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D.P.P. v. Tivoli Cinema Ltd. [1998] IESC 54; [1999] 2 IR 260; [1999] 2 ILRM 153 (7th December, 1998)
O’Flaherty
J.
Murphy
J.
Barron
J.
82/98
THE
SUPREME COURT
IN
THE MATTER OF A CASE STATED PURSUANT
TO
THE PROVISIONS OF SECTION 2 OF THE
SUMMARY
JURISDICTION ACT, 1857 AS
AMENDED
AND EXTENDED BY SECTION 51
OF
THE COURTS (SUPPLEMENTAL
PROVISIONS)
ACT, 1961
BETWEEN
THE
DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor/Appellant
and
TIVOLI
CINEMA LIMITED
Accused/Respondent
JUDGMENT
delivered on the 7th day of December 1998 by BARRON J. [Nem Diss.]
(2)
1. The
defendant is the proprietor of premises at Francis Street, Dublin known as the
Tivoli Theatre. This is a custom built premises developed over the years 1986
to 1993. On the first storey, there is a modern theatre. On the ground floor,
there is also a modern theatre. It has a stage but there is no fixed seating.
The floor is concrete and depending upon the entertainment being provided, it
may or may not have seating laid out for its audience. The premises have all
necessary planning permissions and local authority approvals.
2. The
present proceedings relate solely to the use of the ground floor theatre for
modern music late night concerts when the seating is not in use.
3. The
defendant was at all material times the holder in respect of its premises of a
music, singing and public entertainment licence issued under the provisions of
the Public Health (Ireland) Act, 1890; and a licence under s.
7
of
the Excise Act, 1835. Such premises were accordingly a
“theatre”
(3)
for
the purposes of the
Intoxicating Liquor Act, 1927.
S.1(1) of that Act
(“the
Act”)
defines
“theatre”
as
“a
theatre
or place of public entertainment licensed for the sale of intoxicating liquor
under section 7 of the Excise Act, 1835”.
Such
licence is defined as a
“theatre
licence”.
4. To
understand the nature of the present proceedings, it is helpful to consider the
circumstances in which a licence can be issued under the provisions of s. 7 of
the Excise Act, 1835.
This
section is as follows:
“...
it shall be lawful ... to sell beer, spirits, and wine in any theatre
established under a royal patent, or in any theatre or other place ofpublic
entertainment licensed by the Lord Chamberlain or by justices of the peace,
without the production by the person app lying for such licence or licences of
any certificate or authority for such person to keep a common inn, ale house,
or victualling house...”
(4)
5. The
essential element so far as it relates to the present case is that s. 7
provides for a licence to issue to
“other
place of public entertainment”.
There
is no specific definition of such other places of public entertainment.
6. At
the passing of the 1835 Act, s. 2 of the Disorderly Houses Act, 1751 provided,
inter alia, that “any house, room, garden or other place kept for public
dancing, music or other public entertainment of the like kind” required a
licence. S. 51 of the Public Heath (Ireland) Act, 1890 provided that
“a
house, room, garden, or other place ... should not be kept or used for public
dancing, singing, music, or other public entertainment of the like kind”
without
a licence. This latter licence is now obtainable from the District Court as
successor to the justices of the peace. As the holder of such a licence the
defendant was entitled to and obtained a licence under s. 7 of the Excise Act,
1835. The basis of the entitlement is important when considering the issues
raised in the present case.
(5)
7. The
sale of intoxicating liquor in a theatre as defined by the Act is controlled by
Part II of the Act which deals with prohibited hours in relation to the sale of
intoxicating liquor. Sections 20 and 21 relate specifically to theatres, as
defined. They are as follows:
“(20)(1)
No person shall be admitted to any theatre after the hour of halfpast nine in
the evening unless either -
(a)
he has previously engaged or paid for a seat in that theatre for the
performance or entertainment then in progress or about to commence, or
(b)
he is employed in that theatre or has business with a person so employed.”
8. Subsection
(2) provides that if anyone is admitted to a theatre in contravention of
subsection (1) the holder of the theatre licence shall be guilty of an offence.
