemption orders obtained from the District Court on a monthly basis, are not satisfactory. It is not appropriate that nightclub businesses operate on the basis of special orders. In 2003, the Irish Nightclub Industry Association (INIA) pressed for the introduction of a new nightclub licence with longer opening hours. It was agreed that the proposal would be considered in the context of the codification Bill. The proposed Bill provides for the creation of a nightclub permit rather than a new nightclub licence. It means that the holder of, or applicant for, a public house licence, who has already obtained a public dance licence for the premises concerned, may apply to the District Court for such a permit. The procedure will be similar to that applicable to the grant of a certificate for a new licence, i.e. notice parties, grounds for objection by local residents, etc. In order to improve safety standards for persons attending nightclubs, the Bill provides that the District Court shall specify a maximum occupancy limit when granting a nightclub permit. Exceeding that limit will be an offence. The Court will also fix the opening hours when granting the permit within the time limits currently available in respect of special exemption orders (2.30 a.m. at the latest/1.00 a.m. on Sunday night/monday morning). The Court may specify other conditions with a view to maintaining safety and preventing public disorder. Does the proposed Bill include any changes in opening hours? Certain changes to the permitted opening hours which were recommended by the Commission on Liquor Licensing were introduced in the Intoxicating Liquor Act 2003 and no significant changes are proposed in this Bill. A number of relatively minor adjustments are included, including a proposal to permit off-licences engaged in mixed trading to sell alcohol from a.m. on Sunday mornings (instead of from p.m.). In addition, several reforms recommended by the Commission on Liquor Licensing in relation to general exemption orders and exemptions for special events are included in the Bill. In all cases the reforms are intended to clarify the law with a view to improving compliance and facilitating enforcement by the Gardai. Are there any changes regarding young people and age cards? Certain provisions will be strengthened in order to combat under-age consumption of intoxicating liquor: o A new offence of being in possession of a forged or altered age card is being proposed; a fine of up to 3,000 or 12 months imprisonment will apply in the event of conviction for such an offence. o In future, a member of the Gardai may request the name and address of any person suspected of committing, or of having committed, a forgery offence; failure to give such details will be an offence. o Finally, a Garda may in future arrest without warrant a person who refuses to supply his or her name and address when requested to do so by a Garda. 4

5 What about the 9.00 p.m. watershed for under-18s? Section 1 (7) of the Intoxicating Liquor Act 2004 takes account of concerns expressed by the hotels industry and parts of the licensed trade by providing for a p.m. watershed during the period 1 May to 30 September (rather than 9.00 p.m.). The 2004 Act also made provision for the holding of alcohol-free events for young people in bars of licensed premises where to intoxicating liquor is not being sold or supplied and where physical access to it is securely prevented. Are penalties/sanctions being increased? The Bill will provide for a consistent and coherent system of sanctions and replace the current patchwork of penalties that has evolved over time. Increased fines are being proposed in certain cases, including a minimum closure order of 2 days. Clarifying and streamlining the licensing code will help to improve compliance by licensees and enforcement by the Gardai. What happens next? The draft Bill is now being published as part of a consultative process. Organisations and individuals are invited to submit views or suggestions on all, or specific parts, of the Bill by 31 May In particular, the Minister and the Government would value views on the creation of a café bar licence for small premises which was a key recommendation in the Final Report of the Commission on Liquor Licensing. Submissions can be ed to licensing_consultation@justice.ie 5

