Ireland: Drink Aware
Licensing Rules, Penalties And Regulations In Hotels And Restaurants

Originally published in Licensing World Directory, 2007

With hotels and restaurants relying on their staff to care for the wellbeing of their licence, proper staff training is a vital component of the licensed trade and can protect against costly legal proceedings and even closure.

The Licensing Act 2000 introduced a radical new penalty in the form of the temporary closure order for underage drinking offences. This was further extended in 2003 to cover an increased range of offences and it currently applies to the following:

• Sales to underage persons (mandatory)

• Allowing unaccompanied persons under the age of 18 years to be on a dedicated off licence premises (mandatory)

• Offences relating to drunken persons (mandatory)

• Permitting disorderly conduct on the premises (mandatory)

• Permitting the consumption of alcohol sold for consumption off the premises within 100 metres of your premises mandatory)

• Findings of discrimination pursuant to the Equal Status Act 2000 (discretionary)

If a judge convicts for most of the above offences a temporary closure order must follow. What this means in practical terms is that during the period of the closure order the premises will be closed and no business, even the non-licensed kind can take place. For a first offence the period of closure can be up to one week and for a second offence closure for seven to 30 days. There is also a large element of negative publicity, as a sign stating why the premises is closed has to be displayed on the front door. As a licensing solicitor, I am involved on a regular basis defending prosecutions under the Intoxicating Liquor Acts. From my experience a number of observations are worth sharing.

Firstly, you are only as good as your weakest link. In almost all of the prosecutions I have handled, although staff training in some form may have taken place, for the most part the employee giving rise to the prosecution slipped through the training net for whatever reason or had minimal training. As the licence holder, you cannot stand behind the bar of your premises for 13 hours a day, seven days a week supervising every sale so you are relying on your staff to care for the safety and wellbeing of your licence at times when you are not there personally.

Thorough training of all staff, not forgetting your part time staff and door staff, will help ensure that this reliance is justified. You should ensure that your staff training is refreshed at regular intervals, say every six months. In practice the retraining should not take a great deal of time. After each training session the staff should sign an acknowledgement form and those should be retained for production to a Court in the event of a prosecution.

Reliance on training on its own, however, is not the whole solution. It should be coupled with active and careful management of the premises on each shift and the licence holder should be in a position to prove adequate supervision of the premises in the event of a prosecution. Managers should remind staff at the commencement of every shift to look for proof of age and to make sure that alcohol is not sold to people displaying signs of drunkenness. Employees should be warned in training that if they sell alcohol to underage drinkers or drunken persons they themselves can be prosecuted for aiding and abetting. It should be stressed to employees that Gardaí are now regularly prosecuting employees who have been involved in underage sales on a regular basis as well as the licence holders themselves.

While the existence of proper training procedures may not prevent a conviction, it will certainly go a long way to mitigate the mandatory penalties in respect of the offences under the Act. It may for example influence the Court to impose a shorter closure order or (where practical) only close part of the premises, where it is demonstrated that the licensee did every within his power to prevent the offence. It could also affect the size of the fine imposed and whether the conviction will be enclosed in the licence.

Staff Obligation

All staff are obliged to act responsibly when serving customers and must take every precaution to ensure that customers under the age of 18 or drunken persons are not served alcohol. This company is committed to compliance with the Equal Status Act 2000 and is committed to treating all customers in accordance with it.

The Incident Book

This premises has an incident book in which you must record anything out of the ordinary that may have occurred during your shift, for example underage persons trying to buy alcohol, a drunken person trying to buy alcohol, a visit from the Gardaí (state reason for visit) or a potential equal status incident.

Ensure you record the date and time and nature of the incident even though you may not know the customers name although this would be helpful. This may be important for Court evidence.

Who Can Sell Alcohol?

• Only persons over 18 may sell alcohol otherwise a criminal offence will be committed.

• Persons who are under 18 Years of Age – may not under any circumstances go behind the counter to serve a customer alcohol. If you are under 18 you may carry out general duties in the premises or may make non-liquor sales only.

Who Can Buy Alcohol And Tobacco?

• Persons over 18 years only.

• If convicted of selling alcohol to a person under 18 the Court must impose a temporary closure order on the premises.

Temporary Closure Orders

If a licence holder is convicted of selling to underage drinkers or a number of other offences which will be dealt with later in this programme the Court has no discretion but to impose a Temporary Closure Order on the premises as well as a stiff fine.

During the period of the closure order the premises is closed in its entirety and no business, even non liquor business, can be carried out.

