DEC-S2003-020 Full Case Report

Mr David Coulton, Dublin V Molloy's Off License, Tallaght, Dublin (Represented by Gary Compton BL, acting on instructions from Matheson Ormsby Prentice Solicitors, Dublin)

Mr Coulton 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 Mr Coulton that he was discriminated against by the respondent, contrary to the Equal Status Act 2000, on the grounds of his age in that on 24/6/01 he was denied the supply of goods in the respondent's premises. The respondent does not deny that goods were not supplied, but states that the refusal was based on a policy of not selling spirits to people under 21 in order to ensure compliance with the Licensing Acts, 1833 to 1999.

3. Summary of the Complainant's case
On 24/6/01 Mr Coulton attempted to purchase a small bottle of dark rum intended as a present for his grandfather. Although his ID was accepted he was refused the rum and was told that he could purchase beer but not spirits. Spirits are only sold by the respondent to those over 21 years of age. Mr Coulton alleges that this constitutes discrimination on the age ground in accordance with the Equal Status Act, 2000.

4. Summary of the Respondent's Case
The respondent agrees that the refusal amounts to less favourable treatment of the complainant on the grounds of his age, but states that since the policy of not selling spirits to people under the age of 21 is to ensure compliance with the Licensing Acts, 1833 to 1999, Section 15(2) of the Equal Status Act, 2000, deems that this refusal does not constitute discrimination.

5. Evidence of the Parties
5.1. Complainant's Evidence
David Coulton, Complainant

• On 24/6/01, Mr Coulton was 19 years of age.
• On 24/6/01 he attempted to purchase a naggin of dark rum in the respondent's premises. He had been requested to do so by his Aunt and Mother for his grandfather.
• He was asked for evidence of his identity and age and he produced his passport. He was told by the shop assistant that he could purchase beer but not spirits.
• His cousin Mark Fay was dispatched to the off-licence to purchase the rum. While he is two years older than David he was under 21 on 24/6/01 but he was not asked for ID and he was served the rum without any difficulty.
• Later that day David, Mark and David's Aunt Ms Fay went to the off-license to discuss the refusal and ask why Mark had been served and David had not.

Ms Fay, Complainant's Aunt

• Ms Fay had asked David to get the rum. When he returned without it she asked her son Mark to go to the off-license, to bring his ID and get the rum. Mark was served the rum and was not asked for ID. When David realised that Mark had been served he was very angry. The family discussed the matter for some time.
• Ms Fay went to the off-license with David to discuss the matter. She met Ms Martina Foster, deputy manager, who explained the store's policy. Ms Foster undertook to bring the matter to the attention of the store manager, Mr David Lawton.
• Mr Lawton, Tallaght Off-license manager spoke with the family the next day and again the matter was discussed without being resolved.
• Subsequently a meeting was arranged at the company's head office to discuss the matter again. Mr Lawton, off-license manager, and Mr Kelly, company director, were present.
• During the course of this discussion the complainant's party were told that the company had obtained legal advice that this policy was okay. They were again told that anyone under the set age limit of 21 years of age would not be served spirits, although they would be able to purchase beer.
• Since Mark had been served the rum the company's policy was not being applied across the board.

Mark Fay, Complainant's Cousin

• Mr Fay was asked to get the rum and when he returned with it he was told that David had been refused.
• Mr Fay felt that this was unfair since he would be able to purchase alcohol in the respondent's public house.
• He went with the complainant and Ms Fay when they met with the company in their head-office. He asked if David would be served in the pub and he was told that he would be.
• Mr Fay saw an order form at the respondent's office. He asked if an order would be delivered if the form was filled in and his credit card details completed. He was told that it would.
• Mr Fay mentioned that he had spent €193 in Molloys before Christmas 2002,without being asked for ID and he was still not 23.
• He explained that the incident had been very embarrassing for David and that he was still the subject of a lot of teasing because of it.

Closing arguments for Complainant

• In response to a question from the complainant's party the respondent's Counsel confirmed that the legal age in the Licensing Acts is 18.
• When parents do not have the right to refuse children in the 18 to 21 age bracket, the complainant's party wondered what right had the respondent to do so.
• As there was no notice in the store about the policy, there was nothing to save the complainant, or anyone else, from embarrassment by asking for spirits. The public cannot be expected to be aware of an unwritten company policy.
• The respondent should be lobbying the relevant representative groups to have the law changed rather than enforcing a policy such as this. This policy is not the law.
• Ms Fay pointed out that their children had been raised to abide by the law, but when those children went into the respondent's store they could be told that the law does not apply to them.
• To the respondent incidents such as this end with the refusal. However, Mr Coulton has been at the receiving end of jibes ever since.
• The complainant's party accepted that underage drinking is a problem but pointed out that it is not their problem. Both David and Mark are of age.
• Why was Mark served without difficulty when he is only two years older?
• This treatment of Mr Coulton amounts to less favourable treatment.

5.2. Respondent's Evidence
Ms Joanne Hoare, Shop Assistant

• Ms Hoare explained that anyone under 21 was not served spirits and that anyone under 23 was asked for ID. Ms Hoare no longer works for the respondent company.
• Ms Hoare said that generally there had been more refusals for under-18s than under 21s when she had worked there but there were still a lot for under-21s.
• She always looked for ID.
• On 24/6/01 Mr Coulton, whom she knew from the district, ordered and she asked for ID. On seeing his ID she told him that she could not serve him spirits. He bought cigarettes and then left the store.
• Ms Hoare had done the in-house training on the Licensing Acts, and although this training had not included a reference to the Equal Status Act, 2000, the Act had been brought to her attention at college.

Ms Martina Foster, Assistant Manager of off-license

• When Mr Coulton, his Mother and Aunt has come to the store they were upset but she explained the policy of not serving spirits to anyone under 21. She explained that it was designed to prevent underage drinking, alcohol abuse and to prevent 'hand-overs'.
• After explaining this however the conversation went around in circles and she undertook to raise the matter with the Manager.
• The over-21 policy is applied across the company, in all off-licenses.
• In relation to Mark Fay being served, she said that he was not asked for ID as there had not been a doubt as to his age and that there was no concern that he might be involved in a 'hand-over'.
• The ID age-limit was raised from 21 to 23 in or around May 2002.