6 Appendix 1 Updating the licensing laws to suit modern conditions A codification of the licensing laws has been recommended on several occasions by Government-appointed commissions: The Royal Commission on Liquor Licensing Laws, reporting in 1899, stated "we are strongly of opinion that the Irish Licensing Laws should be codified and simplified in the same way that we have already recommended for England and Scotland" The Intoxicating Liquor Commission established by the Executive Council in early 1925 recommended that "the codification and consolidation of existing law should be undertaken without delay" The Commission of Enquiry into the operation of the Laws relating to the Sale and Supply of Intoxicating Liquor recommended in July 1957 "that the task of consolidation be undertaken as soon as is conveniently possible so that the whole law be readily available in one comprehensive measure" The Commission on Liquor Licensing, which was chaired by Mr Gordon Holmes and submitted its Final Report in April 2003, recommended that "the codification of the licensing laws should be commenced immediately and the required resources made available" The lack of progress in codifying the law in this area appears to have been related to the sheer magnitude of the task; licensing provisions are spread across a wide range of statutes and their operation involves a wide range of statutory bodies including the courts (District Court and Circuit Court); county registrars; Revenue Commissioners; fire authorities, and the Gardai. Reform of licensing law is complex because of the need to take account of competing public policy objectives and to seek to accommodate the demands of a broad range of interested parties. Public policy objectives arising in this context include the following: combating alcohol-related harm and promoting public health; protecting vulnerable groups, especially young people; maintaining public order; ensuring coherence with spatial planning and development objectives; taking account of the needs of local residents and others likely to be affected by decisions concerning the location of licensed premises; accommodating the requirements of the tourism and leisure sectors; improving market access to the licensed trade to ensure fair competition; and 6

7 protecting consumers against anti-competitive practices and behaviour. The proposed Bill seeks to establish an appropriate balance between these (at times, competing) public policy objectives. The proposed Bill provides for the repeal of licensing provisions that are currently spread across about 100 statutes (most of which are pre-1922). It will contain 200+ sections that will replace about 650 sections currently spread throughout these statutes. Seen from this perspective, the proposed Bill represents a significant contribution to the process of regulatory reform, including statute law revision, to which the Government committed itself. The Bill is intended to achieve the following objectives: To modernise and streamline licensing law, including the licensing system, in order to make it more accessible and user-friendly for the licensed trade, the courts and members of the public alike; To reduce alcohol-related harm, especially among young people, by having regard in licensing law for public health and public order requirements, and by strengthening provisions designed to ensure the safety of customers in licensed premises; to improve compliance with licensing law by licensees, and enforcement of the law by the Gardai, by clarifying statutory requirements while at the same time making it easier for the courts to order the temporary closure of licensed premises, or suspend licences for longer periods, for breaches of licensing law; to encourage the consumption of food with alcohol by removing unnecessary and inappropriate restrictions on the availability of licences for premises involved in the provision of meals; 7

8 Appendix 2 Addressing anomalies and inefficiencies in the licensing system Manufacturer's licences There are five types of manufacturer's licence at present: 1. distiller of spirits; 2. rectifier or compounder of spirits; 3. brewer of beer for sale; 4. maker for sale of sweets; and 5. maker of cider or perry for sale. The Bill contains a proposal to replace all these licences with a single producer's licence. This will be issued by the Revenue Commissioners (without a court certificate) subject to compliance with conditions. This licence will authorise the holder to produce alcohol products at the premises and also to supply by wholesale the alcohol products produced there. Wholesaler's licences Under current legislation, there are four different types of wholesaler's licences: 1. wholesale dealer's licence in spirits; 2. wholesale dealer's licence in beer; 3. wholesale dealer's licence in wines and sweets; and 4. wholesale dealer's licence in spirits of wine. At present, a District Court certificate is required for a wholesale licence for beer but not in the case of the other types of licence. The Bill contains a proposal to replace all these licences with a single wholesaler licence issued by the Revenue Commissioners (without a court certificate). This licence will authorise the sale of intoxicating liquor to holders of retail licences, including registered clubs, but will not permit retail sales. Wine licences At present, the licensing code permits the issue of wine licences (both on- and off-licences) by the Revenue Commissioners without a court certificate. There has been a significant increase in the number of wine licences in recent years: from 3,625 in 1999 to 4,793 in 2003, i.e. an increase of over 30%. The Bill provides that in future the issue of such licences should be subject to production of a District Court certificate. Theatre licences The situation that has developed in relation to the availability of theatre licence in recent years is confusing and needs to be reformed. At present, theatre licences may be issued by the Revenue Commissioners without any court certificate following presentation by the applicant of a public music and singing licence (obtained from the District Court). Trading hours depend on the duration of performances in the theatre but there is no definition of performance or theatre in the legislation with the result that certain premises remain open until 3.00 a.m. or later. The Bill provides that the issue of a theatre licence should in future be subject to production of a District Court certificate. 8

