The Gazette 1987

JU LY/AUGUST

1987

GAZETTE

could be taken into account by the Court in two ways. Firstly, the Court could say that a general implied power deriving from public policy entitles it to refuse the certificate where such grant, renewal or transfer would facilitate illegality. Secondly, the character of an applicant for the grant, renewal or transfer of a licence is a matter to which the Court must have regard and a breach of the Planning Acts could be regarded as such a matter. In Comhaltas Ceolteoiri Eireann (High Court 1977, No. 299SS), Finlay P. in his j udgment delivered on 14 December 1 977, had this to say in relation to allegations of breaches of the Planning Acts in licensing applications: " It is, however, proper that I should add my view that where what is before the learned District Justice by way of objection is an allegation of a breach of the Planning Acts that, subject to his entire discretion as to the validity and strength of such objection, it would certainly be open to him to have regard in the one case to any conviction obtained or proceedings instituted by the Planning Authority and in the other case to the absence of any proceedings or conviction. It would be open to a District Justice in his discretion to take the view that the body charged with the enforcement of plan- ning permission and conditions attached to it being the same body as imposed those conditions is the person whom he might expect to act most vigilantly in relation to any breach." To sum up under this heading, convictions under the Planning Acts may be taken into account by the Court as appertaining to the character of the applicant. In the case of alleged or apparent breaches of the Planning Code the fact that proceedings have not been instituted by the planning au t ho r i ty or other remedies pursued by either the authority or any other person entitled are factors which the Justice should consider. Convictions and Endorsements The existence of one or t wo convictions recorded against a

licence will, quite naturally, be a matter of great concern to both vendor and purchaser. On 12 July 1986, the Supreme Court issued its judgment in Fitzpatrick & Anor. -v- McCormack (No. 145 / 85, Finlay C. J. nem.diss.). The net effect of this decision was to overturn the older authorities in regard to the status of persons holding under the authority of temporary (adinterim) transfers. It was held (1) that such transferees were, from the time the temporary transfer was granted, the holders of such licences; (2) that any conviction for recordable offences against the transferor (that is, the person in whose name the licence was issued) taking place after the grant of the ad interim transfer would not fall to be recorded on the licence. This decision will remove the worry of pending proceedings against the vendor. Transfer of other licences and certificates attaching to licensed premises Certificate There is no provision in the Licensing Code for having a restaurant certificate or a limited restaurant certificate transferred into the name of the purchaser until the annual licensing court. Never- theless, there is no reason to suppose that the premises do not continue to be certified as a res- taurant or limited restaurant. Dance Licence A public dancing licence is not transferable from the vendor to the purchaser. The latter can apply to the District Court for a new licence, with the consent of the licensee under the existing licence (sec- tion 8, Public Dance Halls Act 1935). Music and Singing Licences This licence is transferable on application to the District Court (section 51, Public Health Acts (Amendment) Act 1890). Registration of Food Premises Where a food business in a registered f ood premises is t r ans f e r r ed f r om registered proprietor to another person, that person shall, within one month Restaurant

of the t r ans f e r, no t i fy the health board in writing (article 44 (1), Food Hygiene Regulations 1950, as amended by the Food Hygiene (Amendment) Regulations 1971). Registered Hotel Premises Where the registered proprietor transfers, on sale or otherwise, the premises and the business carried on therein to another person, the transferee shall be entitled, on application in the prescribed form and manner to Bórd Fáilte and on satisfying the Bórd that he has become the proprietor of the said premises, to be registered as the registered proprietor of the said premises (section 40, Tourist Traffic Act 1939). • July 1987 in relation to the requirements for the registration and renewal of registration of hotels. It is intended that these regulations will considerably update the physical requirements in respect of premises for registration. One major change concerns the number of bedrooms. An hotel which is coming for registration for the first time or has been out of registration for three years, will be required to have 45 bedrooms if in Dublin or Cork metropolitan areas and 20 bedrooms elsewhere. FOOTNOTES 1. Bord Fáilte intend making regulations in

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