Mr David Lawton, off-license manager

• When Mr Lawton met with the complainant, his Aunt and her husband, and Mark Fay he explained the policy and why it had been adopted.
• Mr Lawton mentioned the huge population in the Tallaght area and described the problem of hand-overs. This is where alcohol is purchased by someone who is apparently entitled to do so and then handed over to someone who is underage. This is particularly a problem in Summer.
• There is no notice in the store warning the public that refusals will occur where the customer is under-21 and has ordered spirits.
• Where a hand-over takes place in clear view, Mr Lawton said that the response would be to identify the person who had purchased the alcohol and they would be refused in the future. Mr Lawton pointed out that a hand-over in clear view is very
• 
  In addition, both he and the assistant manager occasionally walk around the shop and around the vicinity of the shop to identify any underage people in the area. If some are identified the manager/deputy manager would first try to stop the inappropriate sale and watch until the person or group had left the area. Most people travel by car and are not inclined to walk the distance to get out of sight for a hand-over.
• Mr Lawton said that a handover of beer raises the same compliance issues as a hand-over of spirits.
• He has attended seminars run by the company and these address the Licensing Acts, 1833 to 1999 and the Equal Status Act, 2000.
• Mr Lawton described that it is considered more likely that teenagers will buy spirits and put it into a half full bottle of coke which would cause no suspicion on the part of the Gardaí.

Mr Pat Kelly, Company Director

• Mr Kelly has been with the company for 22 years and is a director.
• The company has 11 off-licenses.
• The restriction of the sale of spirits to over-21s is applied in them all.
• The policy relating to the sale of spirits has been developed over the years. The company has always been aware of hand-overs. The Intoxicating Liquor Act 2000 has made significant changes to the responsibilities of a licensee. Under the Act the only defence is an age card even though there has not been a great take-up of these. Some teenagers use their brothers or sisters passports. In the Tallaght store there are only four full-time staff and these are supported across the extensive opening hours by part-time staff. It is necessary to ensure that even the part-time staff are aware of the issues and that they have guidelines. Thus the policy has developed over the years. The company intends to stay in business and to do that they must ensure that people other than the manager know what to do. Junior staff need clear guidelines since they do not have experience equivalent to that of the senior permanent staff.
• The company has been the subject of an unsuccessful prosecution relating to under-age drinking.
• Mr Kelly said he has attended the same seminars as Mr Lawton. Training is arranged centrally with follow up training at branch level.
• Mr Kelly cited some cases of underage drinking and newspaper reports were submitted as part of a submission document.
• He explained that teenagers preferred the quick kick that spirits can provide in comparison with beers. He said that there was a community issue involved.
• When asked if the policy had been reviewed in the light of the Equal Status Act, 2000, Mr Kelly said that it had. However there was a dilemma for them in that a question remained as to whether an 18 year old should be sold a crate of vodka.
• Mr Kelly agreed that the Licensing Acts, 1833 to 1999 required off-license staff to keep an eye on the vicinity of the store as well as the store itself.
• The company keeps a record of the number of refusals by entering a sale of the value of 1 cent into the till system each time an age check is made. While this allows them to track back to the time of a transaction, the only way to ensure that a check of ID was actually made is by checking the security video.
• At the meeting on 16/7/01 the group went through all of the points made above, including the procedures necessary for the assistance of young staff. The issue of a 'mixed basket' of purchases was also mentioned. This is where a young person orders several bottles or cans of various types of alcohols. This is often seen as possibly leading to a 'hand-over'.
• Although the meeting went round in circles, afterwards the company offered to serve Mr Coulton if he could provide a letter from a parent or guardian showing that they were aware of the situation.
• Mr Kelly admitted that there are corporate order forms available. The company sends out about 10,000 brochures every year. These are aimed at corporate customers such as a local authority that might require alcohol for a function off-site. These deliveries are normally undertaken by the manager of the relevant store.
• There is a company web-site which can accept orders and accounts for a very small amount of trade (amounts quoted). These web-site orders are normally from abroad for delivery here. These are delivered by SDS. Sometimes the orders are for delivery in the UK, and looking behind such unusual transactions might uncover a stolen credit card.

Ms Michelle Fogarty, Company HR Manager.

• Ms Fogarty is responsible for recruitment, selection and training. She has some responsibility for ensuring that staff are acting in accordance with the relevant license and that staff are applying the company's rules fairly.
• She referred to a document included in their submission. This document is entitled "Serving Procedures in relation to underage drinking" and it is used during training. Staff must sign a copy of the document after training to show that the company has indicated the requirements to them. This document has been updated and Ms Fogarty offered to produce a copy of the new version showing the up-to date position. 1
• She referred to a second document entitled "Policies and Procedures" and explained that this document relates to the company's 'on' trade. She explained that this is a more controlled environment where staff can watch customers drinking and can see who the alcohol was purchased for.
• Ms Fogarty explained that the policy relating to spirits and 21 year-olds was a 'catch-all policy to ensure under-age people were not served. It is purely a protective mechanism.
• While some 18 year olds may be very responsible, this policy may save someone's life.
• Sales assistants in this trade suffer a lot of abuse at the hands of customers.
• No code of practice has been issued to help licensees with regard to these issues.
  
  1 Copies of both versions attached at Annex 1
  
• The rule relating to not serving spirits to under-21s is an unwritten rule developed at operational level.
• In relation to why a distinction had been made between the sale of beer and spirits, she replied that the primary interest was in hard liquor because of the quick kick and because it was more likely to be shared.
• The spirits policy as it applies to under 21s is still applied.
• There is a restriction of 8 cans in relation to beer sales where appropriate. Up to that number could still technically be for personal consumption.
• The most difficult times for the company in relation to their controls was the issue of the leaving cert results in the past, but now it is the issue of the Junior Certificate results. Those nights are very testing.

Respondent's Closing Arguments

• Section 15(2) is applicable since the purpose of the policy is to ensure that there is no abuse, no underage drinking and no 'hand-overs'.
• There was a balancing of rights to be done in this case between the respondent's right to comply with the Licensing Acts, 1833 to 1999 and the complainant's rights in accordance with the Equal Status Act, 2000.
• The normal meaning of the words in a statute is the appropriate interpretation unless it leads to an absurdity. In this case good faith should be taken to be "genuine" or "honest".
• The complainant has been treated less favourably and the respondent submitted that there is no conflict between S3 and S15 of the Equal Status Act, 2000. Section 15 provides that certain activities are exempted if the terms of the section are complied with.
• The policy is intended to prevent a sale to underage people and to prevent a handover to under-age people.
• S31 of the Intoxicating Liquor Act 1988 (amended by Intoxicating Liquor Act 2000) is the main provision with which the respondent is attempting to comply.
• There is also a wider requirement with which they must comply. If an objection is raised to the renewal of their license, they must show that they are of good character and not indulging in reckless trade or behaviour.
• If an 18 year old was sold a crate of vodka without restriction or checks, it could ultimately be shown that the respondent was indulging in reckless trade and therefore not of good character. As a result the license could be lost.
• The Complainant has accepted the purpose if not the fairness of the policy.
• This policy reduces the respondent's trade.
• Counsel asked that the Equality Officer take note of the efforts made by the respondent to resolve this issue.
• Counsel suggested that an unfavourable result for the respondent in relation to the certainty in serving 18 year olds would lead to absurd situations, such as an inappropriate sale of a crate of vodka.

