DEC-S2003-019 - Full Case Report

Mr Kieron Collins (Represented by Mr Martin Collins, Pavee Point) V Drogheda Lodge Pub (represented by Mason Hayes & Curran, Solicitors)

Mr Collins referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.

2. Dispute
This dispute concerns a claim by Kieron Collins that he was discriminated against by the respondent, contrary to the Equal Status Act 2000, on the grounds that he is a member of the Traveller Community in that on 23/6/01 he was denied service in the respondent's premises. The respondent does not deny that service was not provided, but that it was on grounds other than the complainant's membership of the Traveller Community.

3. Summary of the Complainant's case
Mr Collins was in company and had been served with intoxicating liquor by the respondent. These previous drinks had been ordered by others in his company. When he placed an order himself he was refused. Mr Collins alleged that this was because he is a member of the Traveller community.

4. Summary of the Respondent's Case
The respondent agrees that Mr Collins was refused service but states that this is because the order was for drinks intended for another group who had just entered and were considered to be intoxicated. The respondent states that both Sections 15 (1) and 15 (2) provide exemptions for their treatment of the complainant.

5. Evidence of the Parties
Complainant's evidence
Mr Kieron Collins, complainant

• Mr Collins considers himself a member of the Traveller Community
• When he arrived at the Drogheda Lodge on 23/6/2001 he was in the company of John and Michael Collins. All three sat at the bar and the first two rounds of three pints were ordered by the complainant's companions.
• The third order, made by the complainant to Joe Finnegan, was the same as first two.
• There were four other persons in the bar known to the complainant. One of these approached him at the bar.
• When Mr Collins ordered, Mr Finnegan said he couldn't serve him and he could not give a reason.
• The member of the group who approached Mr Collins ordered his own drink and was also refused.
• Mr Collins was in the Drogheda Lodge before, perhaps three to four times over a fourteen year period.
• Mr Collins was very embarrassed after the refusal. Other customers approached him to sign a page supporting his position, and took him over to others for their signatures.
• John Collins had interceded on behalf of both groups who had been refused. Kieron Collins did not order again.
• Mr. Kieron Collins remained in the pub for approximately 10 to 15 minutes after the refusal.
• Mr Collins said that the reason he had been served the first two drinks in the company of his friends was because Mr Finnegan was not there when they were ordered.

John Collins, Complainant's companion
Mr John Collins was not available for cross-examination, and his evidence, presented at the first hearing, has been considered only where it is uncontested.

• Mr John Collins had been drinking in the Drogheda Lodge for about four to five years prior to this incident.
• On 23/6/01 he approached Mr Finnegan to discuss the refusal of the group of four people, after he had been informed by, one of the group, of the groups participation in a christening that day.

Mr Patrick McDonagh Junior

• On 23/6/01 Mr McDonagh arrived at the pub with his wife after receiving a phone call from his father. They had been to a christening in Dundalk earlier that day.
• His father was already there and already had a drink.
• He was interrupted while ordering a drink and told that he would not be served. He thought they may have misheard him so he ordered again and was again refused.
• John Collins had originally been at the table with his father but after the refusal he went to speak to the barman.
• This was Mr McDonagh's first time in the pub.
• Mr McDonagh is a non-drinker and his wife had not been drinking that day.

Respondent's Evidence
Mr Mark O'Riordan

• Mark O'Riordan had seen the complainant in the bar once or twice over a three to four month period.
• On 23/6/01 he overheard Mr Finnegan's refusal, and explained that Mr Finnegan indicated that they could not serve the group of four people as they were drunk.
• He stated that none of the four addressed the bar or ordered a drink.
• Mr. Kieron Collins ordered four drinks and there were only three in his group.
• Mark O'Riordan then saw John Collins talking to Joe Finnegan about the situation.
• In his opinion the four who entered were drunk. He could tell this by the way they were walking and said they had the look of people who were drunk.
• Mr. Kieron Collins got very aggressive on being refused. He asked Joe if he knew who he was. Kieron left to go to the table with the group of four. John, who was much calmer, then spoke to Joe. The complainant was barred because of his behaviour after the refusal.
• Mark O'Riordan stated that one of the group of four knocked over a table as the rose to leave. They had apparently been at a Christening from 1pm to 9pm.
• Kieron Collins left and returned with a sheet of paper and went around asking people to sign the paper. He left after about 10 minutes.

