25. — Section 15 of the Equal Status Act 2000 is amended by the addition of the following subsections:

“(3) (a) This subsection applies to the option given under subsection (2), (3) or (4) of section 34 of the Intoxicating Liquor Act 1988 to the holder of a licence of any licensed premises to allow a person under 18 to be in the bar of those premises at the times, or in the circumstances, specified in those subsections.

(b) The non-exercise of the option to which this subsection applies shall not of itself constitute discrimination.

(c) The reference in paragraph (a) to section 34 is to that section as substituted by section 14 of the Intoxicating Liquor Act 2003.

(4) If—

(a) the holder of a licence or other authorisation which permits the sale of intoxicating liquor adopts a policy of refusing to supply intoxicating liquor to any person below a specified age which exceeds 18 years,

(b) a notice setting out the policy is displayed in a conspicuous place in or on the exterior of the premises, and

(c) the policy is implemented in good faith,

a refusal to serve intoxicating liquor to such a person shall not constitute discrimination on the age ground.

(5) Subsections (3) and (4) are without prejudice to subsections (1) and (2).”.

INTOXICATING LIQUOR ACT 2003

EXPLANATORY MEMORANDUM

[This memorandum is not part of the Act and does not purport to be a legal interpretation.]

General

The primary purpose of the Act is to amend the Licensing Acts 1833 to 2003 in order to respond to certain recommendations of the Commission on Liquor Licensing set out in the Report on Admission and Service in Licensed Premises (December 2002) and the Final Report (April 2003), and to concerns outlined in the Interim Report of the Strategic Task Force on Alcohol (May 2002). Also relevant in this context is the special initiative on tackling alcohol misuse set out in chapter 2 of Sustaining Progress (Social Partnership Agreement 2003-2005).

The Commission on Liquor Licensing, which was established in late 2000 and completed its work in March 2003, was charged with reviewing the liquor licensing system. It submitted four reports containing over 130 recommendations:

(a) Interim Report on Off-Licensing (May 2001);

(b) Second Interim Report (July 2002);

(c) Report on Admission and Service in Licensed Premises (December 2002);

(d) Final Report (April 2003).

This Act is mainly concerned with combating drunkenness and disorderly conduct as well as addressing the problems of underage and binge drinking. This package of urgent reforms is intended to improve compliance with, and enforcement of, the intoxicating liquor code. Other reforms recommended by the Commission on Liquor Licensing, including far-reaching structural reform of the licensing system, will be addressed in the codification of the entire liquor licensing code which has also been recommended by the Commission. It is intended that an outline of the codification Bill will be available by mid-2004.

The main provisions of the Act are as follows:

• Sections 4 to 6: Provisions relating to the sale and supply of intoxicating liquor to drunken persons and drunkenness on licensed premises.

• Sections 7 and 8: Duty on licensees to preserve order and prevention of disorderly conduct on licensed premises.

• Section 9: Temporary closure of premises in relation to certain offences.

• Section 10: Amendment of prohibited hours on Thursdays.

• Section 11: Revised provisions relating to special exemption orders, including a role for local authorities in determining the duration of such orders in their areas.

• Section 12: Prohibition of entertainment during drinking-up time.

• Sections 13 to 16: Provision of intoxicating liquor to persons under 18; restrictions on persons under 18 in bars of licensed premises; production of evidence of age by persons between 18 and 21; further consequential amendments of the Intoxicating Liquor Act 1988.

• Section 17: Consumption of intoxicating liquor in the vicinity of licensed premises or in an off-licence.

• Section 18: Entry, inspection, etc., of licensed premises by members of Garda Síochána.

• Section 19: Jurisdiction of the District Court in cases of prohibited conduct on licensed premises. This involves a transfer of jurisdiction from the Equality Tribunal (ODEI) in such cases.

• Section 20: Prohibition on supply of intoxicating liquor at reduced price.

• Section 21: Licences to national sporting areas. This provides that the Minister for Arts, Sport and Tourism may issue certificates to national sporting arenas, designated by regulations, to obtain an intoxicating liquor licence, subject to certain conditions.