6. Matters for consideration
The matter referred for investigation turns upon two issues. First, 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. Second, if discrimination did occur, whether or not this is deemed not to be discrimination by virtue of Section 15(2). 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 ...
(f) subject to subsection (3), that they are of different ages (the "age ground")
Section 3(3) states: Treating a person who has not attained the age of 18 years less favourably or more favourably than another, whatever that other person's age, shall not be regarded as discrimination on the age ground.
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(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 shall 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 (in this case the age 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 someone of a different age 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
In this case the complainant claims that he was discriminated against on the basis of his age when he sought and was refused service on 24/6/01.

7.1. Prima Facie Case At the opening of the hearing, the first question was put to the complainant. He was asked what age he was at the time of the incident. He hesitated, and replied that he had been 19. After the hearing the respondent pointed out in writing that Mr Coulton ha been 18 years of age at the time, based on the evidence of age he produced. Since the complainant willingly presented evidence of his age to the tribunal, which was copied to the respondent, I cannot presume that there was any intention to mislead. I am satisfied that this statement was an error, possibly due to the manner in which the question was phrased and to nervousness in an unfamiliar situation2.
On the basis of evidence produced I am satisfied that Mr Coulton was over 18 on 24/6/01. He alleges that he was treated less favourably than others because of his age. I am satisfied that the age ground listed in Section 3(2)(f) is applicable and that Section 3(3) is not, in accordance with 6(a) above. Both parties agree that the complainant was refused service on the date in question, and this fulfills 6(b) above. In respect of 6(c) above, I shall now determine if a person of a different age would be treated more favourably. Since a person younger than Mr Coulton would be under 18 this person would be refused altogether on the basis of the Licensing Acts, 1833 to 1999 and be outside the scope of the Equal Status Act, 2000 by virtue of Section 3(3). A person over the age of 18 but under 21would, according to the respondent's policy be treated in a manner similar to Mr Coulton.3 A person over the age of 21 would, in terms of the respondent's own policy, be entitled to purchase spirits and would therefore be treated more favourably than the complainant. On the basis of a comparison with a person over the age of 21, I find that the complainant has established a prima facie case of discrimination on the age ground. In any event, the respondent conceded that the complainant had been treated less favourably because of his age.
2 The question put was "Can you tell me what age you were on the 24/6/01?"
3 The respondent, in serving Mr Coulton's cousin, had breached their own policy since Mr Fay was 20 years of age at the time. The only comment made in this regard was that they were content that he was not underage.

7.2. Respondent's rebuttal
The respondent accepted that their policy of not serving spirits to people under 21 has meant that the complainant has been less favourably treated than those over 21. Their defence is based entirely on a multi-layered interpretation of section 15(2) of the Equal Status Act, 2000. They suggest that while the treatment may constitute discrimination in terms of section 3, it is exempted by section 15(2).
It was also suggested by the respondent that section 15 (2) contains a double test to be satisfied. While the action of the respondent must be taken in good faith, it was submitted that the more important test is that the action must have been taken with the sole purpose of ensuring compliance with the Licensing Acts, 1833 to 1999. I agree with Respondent's Counsel when he asserts that the ordinary meaning of the words must be taken when assessing the meaning of a statutory provision. This is an accepted approach in Irish law and only where such an interpretation leads to ambiguity or absurdity is there a need to look further. In relation to Section 15(2) of the Equal Status Act, 2000 the meaning of the words are clear and unambiguous. The section says that "Action taken in good faith...for the sole purpose of ensuring compliance with the Licensing Acts, 1833 to 1999, shall not constitute discrimination." The section explicitly mentions what the purpose of the action must be, and also states that this must be the sole purpose of the action. It is also required that the action be taken in good faith. The legislature has included this reference to the purpose of the action and its meaning is clear. If the purpose of the action was irrelevant these words would be superfluous. 4 I am satisfied that the subsection does indeed contain two tests. In order to avail of the exemption contained in S15(2) the respondent must show that:
Compliance with the Licensing Acts, 1833 to 1999 was the sole objective behind the action taken, and 4 For recent reviews of interpretations based on the ordinary meaning of words, please see judgements issued by Denham J and McGuinness J of the Supreme Court in the case DB v Minister for Health and Children and the Hepatitis C Compensation Tribunal, No. 322/2002, issued 26/3/2003.
The action was taken in good faith.5
Two topics were mentioned in relation to the respondent's compliance, the first was S31 of the Intoxicating Liquor Act, 19886, and the second, more oblique, compliance issue was the maintenance of the company's good character in respect of license renewals. The respondent explained how the requirements of the Intoxicating Liquor Act, 1988 were amended by the Intoxicating Liquor Act 2000 in a manner that had profound effects on how they approach their off-license business. However, Section 31 1(a) and section 31(2) were not amended by the Intoxicating Liquor Act, 2000. What was amended was the type of defence that may be presented and the penalties for conviction of an offence under these sections. Section 36A was added to the Intoxicating Liquor Act, 1988 by section 13 of the Intoxicating Liquor Act, 2000. This new section provides for the mandatory temporary closure of premises on conviction of such offences. The respondent has submitted that the policy of not selling spirits to people under the age of 21 is in place to facilitate compliance with section 31 of the Intoxicating Liquor Act, 1998. They contend that people under 21 are more likely to be involved in hand-overs. They are concerned that in such instances they would be liable under S31 for permitting the delivery of liquor to an underage drinker. Therefore they have imposed a blanket ban on the sale of spirits to anyone under 21. This policy is anunwritten one, and there are no notices indicating to the public that this policy is being pursued. It is circulated verbally among staff, and is not included in the document which staff must sign to show that they have been told how the company would like them to treat certain situations.7
The respondent admitted that a hand-over of a can of beer would constitute a delivery in terms of Section 31 of Intoxicating Liquor Act 1988, in the same way as the hand-over of

