In this case Health Service Executive v. St Johnston Taverns Ltd  IEHC 69 (High Court, Kearns P, 15 February 2013) the High Court decided that a designated “smoking area” in a public house, trading as the “Fisherman`s Inn”, Main Street, St. Johnston, County of Donegal did not fulfil the requirements of the exceptions provided for in the legislation prohibiting smoking in workplaces.
This was a Case Stated from District Court (Judge Hughes) which sought the opinion of the High Court as to whether a smoking area in the public house came within exemption provided for in s. 47(7)(d) of the Public Health (Tobacco) Act 2002 as amended by s. 16 of the Public Health (Tobacco) (Amendment) Act 2004.
The prosecution arose out of an inspection of the premises on the 15th April, 2010 by Ms. Costello, an Environmental Health Officer employed by the Health Service Executive. Ms. Costello observed smoking in a designated area of the licensed premises comprising of a wooden structure constructed within what originally appeared to have been a courtyard and was covered by a Perspex type roof. The courtyard was almost entirely covered by a roof, as the soffits and guttering attached to the solid stone walls overlapped and overhung the Perspex roof of the wooden structure. The smoking area structure area was entered through double doors in a UPVC wall which led from the bar lounge.
The Public Health (Tobacco) Act 2002 (the “Principal Act”) was enacted to give effect to, inter alia, the Government ban on smoking in indoor workplaces. Section 47 of the Principal Act was substituted by s. 16 of the Public Health (Tobacco) (Amendment) Act 2004 and was enacted for the purposes of “reducing the risk to and protecting the health of persons”. As such, smoking a tobacco product was thus prohibited in a range of enclosed, as opposed to outdoor, public places, including public houses and restaurants.
It is an offence to smoke a tobacco product in “a specified place”. A “specified place” is defined as including “a licensed premises, insofar as it is a place of work”. The legislation allows for some exceptions and the exception relied on by the Defendant in this instance was that structure came within s. 47(7)(d) in that it was:
“an outdoor part of a place or premises covered by a fixed or movable roof, provided that not more than 50 per cent of the perimeter of that part is surrounded by one or more walls or similar structures (inclusive of windows, doors, gates or other means of access to or egress from that part)”.
Mr Justice P. Kearns stated that the terms of s. 47(7)(d) were unambiguous and required that :-
(a) there must be an outdoor part of a place or premises covered by a fixed or moveable roof, and
(b) not more than 50% of the perimeter of that part can be surrounded by one or more walls or similar structures.
Therefore, each of these criteria must be satisfied. Accordingly, the area must be outdoor, covered by a fixed or moveable roof and not more than 50% of the perimeter of this outdoor area must be surrounded by one or more walls or similar structures.
The judge was of the opinion that the entire perimeter of the structure could be described as “surrounded by walls” when given its ordinary meaning. The structure was encircled by walls and almost the entire of that area was roofed either by the roof of the pagoda structure or by the overhanging gutters/soffits of the original premises. He was of the view that the structure was “a room within a room” and found that the smoking area of the Fishermans Inn did not meet the statutory criteria and therefore fell foul of the exemption provided for in s. 47(7)(d) of the Act of 2002, as amended.
The writer professes that he has not been in many smoking areas of pubs but, from the descriptions received of many of the smoking areas in pubs, hotels and discos throughout the country, it would appear that many smoking areas would fall foul of the exception.