The High Court ruled that the covered smoking area at the Fishermans Inn in St. Johnston, County Donegal, did not qualify for an exemption from Ireland’s workplace smoking ban because it was not an outdoor area and was surrounded by walls or similar structures.
President of the High Court Kearns delivered the judgment on 15 February 2013 in an appeal by way of case stated brought by the Health Service Executive (HSE). The case arose from three related prosecutions against the pub’s corporate owner and two directors. The District Court had dismissed the charges after finding that the smoking area came within the exemption in section 47(7)(d) of the Public Health (Tobacco) Act 2002, as amended.
The prosecutions followed an HSE inspection on 15 April 2010. The District Court’s stated facts recorded that an environmental health officer saw five of six men in the designated area smoking. The area was a timber structure within a former courtyard, with a Perspex-type roof, raised wooden floor, seating along two sides, and access only from the adjoining lounge. The District Judge found that more than half of the structure’s walls were open.
The HSE argued that the courtyard’s surrounding stone walls and overlapping roof and gutters meant the space was effectively enclosed. The respondents argued that the relevant perimeter was the footprint of the raised timber structure, which they said had open sides and was an outdoor area under the statutory wording.
Kearns held that the exemption required both an outdoor area covered by a roof and no more than half of its perimeter to be surrounded by walls or similar structures. He said the District Court’s findings that people could not leave the smoking area directly into the open air, and that access was only through the lounge, made it extremely difficult to characterise it as outdoors. He also concluded that the surrounding stone walls, roof overhang and raised seating had to be considered, rather than assessing only the timber structure.
The High Court answered all six questions in the case stated against the District Judge’s legal conclusions: the area was not within the exemption; it was not “outdoor”; its perimeter was surrounded by walls or similar structures; more than 50 per cent of the perimeter was surrounded; the judge was wrong to consider only the wooden elements; and the perimeter was not the outer edge of the seating.
The judgment provided the High Court’s opinion on questions of law. It did not itself determine guilt in the three prosecutions or impose a penalty; the source does not state what further steps followed in the District Court.