5 See DEC-S2002-061-070
6 Appendix 1 contains excerpts from Intoxicating Liquor Act 1988.
7 This non-inclusion would become relevant if vicarious liability were to arise. This document is included at Annex 1. a bottle of spirits.8 However, the respondent is content to sell beer to 18 to 21 year old people. If the impact of both is the same, even though both are, by definition, intoxicating liquor, it must be concluded that there is a reason, other than the protection of their license or a pure compliance issue, behind such a distinction. The respondent states that the reason for such a distinction is that teenagers are more inclined to try to purchase spirits for both the "quick kick" and for ease of concealment. The quick kick is provided by the strength of the liquor and concealment is achieved by the purchase of a bottle of cola or other soft drink. Some of the soft drink is thrown away and the bottle topped up with spirits. This renders it more difficult for the Gardaí to detect the alcohol. A can of beer is more difficult to conceal. The argument therefore, is that a hand-over of beer is less likely to occur and therefore the ban on the sale of spirits to under-21 year olds is still for the sole purpose of compliance with the section. While all references to the spirits that are normally associated with under-age drinking and 'hand-overs' were to vodka, no reference was made as to whether the sale of dark rum, which was requested by the complainant, is likely to cause concern.

7.2.1. Examination of Respondent's Legal Submission At the hearing the respondent submitted a substantial document in support of their position. This submission contained, among other things, extracts from local newspapers covering what they consider to be relevant issues.
3 Newspaper articles dealt with the purchase of alcohol by underage persons.
1 Article dealt with the problems faced in identifying underage customers
1 Article dealt with underage drinking survey results and the new penalties
2 Articles dealt with the issues raised by the misrepresentation of an Equality Officer's decision on the family status ground, DEC-S2001-020
1 Article dealt with a decision finding against a complainant on the age ground on
8 Intoxicating liquor shall mean spirits, wine, beer, porter, cyder, perry and sweets, and any fermented, distilled, or spirituous liquor which cannot, according to any law for the time being in force, be legally sold without a licence from the [Revenue Commissioners]. Licensing Act, 1872 the basis of a technicality DEC S2001-024
1 Was a public notice advising that the consumption of alcohol in a public place in
the County of South Dublin is illegal 1 Article reported on the issues that will be addressed by the Liquor Licensing Commission in its next report, due March 2003. None of these articles support the refusal of a person over the age of 18. None of them support the contention that 18 to 21 year olds are more likely to indulge in handovers to underage drinkers9. None of them support the contention that such handovers, by people over 18, are more likely to be handovers of spirits. In short, none of them show that handovers by over-18 year olds are much more likely to be handovers of spirits than of beer such as to warrant different treatment between these two types of products.The respondent has also submitted the Report on Admission and Service in Licensed Premises, issued in December 2002 by the Commission on Liquor Licensing. This document was not supported by any verbal or written submission as to the reason for its inclusion. Subsequent to the hearing, I requested the respondent to indicate why this report and the two newspaper articles relating to DEC-S2001-020 were included in the submission. In response the respondent's representative stated that they did not intend to rely on the information in the report nor the information in the newspaper articles. However the information was submitted, and I have decided to review this report in the light of this case and to restrict my review of it to areas other than those relating to Equality infrastructure which have led to comment in the media recently. The following is, I believe, a relevant extract from the report. It discusses the trade's contention that there is a conflict between the Equal Status Act, 2000 and the Licensing Acts, 1833 to 1999. It concludes that people over the age of 18 enjoy the protection of the Equal Status Act, 2000 and that licensees' right to be certain that the customer is over 18 is not impinged by the Equal Status Act, 2000 in any way.
"According to the trade, tensions arise in certain circumstances where the exercise of these rights conflict with requirements of the liquor licensing code.

9 Those handovers mentioned related to purchases made by people underage.
For example, persons who have attained the age of 18 years enjoy the protection of the Equal Status Act and they are, therefore, entitled to seek admission and service in licensed premises. However, the liquor licensing code provides that it is an offence for a licence holder to sell or supply intoxicating liquor to a person under the age of 18 and if they do so, they risk closure under the terms of the Intoxicating Liquor Act, 1988.
Section 31(4) of the Intoxicating Liquor Act, 1988 provides that in any proceedings against a person for the sale or supply of intoxicating liquor to a person under 18 years of age, it shall be a defence for such person to prove that the person in respect of whom the charge is brought produced to him or her an age card or, if the defendant is charged with permitting another person to sell or deliver the intoxicating liquor, to prove that an age card relating to the person to whom the intoxicating liquor was sold or delivered was produced by that person to that other person. The 'age card' referred to here is that provided for in section 40 of the 1988 Act and regulations subsequently made by the Minister for Justice, Equality and Law Reform. The Commission has already outlined its support for the age card scheme in the Interim Report on Off-Licensing. In summary, a licence holder must be satisfied that a customer has attained the age of 18 years and is entitled to seek an age card under the general common law right to seek reassurance that one is not breaking the law in entering into a contract. The Equal Status Act does not impinge on this right in any way."10 This directly contradicts the contention that a licensee should impose a blanket ban on the sale of spirits to people between the ages of 18 to 21 in order to be certain of compliance with the 18 year age limit in the Licensing Acts, 1833 to 1999. 10 Commission on Liquor Licensing, Report on Admission and Service in Licensed Premises, December 2002. The respondent has therefore not adduced any supporting evidence for their contention that a distinction between beer and spirits is justified. Neither have they adduced supporting evidence that 18 to 21 year olds are so numerously involved in hand-overs of spirits as to warrant a total ban on such sales.