(6)
“(1) The
provisions of this Act in relation to prohibited hours shall not apply to a
theatre.
(2) In
this section the expression ‘permitted time’ means a period
beginning half an hour before the commencement of a performance in the theatre
in respect of which the expression is used and ending half an hour after the
termination of such performance.”
10. Subsection
(3) provides not only for the times at which but also for the persons to whom
and the parts of the theatre in which it shall not be lawful to sell or expose
for sale any intoxicating liquor. Subsection (4) makes breach of this provision
an offence.
11. The
downstairs theatre was visited on three occasions in 1994 by Garda Officers on
nights when it is said by the defendant that late night concerts were taking
place on the premises. On each occasion music was being played and there were a
large number of patrons apparently dancing
(7)
or
moving individually in time to the music, as well as a smaller number drinking
intoxicating liquor at either of two bars on the premises. The evidence on
behalf of the prosecution was to the effect that recorded music was being
played whereas the evidence on behalf of the defendant was to the effect that
live music was being played other than during intervals when recorded music
would have been played. The visits were all after 9.30 p.m.
12. Prosecutions
were brought against the defendant on the following bases:
(1) That
as there were no seats, it was a breach of s. 20 of the Act to allow persons to
enter after 9.30 p.m.;
(2) as
there was no performance on the evenings in question, there were no permitted
hours and so breaches s. 21 of the Act; and
(3) as
some of those entering the premises had not prepaid for their
(8)
tickets
there were breaches of both sections 20 and 21 of the Act.
13. The
prosecutions having been dismissed, the prosecutor has appealed by way of case
stated. The questions which arise for determination are as follows:
(1) Whether
the District Judge was correct in law in determining that what was occurring
during the inspection by members of An Garda Síochána about which
evidence had been given before him amounted to a performance within the meaning
of s. 20(1) of the Act of 1927.
(2) If
the answer to (1) is no, whether he was correct in law in finding that the
playing of live music of the type described by one of the musical groups
mentioned in evidence amounted to a performance within the meaning of s. 20(1)
of the Act of 1927.
(3) If
the answer to (2) is yes, whether he was correct in law in finding that there
was sufficient evidence before him that the intoxicating
(9)
liquor
which had been sold or exposed for sale at the time of the inspections by the
members of An Garda Síochána referred to in evidence, was sold or
exposed for sale in a period beginning half an hour before the commencement of
a performance in the theatre in question, or in the period ending half an hour
after termination of such performance
(“the
permitted time”).
(4) Whether
he was correct in law in interpreting the word
“seat”
as
including a place for standing, it being the undisputed evidence that there
were no seats available for patrons at the premises of the accused on the
occasions in question.
(5) If
the answer to (4) above is yes, whether he was correct in law in holding that
the patrons who were admitted to the theatre on the occasions in question after
9.30 in the evening, having purchased their tickets at the kiosk across the
lane from the entry to the
(10)
theatre,
had
“previously
engaged or paid for a seat”
within
the meaning of s. 20(1)(a) of the Act of 1927.
14. To
answer question 1, it is helpful first to point out that
“theatre”
is
defined by the Act of 1927. Even though words are defined in statutes and other
documents, there seems very often to be a tendency to give such words their
ordinary meaning. That is apparent in the present case. The defendant has a
licence to sell intoxicating liquor because his premises may be used for public
entertainment whether provided by him or not. It should not be assumed that it
will be a performance as in a theatre proper. S. 20 itself recognises this
distinction because it refers to
“performance
or entertainment”.
On
the other hand, s. 21 does not in the sense that the word
“entertainment”
is
not used in that section.
15. It
is clear that both ss. 20 and 21 were intended to control the sale of
intoxicating liquor in premises which were outside the mainstream
(11)
of
on-licences and off-licences. In practice, it purported to do so by assuming
that such premises provided performances, but why the word
“entertainment”
is
used in s. 20 is unclear.
