EXCLUSIVE: A Donegal businessman has reacted furiously after the High Court overturned a previous court decision not to prosecute him for breaching the smoking ban at his pub.
Former Finn Harps footballer and owner of the Fisherman’s Inn bar, Maurice Toland, was prosecuted after HSE officials said the smoking room at his St Johnston pub breached regulations.
Environmental Health Officers claimed the structure was a room within a room because it is surrounded by four walls of the main premises.
The pub owners, St Johnston Taverns Ltd and directors Maurice and Ann-Marie Toland, were prosecuted under smoking ban legislation in Letterkenny District Court on February 2, 2011.
They denied it breached the ban and their architect gave evidence to the District Court that the smoking area was open to the elements and had been designed in such a way to let smoke out.
District Judge Seamus Hughes dismissed the case after finding that more than 50 per cent of the walls of the structure were open and therefore came within the exceptions for smoking areas as contained in the Public Health(Tobacco) Act 2002.
He also found that the distance between the four surrounding walls of the main pub to the walls of the smoking structure was immaterial.
However, he decided to state a case to the High Court in which its opinion was sought as to whether his findings were correct in law.
Today President of the High Court, Justice Nicholas Kearns, ruled that the smoking room at the Fisherman’s Inn did breach smoking regulations and upheld the HSE prosecution.
The owner of the Fisherman’s Inn, Maurice Toland, has reacted furiously to the decision of the High Court.
Mr Toland told Donegal Daily said it was a case of the ‘small-man losing again.’
The Donegal businessman estimated he has so far spent up to €12,000 on legal fees trying to maintain the smoking room at his premises.
But he admits he cannot appeal today’s decision of the High Court to the Supreme Court.
“The bottom line is that the HSE have unlimited funds and can continue to fight this case for as long as they choose.
“We won this case in both the district court and the circuit court and both judges agreed that we had complied with the law.
“However the HSE appealed it again because they have the power and the funds to do so and they have won.
“Once again the system has beaten the small-man, the self-employed person trying to make a living,” he said.
Mr Toland says he is unsure if he will be able to renovate the smoking room at his bar.
He says he met with officials from the Environmental Health Office on a number of occasions to discuss plans for the smoking area.
“My architect bent over backwards to comply with the building guidelines and two judges agreed that the room was perfectly adequate.
“And yet the HSE ignore these judges and are able to write a blank cheque to take it to the High Court.
“The only alternative I have is to tell my patrons to smoke out in the street at the front of the bar and I certainly don’t want that.
“It would not only look unsightly but it could lead to all sorts of anti-social behaviour,” he said.
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