The High Court has refused to grant a declaration that a "freshwall" structure designed for use as a smoking area in bars complies with the the Public Health Tobacco Act 2002.
Malone Engineering Products Limited, Blanchardstown Corporate Park, Dublin, which had designed the structure as an "indoor solution to the smoking regulations", had sought the declaration against the Health Service Executive (HSE).
While stating that no prosecution has been taken against any licensed premises in which the structure has been installed, the HSE said some of its environmental health officers had expressed concerns that the structure did not comply with the Tobacco Act.
In his judgment yesterday, Mr Justice Roderick Murphy noted a unit of the structure concerned had been installed at Kinsealy Inn, Swords, Co Dublin.
It did not seem to him that the structure concerned was "outdoor". It was not in the common sense "indoor", but was called an "indoor" structure.
"If any structure has a roof and doors then by its very nature it is indoor and not outdoor." He said the company's promotional literature called it an "indoor solution to the smoking regulations".
Referring to the Kinsealy Inn structure, he said he was satisfied the building was not compliant with the regulations. The room was furnished like a pub, and could not be considered to be an outdoor premises, he said.
The court had earlier heard that Malone Engineering had in late 2004 designed the structure known as "Freshwall" as a smoking enclosure for use adjacent to licensed premises and to comply with the relevant Public Health (Tobacco) Acts.
In February 2006, the company launched its product in the RDS in Dublin and recorded about 200 "live inquiries" for purchases.
The HSE argued the term "outdoor" was inappropriate in relation to the "Freshwall" structure at the Kinsealy Inn. It said the structure included a timber floor with skirting board, radiators, a mirror at one end of the room and two television sets on either side at a high level. There was also comfortable seating provided for 27 people. The only means of access into and out of the room was through a door and there were two such doors in the structure.
While the structure was situated outside the main part of the Kinsealy Inn premises, it could not be described as "outdoor", the HSE contended.