7.2.2. Respondent's oral evidence on purpose of Policy
Ms Fogarty, Ms Foster and Mr Kelly gave reasons for the policy of refusing to sell spirits to people under the age of 21 while presenting their oral evidence. Ms Fogarty stated that the policy was a catch-all policy to ensure under-age people are not served, and that it is purely a protective mechanism. The policy is clearly not designed to avoid serving under-age drinkers, since Mr Coulton produced his ID, in a form normally accepted by the respondent, showing that he was over 18. A policy which has the intention of avoiding prosecution under statute could arguably be seen as being for the purpose of compliance, but only where it goes as far as is required to comply with the law. Where a policy goes further than is required for compliance, other elements are at work and while they may be admirable from a moral and social perspective, they cannot be allowed to unnecessarily cut across the rights of others, particularly rights laid down by statute. Ms Foster stated that the policy was designed to prevent underage drinking, alcohol abuse and to prevent 'hand-overs'. These are the reasons that are offered to the public in support of the policy, since these are the reasons that were given to the complainant and his family. Mr Kelly stated that the policy has developed over many years. He went on to say that the company intends to stay in business and to do that it is necessary to ensure that staff other than the managers know what to do. There is a clear insinuation here that one purpose of the policy is to ensure that young and inexperienced staff are not to assess the risk of handover and, in order to avoid making a decision, they are simply to refuse service. Therefore the respondent company has, in its own evidence, indicated that compliance is not the sole purpose of the refusal of the complainant and the implementation of the policy generally. While they may argue that this is for the prevention of under-age drinking, and they have produced no evidence that suggests that this policy achieves this in any way, they are in fact going further than is required for compliance.

7.2.3. Intoxicating Liquor Act 1988
For greater clarity and certainty I shall now review the legislation mentioned by the respondent.
I note that the "reasonable grounds" defence previously available to a licensee has been removed from the Intoxicating Liquor Act, 1988, by the amending Intoxicating Liquor Act, 2000. This appears to have provided a defence in the past for a licensee where it was shown that they did not doubt the customer was of age. With the removal of this provision and the increase in penalties the onus on a licensee has been greatly increased to demand proof of age, and to be in a position to show that this was done. The respondent indicated that they have implemented a system connected to their accounting system whereby they can identify the proof produced for each transaction. It indicates what evidence is produced for a transaction, for example, age card or passport, and this can be linked with the security video to show that the evidence was actually produced and not simply recorded on the system.
The word 'permit' in section 31(1)(a) and 31(2)11 appears to cause some confusion for the respondent in relation to their responsibilities under the Intoxicating Liquor Act, 1988. The company felt that it was their responsibility to keep watch over the vicinity of the off-licence store. Taken to its extreme meaning, the inclusion of the word would appear to suggest that where a sale has already taken place, the licensee would then be responsible for ensuring that a hand-over did not take place. If the licensee did not intercede, this could arguably amount to permitting the hand-over, that is the delivery of the intoxicating liquor to a person under the age of 18. However, what are the rights of a licensee to intervene in such circumstances? It would appear that that role is more appropriate to the Gardaí. Since that interpretation leads to an absurdity that cannot be the intended meaning of the subsection.

11 Sections of the Intoxicating Liquor Act, 1988 are included in Appendix 1

In Attorney General v Carroll12,which is a case decided under the Intoxicating Liquor Act, 1927, Hanna J stated "I am satisfied that the publican 'permits' in law the consumption of intoxicating liquor on his premises, if he does not take reasonable steps to prevent it. Here there was neither protest, nor any attempt at prevention, but acquiescence and full knowledge." In Duncan v Gleeson13 the judge said "That case [Attorney General v Carroll] was followed by Maguire P in Attorney General v Egan ((1943) IR 357); and Davitt P, in the cases of Attorney General v James Greeney and Attorney General v Charles Strong (mentioned in para8 of the Case Stated), clearly took the view that it was open to the publican to make the defence that he had taken all reasonable steps to clear the premises."
The judge went on to say: "In regard to the offence of permitting persons to be on licensed premises during prohibited hours, this was first made an offence by s29 of the Intoxicating Liquor Act, 1962, and it must be assumed that the legislature, in using the word "permit" in that section, was aware of the construction put on that word in Attorney General v Carroll ((1932) IR 1) and in Attorney General v Egan ((1943) IR 357), and that it was not intended to create an absolute liability on the publican." Although this discussion of the use of the word 'permit' by the legislature relates to the publican permitting drinking outside of allotted times, it is persuasive in relation to the imposition of a liability by section 31 of the Intoxicating Liquor Act, 1988. It also indicates that the judiciary will assume that the legislature were aware of the construction put on the word in earlier caselaw, and that this is not considered to place an absolute liability on the licensee.
12 Attorney General v Carroll [1932] IR 1, 65 ILTR 213
13 JAMES K DUNCAN, Complainant v FRANCIS GLEESON, Defendant (1969 No 126 SS), [1969] IR 116
The system implemented by the respondent, that is the checking of ID of people under 23, is arguably sufficient to constitute "steps taken to prevent" the service of people under the age of 18 and the delivery of intoxicating liquor to those people.14 The amended 1988 Act does provide a defence for a licensee accused of serving someone underage. Section 31(4) provides that where the licensee can prove that the person making the purchase produced an age card, this shall be a defence15. Where evidence of age is produced and accepted as valid, and it can be shown that this is the case, any offence committed appears to be transferred to the customer by subsequent sections of the Intoxicating Liquor Act, 1998.
Where the customer is a person over 18 section 32 is relevant making it an offence for that adult to purchase and/or to deliver the liquor to a person under the age of 18 for consumption in any place other than a private residence.
Where the customer is a person under the age of 18 section 33 is relevant, making it an offence to purchase intoxicating liquor, to consume it anywhere other than in a private residence and to represent themselves as being over 18 for these purposes. Where the customer is a person under the age of 18 and the licensee failed to check that person's age then arguably both may be guilty of an offence. All of this suggests that once the licensee has satisfied him or herself that the person is over 18, there is no further legislative provision on the compliance issue with which, in accordance with S15(2) of the Equal Status Act, 2000, s/he can rely to justify a blanket ban of any sort on those over 18.
14 However, please see comments below in relation to the respondent's implementation of this ID checking policy.
15 Section 39 then provides for the assumption in any prosecution under S31 (and others) that the person was under 18, unless the contrary is proven.
When this is considered in conjunction with the respondent's statement that it is necessary to ensure that junior staff are given clear guidelines since they do not have experience equivalent to that of the senior permanent staff, such as the manager and deputy manager, it appears that one motive for the policy is to render it simpler to ensure compliance by creating an arbitrary buffer zone over the age which might cause compliance problems, thereby taking them absolutely beyond the danger area. Indeed, should the Oireactas decide to change the age limit from 18 to 21, the respondent may then change their arbitrary age limit in relation to spirits to, say, 24 years. This is supported by the fact that the respondent appears to apply this policy on a inconsistently, since the complainant's cousin has been served at least twice without being asked for ID while still in the age bracket identified by the respondent as requiring such checks, that is under 23 years of age. It appears therefore that if a person in the relevant age bracket is unfortunate enough to be served by one of the junior members of staff then supply of spirits will not be provided, whereas if one is served by a senior member of staff with more experience, and perhaps more authority, one may well be supplied with spirits. 16
Added to this is the fact that the policy is an unwritten one in a company that requires staff to sign training documents indicating that they understand all the requirements to be met. While it is suggested (though unproven) that this policy will ultimately have the effect of ensuring compliance, I am satisfied that it is in fact more to do with making it easy for the company to employ young temporary inexperienced staff without expecting them to cope with the difficulties arising in this area. This is achieved by infringing upon the legal rights of those people over the age of 18 affected by the ban. I find that a major purpose of the policy is to provide for the employment of young inexperienced staff without exposing the company to the risk of prosecution.
16 See Constance Cassidy, SC, Cassidy on The Licensing Laws, 2nd edition, Round Hall Ltd., 2001 where in section 31-7, (VI-82) Advice to Licensees, no. 2 "Ensure that an experienced manager/barman is on call at all times to deal with potentially difficult situations."

