The Gazette 1987

GAZETTE

LY/AUGUST

1987

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

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

Restaurant

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

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).

•

FOOTNOTES

1. Bord Fáilte intend making regulations in

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.

INCORPORATED

LAW SOCIETY

OF IRELAND

OVERNIGHT

ACCOMMODATION

Single or Double — £15 . 00

per night

(Breakfast included)

Also available at Week-ends

Telephone: 710711

150