• Temporary closure orders are Mandatory, i.e. the judge has no discretion

• First Offence = closure for up to one week

• Second Offence = closure for up to 30 days

• Also carries = potential endorsement of Licence, Fines and Negative Publicity (as a big sign stating why the premises is closed has to be displayed on the front door).

Aiding And Abetting

Employees who sell alcohol to underage drinkers can themselves be prosecuted for ‘aiding and abetting’.

The Gardaí are now prosecuting employees who have been involved in underage sales on a regular basis as well as the licence holders themselves.

Proof Of Age

Anyone who looks under 23 years should be asked for proof of age. DO NOT take a chance. It is better to decline a sale than mistakenly sell to someone under 18 which may result in closure of the premises.

The only types of proof of age which you may accept are:

• Passport

• Drivers Licence

• National Age Card

• EC Identity Card

No student cards or other identification to be accepted under any circumstances Check the actual date of birth to the day and month, checking the year's not sufficient Drivers Licences - be vigilant as a licence can be obtained at 17 years so check date of birth. Take time to examine the card carefully and compare the photograph to the customer. Ask yourself does the card look genuine. If you are unhappy with the age card refuse the sale politely.

If no proof of age is available decline the sale politely and request the customer to return with acceptable proof of age. If you encounter resistance, stay calm and explain that under the law you are obliged to ask for ID – if a customer persists refer the matter to the manager.

Even regular customers (whom you may have asked before for proof of age or whom may be known to you ie neighbours etc.), where they look under 23, must be asked, on each occasion, for proof of age.

Persons Aged 18-21 Years

Anyone over 18 but under 21 must produce proof of age to stay in or enter the bar of the premises after 9pm at night.

It is an offence to allow such people on the premises without proof of age after 9pm.

• First offence – €1,500 fine

• Second offence – €2,000 fine.

• It is an offence for the customer also – €300

Practical Guidelines To Prevent Underage Sales

Care and time must be taken to assess the following factors:

• The customers true age

• Who is accompanying them (eg – ask yourself are the people accompanying them under 18 years?)

• Remember you may be making a sale to a wider party of people other then those who are standing before you at the counter

• Does the quality or mix of products look suspicious? (For example, is a person seeking three naggins of spirits rather than a large bottle?)

• Be particularly vigilant at certain times for underage persons attempting to purchase alcohol, for example Friday nights, Saturday nights, the day of the Junior Certificate or Leaving Certificate results and the days prior to this

• Always be conscious that purchases made may be handed over to someone under 18 years and look out for this. If you see someone handing over alcohol to a minor inform the local Gardaí immediately

• Never accept payment from a minor, ever if accompanied by a parent or guardian. This is illegal even if the parent assures you the alcohol is for them

• Make sure any such incident is recorded in the incident book even though you may not know the identity of the customer.

Children On Licensed Premises

As a general rule no one under 18 should be allowed in the premises at any time with the exception of:

• A child accompanied by a parent or guardian may be allowed in the premises between 10.30am (12.30pm on a Sunday) and 9.00pm (a child is anyone under 15 years) – 10.00pm May to September
  
  Note: You do not have to allow a child on the premises if the child’s presence could reasonably be regarded as injurious to his/her welfare.

• Persons between the ages of 15 and 18 years may be on the premises between 10.30am (12.30pm on a Sunday) and 9.00pm – 10.00pm May to September

• A child accompanied by a parent or guardian and also a person between the ages of 15 and 18 years can be on the premises on the occasion of a private function at which a substantial meal is served.

Supplying Alcohol To People Who Are Drunk

• It is an offence which can result in a temporary closure order to sell alcohol to a drunken person

• By law a ‘Drunken Person’ means a person who is intoxicated to such an extent as would give rise to a reasonable fear that the person might endanger themselves or anyone else

• you should be on the lookout for customers who display the normal signs associated with drunkenness eg. – slurred speech, swaying, staggering or rowdy behaviour – ie customers who are noticeably drunk

• If a customer demonstrates any of the above signs you should alert your manager to deal with the situation

• If there is no manager present you should politely take the customer aside, if possible away from other customers, and explain you are unable to sell to him and ask him to leave the premises

• If a customer refuses to leave do not put yourself in danger – call the Gardaí immediately

• Make sure any such incident is recorded in the ‘incident book’ even though you may not know the identity of the customer. Record the time of the incident the reasons why you were of the opinion the customer was drunk i.e. slurred speech, aggressive behaviour etc.

Penalty

A Court must impose a temporary closure order:

• First offence up to seven days closure

• Second or subsequent offence – up to 30 days closure

• Signs must be displayed on premises when closed

• Fines of €1,500 for first offence and €2,000 for second or subsequent offences.