• Section 22: Provision for ministerial regulations in relation to prohibiting or restricting practices likely to encourage excessive consumption of alcohol, and the particulars to be affixed to containers in which intoxicating liquor is sold for consumption off the premises.

• Section 23: Application of the Act to registered clubs.

• Section 24: Exercise of jurisdiction (determined by location of the licensed premises).

• Section 25: Amendment of section 15 of Equal Status Act 2000.

Preliminary and general

Section 1 contains the short title, collective citations, construction and commencement provisions. These are standard provisions in legislation of this type.

Section 2 contains relevant definitions. The definition of “bar” is similar to that in the Intoxicating Liquor Act 1988. The definition is important because a distinction is made in sections of the Act between licensed premises and the bar of licensed premises. Where admission to the bar is prohibited, access to other parts of the premises is not affected, e.g. in certain cases a dining room.

The section also contains important definitions of “drunken person” and “disorderly conduct”. The former is similar to that in section 4(1) of the Criminal Justice (Public Order) Act 1994 which provides that it shall be an offence for any person to be present in any public place while intoxicated to such an extent as would give rise to a reasonable apprehension that the person might endanger themselves or any other person in the vicinity. The definition of “disorderly conduct” takes account of recommendations of the Commission on Liquor Licensing in its Report on Admission and Service in Licensed Premises.

Section 3 repeals a number of provisions that are replaced in the Act.

Conduct on licensed premises

The provisions set out in Part 2 of the Act update the law in relation to conduct on licensed premises. Sections 4, 5 and 6 deal with drunken persons and drunkenness, while sections 7 and 8 deal with disorderly conduct. They replace provisions in the Refreshment Houses (Ireland) Act 1860 and the Licensing Act 1872.

Section 4 prohibits the supply of intoxicating liquor to drunken persons by licensees, as well as drunkenness in the bar of licensed premises. It provides that a licensee shall not admit a drunken person to the bar, and that where a person is drunk on leaving licensed premises, it shall be presumed that the person was drunk while on the premises until the contrary is proved. This section replaces and expands on provisions in sections 13 and 18 of the Licensing Act 1872 which are repealed.

Section 5 prohibits the supply of intoxicating liquor to drunken persons in licensed premises by a person other than the licensee.

Offences by drunken persons are set out in section 6. A drunken person shall leave licensed premises on being requested to do so by the licensee or by a Garda. Moreover, such a person shall not seek entry to the bar of any licensed premises (access to a restaurant or other facilities within a hotel will not be affected). A Garda power of arrest is also included.

Section 7 places a duty on licensees to preserve order on licensed premises, while section 8 prohibits disorderly conduct on such premises. A person engaging in disorderly conduct must leave the premises on being requested to do so by the licensee or a member of the Gardaí and shall not re-enter the bar of the premises within a period of 24 hours. A Garda power of arrest is included. The section also provides that a licensee may refuse admission to a person convicted of an offence under the section where such admission could reasonably be regarded as involving a substantial risk that the person would engage in disorderly conduct.

Section 9 extends the temporary closure of premises penalty to include offences under several sections, including section 4 (supplying intoxicating liquor to drunken persons and permitting drunkenness) and section 7 (duty of licensee to preserve order). While temporary closure will be mandatory in cases of conviction, the District Court will retain a margin of discretion with regard to the duration of the closure period. This penalty is confined under existing legislative provisions to convictions for underage drinking.

Other amendments of Intoxicating Liquor Acts

Part 3 contains amendments to existing legislative provisions, including those relating to persons under the age of 18 years set out in Part IV of the Intoxicating Liquor Act 1988.

Section 10 provides that Thursday night closing time will revert to 11.30 p.m. (instead of 12.30 a.m.). The Commission on Liquor Licensing has recommended this change and it is also in line with the recommendations of the Strategic Task Force on Alcohol.

