Mr. Justice Charleton today handed down judgment in Health Service Executive v. Brookshore Limited, a case concerning the Irish ban on smoking in workplaces. The case appears to settle a question which might commonly be asked by customers of Irish pubs with comfortable smoking areas and with which Charleton J. begins his judgment: “What is a roof?”
The smoking ban is contained in section 47 of the Public Health (Tobacco) Act 2002 (as amended), which took effect on 29 March 2004. The ban was introduced to much objection from licensed vintners, who feared a negative impact on their trade and wanted greater exemptions. However, the ban is considered to have been a success for the Government of the day and resulted in plaudits for the Minister for Health of the day.
Section 47(7) sets out exemptions to the ban, the main ones being applicable to private homes, hotel bedrooms, prisons and accommodation provided in similar facilities. The exemption of most interest to many businesses in the hospitality industry, however, is that in paragraphs (c) and (d), which provide that the ban does not apply to an outdoor part of a premises which is covered by a fixed or movable roof, provided that no more than 50% of the perimeter is surrounded by one or more walls or similar structures.
The Brookshore case concerned a prosecution taken by the HSE, responsible for enforcement of the ban, against a pub in Naas. The HSE’s case was that, on inspection, they “found a completely enclosed laneway between two parts of the premises that was covered with a retractable canvas awning.” Like many outdoor smoking areas provided by Irish pubs since the ban, the area was furnished and included flat-screen televisions. Photographs of the area were submitted to the District Judge by each side: those of the owner showed a retracted roof covering and furniture cleared, while those submitted by the HSE showed the area in full use and with “the canvas awning completely blot[ting] out the sky”.
The District Judge inspected the premises and decided that the awning was not a roof or moveable roof within the meaning of the act and held as a fact that “the area had no roof”. He dismissed the prosecution on that basis and declined to hear oral evidence. However, the judge stated a case to the High Court, asking if the exemption applied.
Charleton J. noted the general rule that dictionaries should not be used as a reference point for judges when interpreting legislation, but felt that a dictionary was appropriate in this case.
What we call in Dublin “dinner hour” may be somebody else’s lunchtime. Someone’s “lounge” may be another person’s “sitting room” or “parlour”. School children may refer to felt-tipped pens as “markers” or “felt-tips”. Gym shoes may be “tackies” in one part of the country and “runners” in another. Introducing a man or a woman as ones “partner” does not mean today what it did 15 years ago. Some years ago it was very common for the friends of a girl who was getting married to organise a “shower” for her; this had nothing to do with water. I feel that a dictionary may help me.
He consulted the Oxford English Dictionary, which provided the following relevant definition of a “roof”:
the structure forming the upper covering of a building or vehicle. the top inner surface of a covered area or space.
Charleton J. found that it is an everyday word with a plain meaning and that this should be reflected in his interpretation of the legislation. He held that the area of the premises concerned was covered by a moveable roof and was not wholly uncovered by a roof or retractable roof.
A roof is a roof.
Therefore, the exemption to the smoking ban relied on by the pub did not apply. The issue pubs with awnings will now have to consider is whether 50% of the perimeter of their awning is surrounded by walls.