ADJOURNMENT An objection to the licence of Ted’s public house in Achill has been adjourned until September.
Legal arguments over garda objections to the renewal of a publican’s licence on Achill Island could end up before the High Court.
Gardaí are objecting to the renewal of the licence for Ted’s Lavelle’s bar in Cashel for alleged breaches of Covid-19 regulations but the case has been held up on legal argument over whether the required notice of the objection was served on the licencee, Joseph Fadian.
At Achill District Court on Thursday last, Judge Fiona Lydon heard lengthy submissions from barristers for both Mr Fadian and the State.
After rising to consider the submissions, Judge Lydon adjourned the matter to the September sitting of Achill District Court. She said that is to allow time to examine if there is recent case law pertaining to the case that can assist her but that if there is not, she said she will consider sending the case to the High Court to rule on what discretion she can exercise in the case.
At the heart of the case is the issue of 21 days notice before the annual licensing court that Mr Fadian is required to receive for such an objection. He was served on September 2, 2020 and the matter first came before the court eight days later, September 10, the day of the annual licensing court in Achill.
Diarmuid Connolly, counsel for the State, instructed by Vincent Deane, State Solicitor for Mayo, argued that as a full hearing did not take place on September 10, the requirement for 21 days notice had not been breached and that the case was properly before the court.
He said gardaí had to be allowed object on the day and Mr Fadian’s rights were not interfered with if the case was adjourned to a latter sitting, after the 21 day period, which he says is what happened.
He said the legal requirement for notice to be served 21 days before the annual licensing court contained a caveat – ‘or other sitting of the court’, arguing that this allowed a case be adjourned from the annual licensing court and then it would become compliant with the 21 days requirement.
He said such ‘an abridgement of time’ was allowed in such circumstances, referencing legal text by Constance Cassidy, an eminent authority on such case law.
However, James Charity, counsel for Mr Fadian, instructed by Pat Moran, solicitor, said that the 21 days was ‘mandatory’ and not discretionary and that the eight days notice by the gardaí meant the statutory provisions were not met.
He read into the court a submission on the case made by Constance Cassidy. Ms Cassidy stated that it was her ‘firm view’ that the 21 days notice is ‘mandatory’. She did not concur with the State’s view that the caveat cited by Mr Connolly allows the case to proceed and she said the objection should be dismissed.
Judge Lydon said it was a ‘serious issue of law which requires further clarification’ and wishes to establish if she has any discretion she can exercise.
Last September, Inspector Denis Harrington told Judge Lydon that gardaí were objecting to the renewal of the licence of the gastropub for what he said were ‘ongoing breaches’ of the Covid-19 legislation brought in for the reopening of restaurants and pubs that serve food on July 1, 2020.
He said the State ‘doesn’t take lightly an application to remove a man’s livelihood’ but they wanted compliance with Covid regulations.
He said Mr Fadian had ‘constantly ignored’ advice from local gardaí and the application was a ‘last resort’.
Mr Fadian’s then defending solicitor, the late Rory O’Connor, said in September that his client felt he was compliant and there was a ‘difference of opinion’ with gardaí on this.
He flagged the issue with the 21 days notice, saying it was not complied with and that the gardaí’s application was flawed as a consequence.
He added that the precise regulations were evolving regularly and that the government ministers who announced them were not fully clear about them.
The case was adjourned to September 9 next.