THE HIGH Court ruled yesterday that a retractable canvas awning covering an alleyway in a Co Kildare pub was a roof, and therefore breached the smoking ban.
Mr Justice Peter Charleton ruled a District Court judge had been wrong to dismiss a charge of a breach of the smoking ban against the pub, which had created a smoking area with the retractable roof.
The 2002 Public Health Tobacco Act bans smoking in a range of enclosed public places, with exceptions for unroofed areas and for outer pagoda type areas with roofs if they have at least 50 per cent of their walls missing.
District Justice John Coughlan had dismissed proceedings by the HSE against Grace’s pub in Naas, Co Kildare, after finding the awning, which could entirely cover an enclosed laneway between two parts of the pub premises, was not a “roof” under the Act.
Yesterday, Mr Justice Charleton declared “a roof is a roof”, and the retractable awning created a roof and a fully enclosed area for smokers, in breach of the ban.
He noted the pub claimed the area at issue, which had bar stools, varnished wooden counters and a large flatscreen TV, was a place where customers could legally “while away their time watching TV, drinking pints and smoking to their heart’s content”. This area was clearly designed to attract smoking customers, where they could be entertained and protected from the elements by a continuous sloped canvas membrane. Comfort and shelter were the purpose of this awning, it was therefore a roof, and it made no difference what it was made of, he ruled.
The case arose after Brookshore Ltd, operators of Grace’s Public House, North Main Street, Naas, was charged with a breach of the smoking ban following an inspection by the HSE in April 2008 under its powers to enforce the 2002 Public Health (Tobacco) Act.
The HSE said that while nobody was smoking inside the bar, people were smoking in a completely enclosed laneway between two parts of the premises covered by a retractable canvas awning. The HSE argued the alleyway was entirely covered by a roof and the pub was in breach of the ban.
The pub denied any wrongdoing and claimed there was no roof but an awning.
Mr Justice Charleton held the smoking area was covered by a movable roof, the exception to the ban did not apply and the District Justice was entitled to proceed to conviction for the offence. It was not possible, he said, to accept that any membrane covering the upper surface of a room or premises which impeded smoke dispersal was anything other than a roof.