Section 11 replaces section 5 of the Act of 1927 which makes provision for the grant of special exemption orders. It provides for a local authority role in determining the duration of special exemption orders in its administrative area. The District Court will retain discretion in granting such orders but shall have regard to any resolution adopted by a local authority in the area in which the premises are located. The local authority must consult with the Gardai and consider the views submitted by the Gardai and any other person, including views on health aspects, in advance of adopting any resolution. The grounds on which objections to the grant of such orders may be made are extended to include undue inconvenience or nuisance to persons residing in the locality or an undue risk to public order in the locality. These changes are in line with the views of the Commission on Liquor Licensing and the Strategic Task Force on Alcohol.

Section 12 prohibits the provision of entertainment during the 30 minutes drinking-up time that is permitted under existing provisions. Section 4(2) of the Public Dance Halls Act 1935 which permits dancing during the 30 minute period following expiry of a special exemption order is repealed. The Commission on Liquor Licensing has recommended this change in order to ensure that the original purpose of allowing an orderly clearing of premises is not defeated.

Section 13 substitutes a new section for section 32 of the 1988 Act. It prohibits the purchase of alcohol for, or delivery to, persons under the age of 18 by persons other than licensees. The law in relation to licensees is set out in section 31 of the 1988 Act. However, the purchase or delivery of intoxicating liquor for consumption by a person under 18 in a private residence where a parent or guardian has given explicit consent shall not be unlawful.

Section 14 substitutes a new section for section 34 of the 1988 Act. It prohibits persons under 18 from bars of licensed premises. Under subsection (2), a licensee may, however, permit a child (under 15) to be in the bar if accompanied by a parent or guardian but not after 9.00 p.m. This discretion does not apply where it appears to the licensee that the child's presence in the bar could reasonably be regarded as injurious to the child's health, safety or welfare. Under subsection (3), a licensee may permit a person aged 15 to 17 to be in the bar unaccompanied by a parent or guardian but not after 9.00 p.m. Subsection (4) permits a licensee to allow a child accompanied by a parent or guardian or a person aged 15 to 17 to be in the bar after 9.00 p.m. on the occasion of a private function at which a substantial meal is served to persons attending the function, e.g. a wedding reception. The existing provision in section 35 of the 1988 Act which prohibits persons under 18 from being in the bar where an exemption order is in force remains unchanged. Subsection (5) contains a number of exemptions to the general prohibition. The remaining subsections are broadly similar to existing provisions in section 34 of the 1988 Act.

Section 15 introduces an entirely new provision and inserts a new section in the 1988 Act (a new section 34A). It requires that persons aged 18 to 20 carry an “age document” in order to be in the bar of licensed premises after 9.00 p.m. An age document may be one of the following: a Garda age card; passport; identity card of a member state of the European Communities; driver's licence; a document prescribed in regulations to be made by the Minister. An age document is not required in order to gain access to other parts of the premises. This new obligation to produce an age document in order to gain admission to bars is intended to assist licensees in complying with provisions relating to underage consumption of alcohol and to assist Gardaí in enforcing the law.

Arising from the preceding changes, section 16 contains a number of further amendments to the 1988 Act. It amends sections 31(2) and 33(1) to make it clear that the consumption of intoxicating liquor by a person under 18 in a private residence is conditional on the explicit consent of that person's parent or guardian. Secondly, it makes it an offence for persons aged 15 to 17 to be in bars of licensed premises after 9.00 p.m. unless attending a private function at which a substantial meal is served to persons attending the function. Finally, it amends the existing temporary closure order provision (section 36A of the 1988 Act as inserted by the Intoxicating Liquor Act 2000) in order to make it an offence not to affix a conspicuous notice giving details of the closure order as required by that provision.

Section 17 contains provisions dealing with the consumption of intoxicating liquor purchased for consumption off the premises and, for this purpose, updates and replaces section 13 of the Intoxicating Liquor (General) Act 1924.

This section provides that a licensee shall be guilty of an offence if, with the licensee's privity or consent, intoxicating liquor supplied by the licensee in a closed container for consumption off the premises is consumed in another premises owned or controlled by the licensee or in a public place within 100 metres of the licensed premises (this limit of 100 metres is also referred to in the Criminal Justice (Public Order) Act 2003). The person who consumes such intoxicating liquor shall also be guilty of an offence. The section also restates the existing prohibition on the consumption of intoxicating liquor in an off-licence.

