Q&A: Why is there uncertainty over the legality of outdoor drinking?

What is going on in relation to outdoor drinking?

The Government and local authorities have put time and money into encouraging pubs and restaurants to prepare for a summer of outdoor eating and drinking amid the ongoing Covid-19 crisis, including by setting up temporary outdoor areas, but An Garda Síochána has now decided that a lot of those new outdoor tables are not covered by law for the consumption of alcohol.

How come? Aren’t the restaurants and bars all licensed?

Yes, they are. But when you’re seeking a licence to sell alcohol, you submit a plan with a red line showing the area within which your business intends to serve alcohol for consumption on the premises.

But the new outdoor tables are licensed by local authorities?

Yes, they are – or should be – and Fáilte Ireland has been involved in channelling €17 million in Government funding to help businesses buy tables and chairs for these new designated areas. The problem, however, is that the local authority licences are for the street furniture, not for the sale of alcohol.

Can’t An Garda Síochána exercise discretion in this regard?

Yes, and Garda Commissioner Drew Harris on Monday instructed senior officers that "discretion" should be used to police pubs and restaurants serving customers in temporary outdoor seating areas.

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The directive will effectively mean licensed premises which are acting responsibly will not be penalised or shut down for serving alcohol for consumption in these areas, even if they are found to be technically in breach of licensing legislation, senior sources said.

So is that the end of it?

No. Adrian Cummins, chief executive of the Restaurants Association of Ireland, says this is not an appropriate issue for the exercise of Garda discretion.

It’s one thing for a garda to exercise discretion in relation to, for instance, an apparent breach of the 20km travel rule during a lockdown, but another thing entirely in relation to the law governing a sector of the economy.

Is the Garda view of the law correct?

Maybe not. Licensing expert Constance Cassidy SC says that, in her opinion, it was usually okay to consume alcohol at the outdoor tables if the sale of the alcohol took place on the licensed premises. However, some local authorities might have bylaws that prohibited the consumption of alcohol outside a licensed premises, she said.

What kind of potential penalties are the bars and restaurants in question facing?

What's on everyone's mind, according to Cummins, is the decision by a judge of the Dublin District Court in May to refuse to renew the licence held by the Berlin D2 bar in Dublin, because of breaches of the public health guidelines there in August of last year. So it is a serious matter for business owners.

So what can be done?

Cummins says Acting Minister for Justice Heather Humphreys needs to step in and sign a statutory instrument under the powerful public health laws, allowing for the sale of alcohol for consumption at the street furniture that has been licensed by the local authorities.

So your street furniture licence would satisfy gardaí?

Exactly. Though not every table might be covered by a local authority licence, it seems. According to Cummins, the Government’s plan for a summer of outdoor drinking and dining has sparked “the biggest land grab since the gold rush” as businesses move to utilise the street space outside their premises.

Is that the only issue restaurants are concerned about?

No. The Restaurants Association of Ireland and three restaurants have begun a High Court challenge to what they say are "irrational" regulations permitting indoor dining in hotels while preventing indoor dining in non-hotel commercial restaurants.

The matter, which returned to the court this morning, has been adjourned to next month.