Disorderly Conduct

It is an offence to allow disorderly conduct to take place on licensed premises.

What is ‘Disorderly Conduct’?

• It is any unreasonable behaviour which having regard to all the circumstances is likely to cause injury, fear or distress to anybody on the premises and includes violent, threatening, abusive, quarrelsome or insulting behaviour

• Conduct causing damage to property

• Conduct likely to be a risk to the health, safety or welfare of any person in the premises.

• If a customer displays any of the above behaviours you should alert your manager to deal with the situation

• If there is no manager present you should ask the customer to leave the premises

• If the customer refuses, do not put yourself in danger call the Gardaí immediately

• Make sure any such incident is recorded in the ‘incident book’ even though you may not know the identity of the customer

Penalty

• The Court must impose a temporary closure order

• The Court must impose a fine of €1,500 to €2,000

Powers Of The Garda Siochana To Enter Your Premises

A member of the Gardaí either in plain clothes or in uniform can come into your bar without a warrant at any time to do the following things:

• Inspection

• Examination

• Observation

• Enquiry

They may do what they think is proper for the following two purposes:

• For the prevention of offences under the Intoxicating Liquor Acts. For example they may come in and make enquiries as to training procedures or to check on the age of staff selling alcohol

• For the purpose of detection of an offence under the Intoxicating Liquor Acts. For example if an underage person alleges they purchased alcohol in your premises the Garda may come to the premises to make enquiries of staff

• It is up to the Gardaí to request to view your CCTV footage. You are obliged to let them examine this footage.
  
  Note: They may not take the film away but they may request you to preserve it in the event they wish to get an Order to seize it, which you are obliged to do.

• The Gardaí may request a statement to be made on the night in question or at some future date. If you are liable to prosecution you are entitled to make a statement but you are not obliged to do so
  
  Note: You are entitled to seek legal advice or your employer’s advice before making a statement to the Gardaí.

• To prevent a member of the Garda Siochana from exercising his powers under this legislation is punishable by a fine of €1,500 for a first offence and €2,000 for a second or subsequent offence

• Always notify the manager immediately if there has been a visit from the Gardaí and record the details in the Incident Book.

The Equal Status Act 2000

No business can discriminate against customers when admitting or serving them. All customers must be treated equally.

Discrimination is described as ‘less favourable treatment’ of a person or group of persons on any of the nine discriminatory groups below.

It is an offence to treat people differently and in a discriminatory way for any of the following reasons:

• Race – a particular race, colour or nationality

• Religion – no religious belief/different religious belief or background

• Family Status – pregnant/with children/sole carer

• Marital Status – single/married, separated, divorced/widowed

• Age – different ages

• Gender – male only/female only

• Disability – physical/mental and a range of medical conditions

• Membership of the Traveller Community

• Sexual orientation – gay/lesbian

Can You Refuse Service?

If you have a reasonable belief based on your own ‘knowledge and experience’ that to serve a particular person would lead to a ‘substantial risk of criminal or disorderly conduct or behaviour or damage to property’ then you may refuse service to a particular individual.

To make such a refusal you must have ‘prior and subjective’ knowledge of the character of the actual individual customer which enables you to conclude that to serve them would give rise to a substantial risk of criminal or disorderly behaviour. The risk must be ‘substantial’ and not merely ‘possible’. You must have a ‘reasonable belief’ that such a substantial risk exists.

What is ‘reasonable belief’?

It would not be reasonable to infer that there was a substantial risk of criminal/disorderly conduct just because service was sought by a member of a particular group.

You must know from your own knowledge or experience that the person in question had engaged in criminal or disorderly conduct in the past, either in your shop or another establishment and you must have some other reasonable grounds for coming to the conclusion that they might engage in that type of conduct in your premises, aside entirely from their membership of a particular group.

Fear of criminal or disorderly conduct must have a good foundation in fact and you must not rely on stereotypes or make assumptions about people falling within any of the 9 protected categories above.

Procedures For Refusal of Sale

If a decision is made to refuse service you must give a brief explanation to the customer and above all else make sure you have a valid reason for refusing service at the time the refusal is made.

The refusal should be made by the manager or by the next most senior member of staff working at the time if possible.

Customers can be refused where a refusal is in good faith and for the sole purpose of complying with the licensing acts.

Examples of this are:

• Where they are disorderly – to prevent disorderly conduct on the premises

• Where they are drunk

• Where they are known to be drinking alcohol within a 100 metres of the premises

• Where they are known to be handing over alcohol to persons under 18 years of age

• Always keep records of all incidents that occur in your bar. The Incident Book will play a vital part in defending any Equal Status claim against your bar.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.