Section 18 is intended to permit any member of the Gardaí, whether in uniform or not, to enforce the licensing laws. This has been recommended by the Commission on Liquor Licensing.

Miscellaneous

Part 4 deals with a number of miscellaneous matters, including a transfer of jurisdiction from the Equality Tribunal to the District Court and a prohibition on the supply of intoxicating liquor at reduced prices.

Section 19 provides that a person who claims that prohibited conduct has been directed against him or her on, or at the point of entry to, licensed premises may seek redress before the District Court. For this purpose, prohibited conduct is defined as discrimination against, or sexual harassment or harassment, of a person contrary to Part II of the Equal Status Act 2000 on, or at the point of entry to, licensed premises. The means of redress currently available under the Equal Status Act are extended to include temporary closure of the premises concerned. Where the District Court is satisfied that a person is entitled to redress and makes such an order, a person may object to the renewal of the licence of the premises concerned.

Provision is made in section 19 for the Equality Authority to apply to the District Court for redress in certain cases (subsection (6)), and the Authority may also provide assistance to persons applying to the courts for redress (subsection (7)).

Section 20 prohibits the supply of intoxicating liquor at a reduced price during a limited period after 10.30 a.m. on any day, e.g. “happy hours”. This is intended to discourage practices which may lead to excessive consumption of intoxicating liquor. It is not intended to prohibit retail practices such as “sales” or product promotions over a number of days.

Section 21 will allow limited and controlled sale of alcohol at both sporting and non-sporting events in designated areas of national sporting arenas and will regularise the licensing position of these arenas. The Minister for Arts, Sport and Tourism may designate by means of regulation certain national sporting arenas. Such designated venues may then apply to the Minister for a certificate which will enable them to secure a licence for the sale and consumption of intoxicating liquor in designated areas of the arena.

Section 22 provides for the making of regulations to prohibit or restrict licensees from engaging in promotional practices that are intended or likely to encourage persons to consume alcohol to an excessive extent and, secondly, to specify particulars to be affixed to any container in which intoxicating liquor is sold for consumption off the premises which enable the licensee and the licensed premises concerned to be identified.

As regards the former, the Commission on Liquor Licensing recommended that promotional practices that are conductive to or likely to result in excessive consumption of alcohol should be prohibited by law. This view is supported by the Strategic Task Force on Alcohol.

As regards labelling requirements, section 17 of the Intoxicating Liquor Act 2000 provides that the name of the owner, and the address, of premises shall be clearly indicated on a label to be affixed to any container in which intoxicating liquor is sold for consumption off the premises. This section has not been commenced and is now repealed.

Implementation of these provisions by means of regulations is intended to avoid any later challenge to the legislation on the grounds that proper procedures had not been followed. It is intended to notify the European Commission of proposed regulations under this section in accordance with the so-called Technical Standards or Transparency Directives (Directives 98/34/EC and 98/48/EC). These Directives are intended to enable the European Commission and the member states to examine in advance proposed national technical rules in the interests of transparency and the smooth functioning of the internal market.

Section 23 deals with the application of the Act's provisions to registered clubs. Sections that amend, or replace, existing sections in the Intoxicating Liquor Act 1988 already apply to registered clubs by virtue of section 16 of the Intoxicating Liquor Act 2000.

Section 24 determines the exercise of jurisdiction by the courts in relation to section 9 and 19.

Section 25 contains two amendments to the Equal Status Act 2000. The first amendment safeguards the discretion of licensees in relation to the presence of persons under the age of 18 in bars of licensed premises (section 34 of the Intoxicating Liquor Act 1988 as substituted by section 14 of this Act). This is in line with recommendations of the Commission on Liquor Licensing and the Strategic Task Force on Alcohol. The second amendment provides that a licensee may set a minimum age for the sale and consumption of alcohol which is above the statutory minimum of 18 as long as the policy is publicly displayed and is implemented in a non-discriminatory manner.

An Roinn Dlí agus Cirt, Comhionnannais agus Athchóirithe Dlí, Iúil, 2003.