The Gazette 1987

GAZETTE

LY/AUGUST

1987

therefore conclude that the

plaintiff is entitled to damages."

( Pp . 9 - 19)

Kelly -v- Crowley,

the

requisitions concerning the type of

licence were replied to by

forwarding the original licence for

inspection. Murphy J. had this to

say concerning the duty of care:

" It seems to me that in every

case in which a solicitor acts on

behalf of a client in the purchase

of premises in respect of which

there has been granted a licence

for the sale of intoxicating liquor,

the solicitor is bound to concern

himself with the nature of the

licence a t t ach i ng to the

premises; the power of the

vendor to procure such licence

to be vested in the purchaser

and the means by which such

licence is transferred to or

vested in the client . . . In the

circumstances it seems to me

that the conclusion is in-

escapable — even in the

absence of evidence of any

practice or custom in relation to

the exercise of the solicitor's

profession — that a solicitor

acting on behalf of a lay client in

the purchase of licensed

premises is bound to make

appropriate enquiries as to the

nature of the licence attaching

thereto."

(Pp. 1 7 - 1 8 )

Murphy J. later concluded:

" . . . a direct obvious and

conclusive means of putting a

pu r chase r 's

solicitors

possession of all of the relevant

facts with regard to the licence

attaching to any given premises

for sale"

was by an inspection of the

relevant Register of Licences prior

to the sale.

Sleeping accommodation for

guests

If premises to which an hotel

licence is attached cease to

operate as an hotel by not having

the required number of rooms for

travellers then " t he licence would

cease to be a protection to the

holder"

(Quinn -v- Bourke

(1906)

2 IR 94). If the licence was granted

prior to the commencement of the

Tourist Traffic Act 1952 (that is, 3

July 1952), 10 apartments must

be kept available for the sleeping

accommodation of travellers. In the

case of a licence granted between

3 July 1952 and the commence-

ment of the Intoxicating Liquor Act

1960 (that is, 4 July 1960), the

requirement is for 10 rooms but, if

the licence was granted conse-

quent upon a declaration obtained

under the 1952 Act and the pre-

mises are situate in a county

borough, 20 rooms must be kept

available. In the case of hotel

licences granted subsequent to 4

July 1960 the requirement is for 20

rooms for premises situate in a

county borough and 10 rooms if

situate elsewhere.

Public bar facilities

A licence granted on the basis that

the premises constituted an hotel

precludes the licensee f r om

maintaining a public bar on the

premises unless an order pursuant

to section 19 of the Intoxicating

Liquor Act 1960 is obtained. The

grant of a section 19 order

presents little d i f f i cu l ty and

requires merely the extinguishment

of an ordinary 7 day licence which

may be drawn from anywhere

within the State (see

Application of

Dunne [1968] IR 105).

While the

effect of such an order will be to

remove the visual distinction

between premises licensed on the

basis of being an hotel and those

licensed as an ordinary public-

house, the order will not operate to

relieve the licensee from continuing

to trade as an hotel with the

requisite number of rooms set

apart for the sleeping accommo-

dation of travellers nor from

maintaining registration in the

register of hotels.

Registration in the Register of

Hotels

A requirement of registration in the

register of hotels kept by Bórd

Fáilte arises under the Tourist

T r a f f ic Ac ts and under the

Licensing Acts.

Section 33 of the Tourist Traffic

Act, 1939, as amended by s.3 TTA

1983, provides that it shall not be

lawful for the proprietor of any

premises to describe or hold out or

permit any person to describe or

hold out such premises as an hotel

unless such premises are registered

in the register of hotels and such

proprietor is registered in that

register as the registered proprietor

of such premises. The penalty for

contravention of the section is a

fine not exceeding £500 together

with, in the case of a continuing

o f f ence, a f u r t her fine (not

exceeding £300 in all) not ex-

ceeding £20 for every day during

which the offence is continued.

Section 20 of the Intoxicating

Liquor Act 1960 provides that a

renewal of hotel licences which

were (i) originally granted conse-

quent upon a declaration obtained

under the Tourist Traffic Act 1952,

or (ii) were granted after 4 July

1960, shall not be allowed unless

the premises are registered in the

register of hotels.

New Licence applied for in the

case of an existing licensed hotel

A further complicating factor may

arise in the case of pre-1 960 hotel

licences. If at any time after 4 July

1960 it became necessary to apply

to the Circuit Court for a new

licence in respect of the premises

on the grounds that (i) there was

a failure to renew the existing

licence at any time within the

previous five years or, (ii) the

premises were extended by the

incorporation of additional or

adjoining premises, the licence so

granted will be a new hotel licence

and will carry with it the require-

ments of registration in the register

of hotels and, if the premises are

situated in a county borough, the

maintenance of 20 rooms set apart

for travellers.

In the

Application

of Dec Ian

Bannerton

[1984] ILRM

662,

premises known as the Mount

Hotel, Ballinasloe, were first

licensed on 29 March 1960 under

the provisions of section 2(2) of the

Licensing (Ir.) Act 1902. The

licence was allowed to lapse in

1976 but a new licence was

granted in respect of the premises

within the relevant five year period

at Galway Circuit Court on 28 July

1978. This licence was then

renewed at each of the annual

licensing sessions held in the years

up to 1981. At the annual licensing

court for the year 1982 objection

was taken on behalf of the Gardai

that the hotel was not registered in

the register of hotels kept by Bórd

Fáilte. The matter came before the

High Court by way of a consul-

tative case stated. The applicant

accepted that the licence granted

146