Mr Joseph Finnegan

• Joe Finnegan watched the group of four arrive. In his opinion they were drunk, and the two ladies were unstable. Initially two ladies and one gentleman arrived and sat down. Joe Finnegan could not be certain if the second gentleman, who arrived just after the three, was drunk.
• Kieron Collins ordered for the group. When he was refused, he got very aggressive and stood on a barstool raising himself up, he leaned over the bar and asked Joe Finnegan if he knew who he was.
• When speaking to Mr John Collins at the back door, he told him that the original group of three were okay but that he could not serve the others who seemed to have a lot of drink taken. At this point, Kieron Collins was "going around like a bull".
• Mr Finnegan heard at least one customer refuse to sign the page for Kieron Collins. At this point in the hearing Joe Finnegan became quite distracted and was having difficulty continuing. The complainant was laughing at him in a derogatory manner as he presented his evidence. The complainant was asked to desist.
• A few minutes after the refusal, Joe Finnegan tried to clean up where the women remained seated, since the table had been knocked over, and asked them to move their feet. They said they would move when they were ready.
• A record of the incident was taken for the incident log.
• Because of Kieron Collins's reaction to the refusal, Joe Finnegan took the decision to bar him in the future.
• Mr Finnegan listed the courses he had attended. Copies of certificates were submitted by post after the hearing.
• Joe Finnegan stated that tables are knocked over and drink is spilled several times a day. However these people were rude and this rudeness was because they were drunk.
• He did not know why Kieron Collins would have asked if he knew who he was. If he was trying to intimidate him he was doing a good job of it.

Sean O'Riordan, Director

• Mr O'Riordan stated that their 'right to refuse' policy had been drawn up over two years and was amended occasionally.
• The Drogheda Lodge does not operate any policies that would be considered discriminatory towards Travellers.
• The Drogheda Lodge is situated in a working class area and its customer base is largely made up of men with a very low percentage of Travellers.
• There were no security personnel at the Drogheda Lodge door to see the group of four arrive. Two security men were called in from the adjoining bar and they arrived as Kieron Collins was raging and before the other group left.
• There are three to four hundred people barred in total with approximately 30 to forty of these Travellers.
• The fact that people are barred is spread among staff verbally. Normally after a barring there is a cooling-off period and they are allowed to return afterwards.

Garda Sergeant Liam Monaghan

• Sergeant Monaghan has been dealing with the license applications in the Finglas area for some time.
• He was not involved in the incident on 23/6/2001.
• The complainant has not adversely come to his attention.
• There were previous incidents at the Drogheda Lodge involving both Travellers and non-Travellers.
• Sergeant Monaghan was not aware of the general profile of people who frequent the Drogheda Lodge but he believes that they admit and serve Travellers.
• There were some very violent incidents approximately three years ago where there were injuries and two Travellers charged.
• Traveller violence is more extreme.
• Sergeant Monaghan had never been called out where Travellers claimed they were being treated unfairly or where Travellers were allegedly causing trouble.

Elizabeth O'Riordan, Managing Director

• Ms O'Riordan described the difficulties facing a business such as theirs.

6. Matters for consideration
The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3 (1)(a) and 3 (2)(i) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act. Section 3 (1)(a) provides that discrimination shall be taken to occur where: "On any of the grounds specified.......a person is treated less favourably than another person is, has been or would be treated" Section 3 (2) provides that: "As between any two persons, the discriminatory grounds ... are ...
(i) that one is a member of the Traveller community and the other is not." Section 5 (1) states that "a person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public ". Section 15(1) of the Equal Status Act 2000 provides that "nothing in the Act prohibiting discrimination, shall be construed as requiring a person to provide services to another person in circumstances which would lead a reasonable individual, having the responsibility, knowledge and experience of the person, to the belief, on grounds other than discriminatory grounds, that the provision of services to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the services are sought". Section 15(2) of the Equal Status Act 2000 states that "Action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the Licensing Acts, 1833 to 1999, shall not constitute discrimination".
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Applicability of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment a non-Traveller received, or would have received, in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.