9 Register of licensees The licensing laws currently provide for two separate registers of licensees; one to be kept by the County Registrar, and the second by the District Court Clerk. In practice, the former register had fallen into disuse while there are time lags in maintaining the District Court register. The Bill provides for a new register to be maintained by the Revenue Commissioners with the assistance of the Courts Service. An accessible and up-to-date register of licensees will facilitate improved enforcement of the licensing laws; it will also provide the necessary details for persons who wish to object to renewal of a licence. Special restaurant licences Part II of the Intoxicating Liquor Act 1988 created the special restaurant licence to be granted by the Circuit Court. Certain operational restrictions apply to holders of this licence which seem unreasonable nowadays and are in any event difficult to enforce. These include: o intoxicating liquor cannot be served while a menu is being considered but only when a meal is ordered; o it must be consumed before, during or within 30 minutes of completing a meal; and o it must be paid for at the same time as the meal (this means that a guest or member of a group/family cannot purchase drinks unless these are paid for at the same time as the meal itself). The Bill proposes to remove these outdated restrictions. Nominees The holding of licences by nominees is currently permitted under licensing law and the practice would appear to be commonplace. However, difficulties have arisen where nominees are no longer involved with the premises or business concerned, especially where offences are being prosecuted. The Bill proposes to discontinue the nominee option; this means that in future licences will be issued in the name(s) of the individual or corporate entity concerned. Rateable valuation At present, a rateable valuation condition applies in respect of premises for which certain licences are sought e.g. Beer Retailer's Off-licence; Wholesale Beer Dealer's licence; Holiday Camp licence. The original policy rationale was to ensure compliance with certain minimum structural standards but this can now be achieved through planning controls and fire safety standards. The Bill proposes to repeal existing rateable valuation provisions and not to replace them. Formal link with planning law The formal position at present is that the planning laws and licensing laws operate as separate codes (it has however become standard practice in some licensing areas that proof of planning permission is presented to the court with the application for a certificate). The Bill proposes to amend the Planning and Development Act 2000 to require planning authorities to include objectives for the location of licensed premises in their functional areas in their development plans. This is in line with the recommendation of the Commission on Liquor Licensing in its Final Report (p. 74) where it stated that local authorities rather than the courts are the appropriate bodies to assess the suitability and location of premises for the sale of alcohol. 9

10 The Bill also makes an explicit link with the planning code in the streamlined court procedure for applications for certificates for new retail licences. In future, before granting a certificate, the District Court will require evidence that planning permission has, if required under the planning code, been obtained and that any conditions have been complied with. Moreover, certification of compliance with fire safety standards by a suitably qualified person will also be mandatory. Both changes are fully in line with recommendation of the Commission on Liquor Licensing. Area exemption orders Area exemption orders are intended to deal with exceptional 'area-based' events that attract very large crowds and where catering for such an influx of people during normal trading hours would be difficult and insufficient to meet the needs of such numbers. The current provisions create enforcement difficulties for the Gardaí. It is difficult for them to know which premises are availing of an area exemption order because the application to the District Court needs only the support of the 'majority' of licensees in an area. Moreover, licensed premises situated in the 'locality' where the special event will occur can benefit from an area exemption order. The term 'locality' is inadequately defined. The Bill proposes that the Court may make an area exemption order where it is satisfied that that application has the written support of the majority of licensees in respect of premises in the licensing area. Only those who are party to the application may avail of the exemption order. Given the number of licensed premises in Dublin, a lack of capacity to cater for a large influx of people during the usual permitted hours is unlikely, so it is proposed that the existing prohibition on area exemption orders being granted in the Dublin Metropolitan Area should remain in place. The geographical scope of area exemption orders will be more precisely defined in the Bill in order to improve enforcement of the licensing laws. The licensing area will be defined as the relevant geographical unit and it will be a requirement that the special event to which the application relates must take place in, or in the immediate vicinity of, that licensing area. Sale by standard measure Under existing legislation, quantities of intoxicating liquor of less than half a pint need not be sold in standard measures, e.g. sherry, wine, port. The Bill proposes to update the law by providing that all intoxicating liquor which is not pre-packed must be sold in standard measures. This provision will be enforced by the Metrology Service. 10