7.2.4. License renewal - Good Character
The respondent's second argument was that the refusal, and therefore the policy, is necessary to maintain their good character in relation to the renewal of their license, should an objection be raised. They submitted that to supply spirits, in a situation which might lead to a hand-over to people under the age of 18, might be considered reckless behaviour which in turn would suggest that they were not of good character. The example used, an extreme one, was the sale of a crate of vodka to an 18 year old. The respondent is suggesting that they could be regarded as behaving in a reckless manner based on such a sale. However, since such a sale is not illegal providing the respondent has determined that the customer is 18 or over, (and there is no evidence to suggest that this person will behave illegally), it is difficult to see how this could be used as a legal basis for a challenge to the renewal of their license. No caselaw was presented that might suggest that the Courts interpretation would be based on issues other than the law. This justification is more a moral or social one rather than a legal one. Should that 18 year old customer be reckless enough to supply the vodka to people under the age of 18 in any place other than a private residence it appears that that customer would be liable for their actions under section 32 of the Intoxicating Liquor Act, 1988.
Indeed the Commission on Liquor Licensing Report on Admission and Service in Licensed Premises, issued in December 2002, goes further by saying that arbitrary or unreasonable refusals may work against a licensee when their good character is being considered. It particularly refers to where such a refusal runs counter to public policy objectives. It is my opinion that the granting of anti-discrimination rights on the age ground by statute reflects a public policy objective.
"The 'good character' of the applicant has been considered by the courts on a number of occasions in connection with the renewal of licences. Case law pertaining directly to the area being considered in this report, i.e. admission and service, is patchy. It would appear, nevertheless, that the courts would be disposed to entertaining an objection to renewal of a licence on foot of an arbitrary or unreasonable refusal of admission or service by a licence holder, especially if such a refusal ran counter to public policy objectives. 17 "In R (Delaney) v Queens County JJ (1987-1988) 20 LR IR 167 'It appeared from the evidence of the witnesses examined, in opposition to the renewal if the certificate, that Delaney ha refused on several occasions during the preceding year to supply "boycotted" persons with drink and other articles, and that he had on other occasions made excessive charges to boycotted persons, and that he had thereby assisted in the combination against them.' On certiorari proceedings the court held that there was ample evidence to hold that the applicant was not of good character."18
The respondent argued that there was a balancing of rights in this case, i.e. their right to comply with the Licensing Acts, 1833 to 1999 and the complainants legal rights as an adult. According to Carroll J19 "The license is a privilege granted by statute and regulated for the public good. ... There is no constitutional right to a liquor license or a renewal thereof. There are only such rights as are given by statute subject to the limitations and conditions prescribed by statute." The Oireachtas in passing the Licensing Acts, 1833 to 1999 gave no indication that certain categories of adult could be treated differently than others, except in clearly indicated situations such as e.g. drunkenness. The history of case law in this area details the development of two conflicting tenets, the 'right to refuse' versus the 'duty to serve'.
In his book Liquor Licensing Laws of Ireland20, after reviewing the caselaw relating to refusals of service, Woods states "It is still the law that a publican is entitled to refuse admittance or service to a member of the public and require a person to leave the licensed premises without giving a reason for such a refusal. However, a judicial interpretation of the older authorities would now be more likely to comprehend the constitutional value of equality before the law enshrined in Article 40.1 of the
17 Commission on Liquor Licensing, Report on Admission and Service in Licensed Premises, issued in December 2002
18 Michael McGrath, Liquor Licensing Law, Butterworths, Section [1257]
19 The State (Pheasantry) v District Justice Donnelly and the Attorney General [1982] ILRM 512
20 James V Woods BL, Liquor Licensing Laws of Ireland, 3rd edition, March 2001, page 54.

Constitution." Woods goes on to say that the license is a privilege and that "a Court might quite rightly conclude that a licensee who abuses that privilege by capriciously, arbitrarily or unreasonably refusing to admit or to serve a person should be refused a renewal of his or her license on the ground of want of good character." Woods considers some grounds that might justify a refusal, specifically where someone has had too much to drink, is aggressive or is barred. It is worthy of note that all of these grounds relate to the individual being refused. In the case to hand no such grounds existed.
Good faith is not simply the absence of bad faith and it seems appropriate that there should also be a reasonableness test. An action which results in a blanket refusal of a category of people, whether it is defined by age, disability, gender, etc., cannot be deemed to be reasonable. Mr Coulton had done nothing to attract the refusal. He was not drunk, he was not aggressive, and he had not previously been barred. He was refused asan adult simply because of his age and without a reasonable ground for refusal in compliance with the Licensing Acts, 1833 to 1999. In short, the respondent's actions were not reasonable in the circumstances.
The policy, while perhaps admirable in its objectives relating to public policy, cannot be upheld or sustained on the grounds of public policy as this would require me to accept that individual licensees can set public policy. This is a function of the Legislature. It is clear that the Legislature in the drafting of the Licensing Acts, 1833 to 1999 did not impose restrictions on those who have attained adulthood.
I am satisfied that licensees cannot rely on the requirement to maintain their good name in relation to license renewal to support a refusal of service or supply of goods in the face of public policy objectives or legislation and without reasonable grounds based on the demeanor or behaviour of the person concerned.
Having examined the Licensing Acts, 1833 to 1999, I have not identified any provision that would require the removal of the right to purchase intoxicating liquor, or any of its sub-divisions, on attaining the age of 18. Having reviewed the relevant sections I have concluded that neither is it operationally necessary to remove that right in order to comply with the requirements of those Statutes. I have seen no provision requiring the respondent to distinguish between the sale of beer and the sale of spirits, both of which are intoxicating liquors. The respondent has failed to present reasonably objective evidence that the refusal, and therefore the policy, is for the sole purpose of compliance with the Licensing Acts, 1833 to 1999. In addition, it was stated in evidence that there were other aims behind the policy.