7. Conclusions of the Equality Officer
Applicability of the discriminatory ground
Both parties to this complaint agree that the complainant is a member of the Traveller Community.
Evidence of specific treatment
Both parties agree that the complainant was refused service on the date in question.
Evidence of less favourable treatment.
Mr Collins stated that he ordered three pints as had his companions before him. Mr Finnegan stated that Mr Collins ordered drinks for the group who had just arrived; he also stated that in his opinion this group had evidence of alcohol consumption and he had arrived at this opinion while watching three of the four enter the pub. Mr Collins stated that members of the group who entered were related to him, and that he knew them well. The manner of presentation of this evidence suggested that he is on good terms with them. Mr Collins stated that he only spoke to the driver of the group when he approached the bar. Later, however, Mr. Collins stated that he did go over to speak to the group after the refusal.
During the time after the refusal, negotiations were underway between John Collins and Joe Finnegan about serving the group who had just arrived. It seems unlikely to me that such negotiations were entered into on behalf of that group if in fact John Collins' own group had been refused. This supports the contention that the order related to the group of four who arrived.
I find that the respondent's version is more compelling and that on the balance of
probabilities Kieron Collins ordered a round of drinks for this group after they arrived, and was refused.
The complainant's representative suggested that when the group arrived there were too many Travellers in the pub for the comfort of the respondent. In other words it is suggested that a quota system was in operation. The respondent presented a Garda witness who described previous difficulties with Traveller violence in the area, and in whose opinion Traveller violence is more extreme. While it is possible that a publican might decide that one way around this would be to restrict the number of Travellers in their pub at any one time, this evidence does not amount to support for the assertion that a quota system was being operated by the respondent in this instance. No evidence was adduced by the complainant to support this assertion.
It is now necessary to consider if it was appropriate to refuse to serve drinks that were ultimately intended for the group of four people. Section 15 (2) of the Equal Status Act, 2000 provides an exemption for a licensee if their action(s) are in good faith and for the sole purpose of complying with the Licensing Acts, 1833 to 1999. Mr Finnegan stated that he had watched three out of the four members of the group enter and had concluded that they were intoxicated. Mark O'Riordan agreed with this assessment. The issue of permitting drunkenness and Section 13 of the Licensing Act 1872 was raised in the respondent's written legal submission and copied in advance of the hearing to the complainant. Section 13 of the Licensing Act, 1872 (as amended) is as follows:
If any licensed person permits drunkenness or any violent, quarrelsome, or riotous conduct to take place on his premises, or sells any intoxicating liquor to any drunken person, he shall be liable to a penalty not exceeding £200.
I have identified the following relevant caselaw1. In Scatchard v Johnson (1888)2 it was held that the publican was rightly convicted of selling liquor to a drunken person notwithstanding that the liquor had been bought and paid for by a sober companion of such a person. Although that case was not cited in R (M'Hugh) v M'Nulty (1903)3 the Recorder of Londonderry reached the same conclusion and stated that otherwise drunken people could use a sober person to make the purchase for them and that would mean the end of the efficacy of Section 13. In Hope v Warburton [1892]4 it was made clear that a publican would be permitting drunkenness if he allowed the drunken person to remain on the premises and that it would not be necessary to show that intoxicating liquor had been supplied to arrive at this conclusion. These cases clearly show that a publican who serves a sober person, who in turn is making the purchase for a drunken person, or a publican who permits a drunken person to remain on the premises, is not complying with the Licensing Acts, 1833 to 1999.
The respondent in a legal submission suggested that the decision as to whether or not an action was taken in good faith is a subjective one. In Decision DEC-S2002-061-0705 the Equality Officer considered the good faith issue as follows;
"Section 15(2) of the Equal Status Act 2000 requires that action is taken in good faith for the sole purpose of ensuring compliance with the Licensing Acts. In relation to the Equal Status Act 2000, I am satisfied that while the good faith test is primarily subjective it is qualified with the more objective tests of sole purpose and ensuring compliance with the Licensing Acts. It is not necessary that a respondent act reasonably to be acting in good faith. It is necessary that he is acting honestly which must, in the context of this Act, mean without discriminatory motive. It is also necessary in terms of section 15 (2) of the Equal Status Act that his actions be for the sole purpose of ensuring compliance with the Licensing Acts."
1 See Michael McGrath, Liquor Licensing Law, Butterworth (Ireland) 2001, section 485
2 Scatchard v Johnson (1888) 52 JP 389, 4 TLR 462
3 R (M'Hugh) v M'Nulty (1903) 37 ILTR 138
4 Hope v Warburton [1892] 2 QB 134
5 Katherine Blake & Ors V Cleere's Public House Kilkenny
The group who entered the respondent's premises had been at a christening that afternoon and it was acknowledged that three of the four are moderate drinkers. While these people may not have considered themselves to be drunk, it is possible that there was evidence in their demeanor that would lead a person of Mr Finnegan's experience to consider them to be intoxicated. Having arrived at that decision Mr Finnegan would have had no option but to refuse service to the group on the basis of the Licensing Acts, 1833 to 1999 and the interpreting case-law mentioned above. I am satisfied that Mr Finnegan took his decision in good faith and that the sole purpose of the refusal was to achieve compliance with the Licensing Acts, 1833 to 1999.
Mr. Collins stated that after the refusal he waited several minutes. He said that while he waited other customers came to sign his paper in solidarity against his refusal.6 However, Mr. Collins said that he drank in the pub only 3 or four times in 14 years so it may be unlikely that he was well known to the customers. In any event I find it unlikely that these customers all came to him unbidden and on the balance of probabilities I find that the respondent's version is more compelling when they say that he moved among customers requesting their signatures.
Mr Collins ordered a round of drinks and I have already found that this order was for a group other than this own. Members of this group were assessed as being intoxicated and the refusal was based on this. Mr Collins did not order again so there was no further refusal of service to him on the night. The respondent stated that Mr Collins responded to Mr Finnegan by raising himself up on the crossbar of the legs of a bar stool and asking if he knew who he was, in an intimidating manner. Mr Collins denies this. Mr Collins then moved among the other customers asking them to support his cause by signing a paper. I have already found above that this is the more likely version relating to the paper and it is further supported by the fact that the bar staff felt it necessary to call security guards from another part of the premises. The respondent maintained that this moving among other customers for their signatures was causing a disturbance to customers, and