16. These
aims were addressed by s. 21. Subsection (3) which is particularly relevant is
as follows:-
“(3)
It shall not be lawful to sell or expose for sale by retail any intoxicating
liquor in any theatre -
(a) at
any time other than during a permitted time, or
(b) to
any person other than persons who either -
(i)
are then employed in the theatre, or
(ii) have
engaged or paid for seats in the theatre for the performance taking or which
took place during the permitted time or either of the permitted times then
current, or
(c) in
any part of the theatre which is then accessible to persons other than those
persons to whom intoxicating liquor may then be sold in such theatre.”
(12)
17. The
public attending the premises who may be served with intoxicating liquor are
set out in subsection (3)(b)(ii). It is to be noted that they must attend a
performance. I do not understand the reference to
“the
permitted time or either of the permitted times then current”,
since
“
permitted
time”
is
defined as being a period. Further, since the singular includes the plural, it
matters not whether the performance is construed in the singular by reference
to the entire entertainment or in the plural as reference for example to
separate acts separated by intervals. Nevertheless, if a member of the public
does not buy a seat, he cannot on a literal interpretation be served at all,
whether he intended to attend a performance or an entertainment.
18. Nevertheless,
these places of entertainment have licences to serve intoxicating liquor and
the sections cannot be construed as an implied revocation of such licences
unless the audience is provided with individual
(13)
seats
and an entertainment is provided for them in the form of a performance.
19. There
can be little doubt but that the limitation placed by ss. 20 and 21 on theatre
licences was to prevent a loophole in the law relating to intoxicating liquor
licences. It was intended to allow intoxicating liquor to be served only to
those who
bona
fide
attended the premises so licensed for the purpose of the entertainment. Those
who decided to purchase seats for the performance or entertainment after 9.30
p.m. were presumed to be doing so not for the purpose of the entertainment
being provided, but rather to continue consumption of intoxicating liquor.
20. Since
there is doubt as to the literal construction of the sections, use of the
mischief rule would allow
bona
fide
persons to be served even though no seats are provided. This however, does not
explain the
(14)
meaning
of the word
“entertainment”
in
s. 20. While it might perhaps mean that the audience provided its own
entertainment in contrast to performance when it was provided for them, this
would mean the inclusion of the word in s. 21(3)(b)(ii) which is something
which a court should do only as a last resort.
21. This
latter problem is one which only the Oireachtas can solve. At present, there is
uncertainty. The sections are penal sections in that they provide a criminal
sanction. Accordingly, before a criminal sanction can be applied the defendant
is entitled to know by clear and unambiguous language that such sanction will
be applied in specified circumstances. There being a doubt as to those
circumstances it follows that the defendant cannot commit an offence merely
because there are no seats in its premises.
(15)
22. The
remaining matter arising on the questions contained in the case stated relates
to the legality of selling tickets after 9.30 p.m. at a kiosk which is not part
of the theatre premises. It appears from the case stated that similar kiosks
are used in other parts of the city of Dublin by well-known theatres without
complaint from the garda authorities in those areas.
23. I
would answer the questions as follows:
(1) Performance
as used in s. 20 of the Act relates to entertainment provided by the management
of the premises and for which the public has paid for admission. The playing
of recorded music solely for the purpose of indicating an interval between
different parts of the entertainment would not be so regarded.
(2) Live
music played by an advertised act being the purpose for which
(16)
the
audience has paid its entrance money would be performance or entertainment
within the meaning of s. 20 of the Act of 1927.
(3) The
answer to this question will depend upon the evidence as to the times of the
performances or entertainment on the nights in question.
(4) Yes.
The word
“seat”
should
be interpreted as including a place for standing. The two sections should be
interpreted on the basis that they were dealing not only with theatres but also
with other places of public entertainment which might be organised on a
slightly different basis.
(5) Yes.
They had paid their entrance money before they entered the theatre. This
provision is intended to bar only those whose purpose is to continue the
consumption of intoxicating liquor.
(17)
24. In
the result, the appeal will be allowed.
© 1998 Irish Supreme Court
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