7.2.5. Good Faith
Since the respondent's actions have failed the 'sole purpose' test contained in Section 15
(2), it is not necessary for me to continue to consider the other, more subjective test relating to good faith. However, the following issues appear relevant to me. The respondent did exhibit a willingness to discuss the issue throughout. Their presentation of evidence to me was entirely open and direct, as was that of the complainant. It is clear that the respondent wishes to continue in business and is therefore anxious to pursue policies that will ensure such continuation. I do not believe that the respondent deliberately set out to discriminate against people in the 18-21 year age-bracket. However, it must have been apparent during their consideration that this group would be less favourably treated. The policy was developed over the years and the respondent indicated in evidence that it was reviewed in the light of the Equal Status Act, 2000. Certainly, it is highly desirable that underage drinking should be controlled. I accept that licensees are operating in a difficult environment since the Licensing Acts, 1833 to 1999 appear to be littered with inconsistencies. I also note that no code of practice has yet been developed that would assist a licensee in dealing with the issues arising in this case. However, it should be noted that while this policy is operated throughout the company in their various branches it is not included in their training document. The fact that the policy is not so included, or otherwise written down, seems odd given the huge work that the respondent does in ensuring that all employees are aware of their obligations and, given that in general, the respondent appears to take their responsibilities very seriously In addition, the policy is not indicated to the public in any way. That is, there is no advance warning to a customer in the relevant age-bracket. One has to question why the respondent felt that this policy should not be written down. If they genuinely felt that they were entitled to implement this policy one would expect to see it included with all of the others. It is not clear what the respondent's request for a letter from a parent or guardian was intended to achieve and how this would have protected them in any way. This request is of concern as it imposes a requirement on the complainant that is not required by law.

7.2.6. Conclusion
In the light of all of this I am satisfied that the respondent, in pursuing this policy of not serving spirits to people under the age of 21, has not done so for the sole purpose of complying with the Licensing Acts, 1833 to 1999. I find, therefore, that section 15(2) of the Equal Status Act, 2000 does not provide an exemption for the respondent in relation to the less favourable treatment afforded the complainant in this case.

8. Vicarious Liability
While it was a member of staff who informed the complainant that he would not be served spirits, I am satisfied that this was on the direct instructions of the respondent company, in that it was company policy. I am satisfied that the respondent is therefore directly liable for the refusal of service and that the consideration of vicarious liability in accordance with Section 42 of the Equal Status Act, 2000 is not necessary. Had it been necessary to consider vicarious liability then, the training document included in Appendix 2 could not have been used as a defence in accordance with Section 42 (3).

9. Decision
I find that the complainant was discriminated against on the age ground contrary to section 3(1), and section 3(2)(f) of the Equal Status Act, 2000, and in terms of section 5(1) of that Act.

9.1. Redress
Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a finding is in favour of the complainant in accordance with section 27.
Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified."

9.2. Order
I hereby order:

9.2.1. that €1000 be paid to the complainant by the respondent for the effects of the discrimination. In making this award I have taken into consideration:
The loss of amenity on the day.
The loss of amenity since 24/6/01 to date.
The frustration and annoyance caused by the non-application of the policy to the complainant's cousin on the same day.
The efforts made by the complainant to assert his statutory rights, in the face of the respondent's implacability, although this is mitigated somewhat by the respondent's willingness to discuss the issue.

9.2.2. That Molloy's immediately make the policy found to be discriminatory in this decision compliant with the Equal Status Act, 2000.

9.2.3. That Molloy's revise all of their policies in relation to refusals of service with a view to ensuring the compliance of these policies with the Equal Status Act, 2000.

9.2.4. That Molloy's display a notice, in a prominent position in easy view of the public, stating their commitment to treating people in accordance with the provisions of the Equal Status Act, 2000.

Bernadette Treanor
Equality Officer
31 March 2003

Appendix 1: Extracts from the Intoxicating Liquor Act, 1988

Sale of intoxicating liquor to persons under the age of 18 years.
31. -- (1) The holder of any licence shall not --
( a ) sell or deliver or permit any person to sell or deliver intoxicating liquor to a person under the age of 18 years,
( b ) sell or deliver or permit any person to sell or deliver intoxicating liquor to any person for consumption on his licensed premises by a person under the age of 18 years,
( c ) permit a person under the age of 18 years to consume intoxicating liquor on his licensed premises, or
( d ) permit any person to supply a person under the age of 18 . years with intoxicating liquor on his licensed premises.
(2) The holder of a licence of any licensed premises shall not sell or deliver or permit any person to sell or deliver intoxicating liquor to any person for consumption off his licensed premises by a person under the age of 18 years in any place other than a private residence.
(3) A person who contravenes subsection (1) or (2) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding --
( a ) £300, in the case of a first offence, or
( b ) £500, in the case of a second or any subsequent offence.
(4) In any proceedings for a contravention of subsection
(1) or (2) of this section, it shall be a defence for the defendant to prove that the person in respect of whom the charge is brought produced to him or her an age card relating to that person or, if the defendant is charged with permitting another person to sell or deliver intoxicating liquor contrary to either of those subsections, to prove that an age card relating to the person to whom the intoxicating liquor was sold or delivered was produced by that person to that other person.