6 This paper, which was submitted in evidence, is an untitled list of names which gives no indication of why or when they were taken. that they heard at least one customer refuse. Since it was difficult to ascertain what happened with the benefit of all the evidence provided to me, it seems likely that some customers who were present during the incident might not have been clear about what had happened and would therefore have preferred not to sign a paper relating to it. The respondent, in fact, described Mr Collins' behaviour after the refusal as "going around like a bull". If the respondent felt that causing a disturbance in this manner couldreasonably be construed as amounting to disorderly conduct, then in accordance with section 15 (1) of the Equal Status Act, 2000 they would be entitled to refuse service, and the complainant was barred on this basis. This of course does not relate to the initial refusal discussed above and only arises because of what happened after the refusal. Mr Patrick McDonagh Junior, the driver of the group who arrived while Mr Collins was drinking, gave evidence as to what happened on the day. While I have no doubt that his description of events is how he recalls the incident, his version is so different from the evidence given by both parties to the complaint that I cannot rely on it. Mr McDonagh stated that when he arrived with his wife the other couple were already there and drinking. Both parties to the complaint state that the group entered together.
I have found that the initial refusal was taken in good faith for the sole purpose of ensuring compliance with the Liquor Licensing Acts 1833 to 1999, and that the subsequent barring was as a result of behaviour which may have been considered as amounting to disorderly conduct. Mr Collins has not adduced evidence that would lead one to the conclusion that these actions constituted less favourable treatment of him because he is a member of the Traveller Community. I am satisfied that a non-Traveller attempting to purchase intoxicating liquor for people deemed to be intoxicated would be treated in a similar manner. Therefore I am satisfied that Mr Collins has not established a prima facie case of discrimination on the Traveller Ground.
I find that Mr Kieron Collins has failed to establish a prima facie case of discrimination on the grounds of his membership of the Traveller Community.

8. Decision DEC-S2003-019
I find that the complainant was not discriminated against on the Traveller ground by the respondent in accordance with Section 3 of the Equal Status Act, 2000 and in terms of section 5 of that Act, in respect of the incident on 23/6/01.

Bernadette Treanor,
Equality Officer
27 March 2003