Provision of intoxicating liquor for persons under the age of 18 years.
32. -- (1) A person shall not --
( a ) purchase intoxicating liquor for delivery to, or consumption by, a person under the age of 18 years in any place other than a private residence,
( b ) deliver intoxicating liquor to a person under the age of 18 years in any place other than a private residence, or
( c ) send a person under the age of 18 years to any place where intoxicating liquor is sold, delivered or distributed for the purpose of obtaining intoxicating liquor.
(2) A person who contravenes subsection (1) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding --
( a ) £300, in the case of a first offence, or
( b ) £500, in the case of a second or any subsequent offence. Offences by persons under the age of 18 years.
33. -- (1) A person under the age of 18 years shall not --
( a ) purchase intoxicating liquor,
( b ) consume intoxicating liquor in any place other than a private residence in which he is present either as of right or by permission, or
( c ) represent himself for the purpose of obtaining, or being permitted to consume, intoxicating liquor, to be over the age of 18 years.
(2) A person who contravenes subsection (1) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £50. 1988 16 36
Restriction on persons under the age of 18 years being on premises used for sale of intoxicating liquor for consumption off the premises.
36. -- (1) Where a licensed premises, or any part of a licensed premises which is structurally separate from the remainder of the premises, is used exclusively or mainly for the sale of intoxicating liquor for consumption off the premises, the holder of the licence of the licensed premises shall not permit a person who is under the age of 18 years and who is not accompanied by his parent or guardian (other than a person under that age whose employment in the licensed premises is not prohibited under section 38 of this Act) to be at any time on such premises or, as the case may be, such part of such premises.
(2) A person who is under the age of 18 years and who is not accompanied by his parent or guardian (other than a person under that age whose employment in the licensed premises is not prohibited under section 38 of this Act) shall not be at any time on a licensed premises, or on any part of a licensed premises which is structurally separate from the remainder of the premises, where such premises or, as the case may be, such part of such premises, is used exclusively or mainly for the sale of intoxicating liquor for consumption off the premises.
(3) Where a licensed premises, or any part of a licensed premises which is structurally separate from the remainder of the premises, is used exclusively or mainly for the sale of intoxicating liquor for consumption off the premises, the holder of the licence of such licensed premises shall display in a conspicuous place in such premises a notice stating that it is an offence for a person who is under the age of 18 years and who is not accompanied by his parent or guardian to be on such premises or, as the case may be, in such part of such premises.
(4) A person who contravenes subsection (1) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding --
( a ) £100, in the case of a first offence, or
( b ) £250, in the case of a second or any subsequent offence, and the offence shall be deemed for the purposes of Part III (which relates to the endorsement of licences) of the Act of 1927 to be an offence to which that Part of that Act applies.
(5) A person who contravenes subsection (2) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £50.
(6) A person who contravenes subsection (3) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding --
( a ) £20, in the case of a first offence, or
( b ) £50, in the case of a second or any subsequent offence.
"(7) In any proceedings against a person for a contravention of subsection (1) of this section, it shall be a defence for the defendant to prove that he or she used all due diligence to prevent the person under the age of 18 36 years in respect of whom the charge is brought from being admitted to the premises or any part of the premises which is used exclusively or mainly for the sale of intoxicating liquor for consumption off the premises or that the person produced to him or her an age card relating to that person. "Temporary closure of premises. 36A. -- (1) This section applies to an offence under subsection (1) or (2) of section 31, subsection (1) of section 35 or subsection
(1) of section 36 of this Act.
(2) Subject to subsection (3), where the holder of any licence for the sale of intoxicating liquor by retail in any premises is convicted by the District Court of an offence to which this section applies, the Court shall, in addition to any penalty imposed, make an order (in this section referred to as a 'temporary closure order') for the closure of the premises concerned or any part thereof for a period --
(a) not exceeding 7 days in respect of a first such offence, or
(b) of not less than 7 and not more than 30 days in respect of a second or any subsequent such offence.
(3) Where a licence holder --
(a) is convicted of more than one offence to which this section applies, and
(b) all the offences were committed on the same occasion, only one temporary closure order may be made in respect of the offences.
(4) In determining the duration of a temporary closure order, the Court may seek from a member of the Garda Síochána involved in the investigation of the offence a report on the circumstances in which it was committed and any other information which the Court may consider to be of assistance to it in dealing with the case.
(5) The period of closure specified in a temporary closure order in respect of a licensed premises or any part thereof shall commence --
(a) if no appeal is made against the conviction or period of closure concerned, on the 30th day after the order is made, or
(b) if such an appeal is made and the conviction or period of closure is affirmed, on the 30th day after the conviction or such period is affirmed, and shall end --
(i) if no appeal is made against the conviction or period of closure, on the expiration of the period specified in the order,
(ii) if such an appeal is made and the conviction or period of closure is affirmed, on the expiration of the period so specified, or
(iii) if on appeal the period of closure is varied, on the expiration of the period as so varied.
(6) A temporary closure order which is in force in respect of any premises or part thereof shall have effect for the purposes of the Acts as if the premises or that part were not licensed for the sale of intoxicating liquor during the period of closure mentioned in subsection (5).
(7) If on appeal a conviction for an offence to which this section applies is reversed, the temporary closure order concerned shall thereupon cease to have effect.
(8) While a licensed premises or any part of it is closed in compliance with a temporary closure order, there shall be affixed to the exterior of the premises, in a conspicuous place, by the holder of the licence a notice specifying the period of closure and stating that the closure is in compliance with the order.
(9) No employee who is working in the premises to which a temporary closure order applies shall be disadvantaged in his or her employment by reason of the order during the period of closure under it.
(10) For the purposes of subsection (9), 'employee' means any person who works under a contract of employment with an employer or is a regular part-time employee as defined in section 1 of the Worker Protection (Regular Part-Time Employees) Act, 1991.
(11) Nothing in the Acts shall prohibit the Court from ordering that a conviction for an offence to which this section applies shall be recorded on the licence held by the person so convicted, and accordingly, where the Court so orders, the offence concerned shall be deemed for the purposes of Part III (endorsement of licences) of the Act of 1927 to be an offence to which that Part of that Act applies.
(12) If --
(a) the conviction for an offence to which this section applies is affirmed by the Circuit Court on appeal, or
(b) the appeal relates to the period of closure specified in the temporary closure order, the Court may vary the period of closure specified in the relevant temporary closure order.
(13) The jurisdiction of the District Court and Circuit Court under this section shall be exercised by the judge for the time being assigned --
(a) in the case of the District Court, to the district court district in which the relevant licensed premises are situated, and
(b) in the case of the Circuit Court, to the circuit in which the courthouse in which the temporary closure order was made is situated.".
Proof of age in prosecution. 39. -- (1) Where in any prosecution under section 31, 32, 33, 35, 36, 37 or 38 of this Act, it is alleged that the person by whom, or in respect of whom, the offence was committed was a person under the age of 18 years, and such person appears to the Court to have been, at the date of the commission of the offence, a person under that age, that person shall, for the purposes of this Part, be presumed to have been under the age of 18 years at that date, unless the contrary is proved.
(2) Where in a prosecution for an offence under section 34 of this Act, it is alleged that the person in respect of whom the offence was committed was a child, and such person appears to the Court to have been a child at the date of the commission of the offence, that person shall, for the purposes of this Part, be presumed to have been a child at that date, unless the contrary is proved.