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Draft Legislation Lays Plans for the Reopening of Indoor Dining and Hospitality

Draft legislation, entitled the Health (Amendment) (No. 2) Bill 2021 (the “Bill”), providing for the reopening of indoor dining and hospitality has been published and is currently before the Dáil, having received Cabinet approval last Monday, 12 July 2021. It is intended that the legislation will be passed by the Dáil and Seanad before they break for summer recess at the end of this week.

In this article, Compton Solicitors take a look at the Bill (as initiated) and highlight some of its main provisions.

Who can dine Indoors?
Under the Bill, hospitality businesses such as hotels, bars and restaurants will be permitted to reopen for indoor service for “permitted persons” only.

Who are “Permitted Persons”?
Permitted persons are proposed to be those that:-

have proof that they are fully vaccinated;
have proof that they have recovered from COVID-19; or
are under 18 and are accompanied by a parent or guardian on such terms as may be prescribed by regulations to be issued by the Minister.

The Minister for Health is given the power to pass a wide range of regulations (further detail below) to include changing the definition of permitted persons and prescribing what constitutes sufficient proof of immunity.

What are the conditions for reopening for Hotels, Bars and Restaurants?
In order for hotels, bars and restaurants to be permitted to reopen for indoor service, they must comply with certain conditions set out in the Bill (the “conditions for reopening”). The responsibility for compliance with the conditions for reopening falls on the “indoor operator” of the premises in question, being the licence holder in respect of licenced premises or the occupier/manager/person in charge of other relevant indoor premises.

The conditions for reopening are as follows:

(a) that “reasonable steps” are taken by the indoor operator to ensure that only permitted persons are allowed entry to an indoor premises (e.g. by inspecting such documents that are specified by the Minister for Health as constituting sufficient proof of vaccination or immunity from COVID-19);
(b) that indoor operators do not knowingly allow anyone who is not a permitted person to enter;
(c) that personal data accessed by the indoor operator is not retained for any longer than is strictly necessary;
(d) that the indoor operator adheres to any guidelines (or part thereof) that are set out by a body specified by the Minister for Health; and
(e) that the indoor operator complies with any additional conditions that are prescribed by the Minister for Health, including conditions regarding the classes of persons who are permitted access to indoor hospitality.

Can the Minister for Health make further regulations for reopening?
Under the Bill, the Minister for Health has the power to make further regulations relating to the reopening and operating of indoor hospitality, including regulations in respect of:

any safeguards that must be put in place by licence holders, managers, etc. (e.g. in respect of different levels of access to premises by difference classes of persons based on immunity or vaccination against COVID-19).
any additional matters regarding the operation and enforcement of the above conditions that indoor hospitality businesses must follow.
expanding the definition of “permitted persons” to include people who have received negative test results for COVID-19 as “permitted persons”.
the types of proof that are necessary for proof of immunity or similar.
additional conditions that are appliable to specific classes of premises.

How will the proposed regulations be enforced?
The HSE or HSA (or such other body prescribed by the Minister for Health) are to designate “compliance officers” who will be permitted without warrant to enter hotels, bars and restaurants to inspect whether an indoor operator is complying with the conditions for reopening (see above.

Anyone who prevents or obstructs (or attempts to) a compliance officer from entering is guilty of an offence and liable to a €2,500 fine on summary conviction.

For the purposes of the inspection, compliance officers are allowed to make any inspection, examination, observation and enquiry as they think “proper” for assessing whether the conditions for reopening are complied with.

What actions can a Compliance Officer take if they suspect a premises is not compliant?
Where a compliance officer believes that an indoor operator has allowed a person who is not a permitted person access to their premises, then they will: (1) inform the indoor operator of their view, (2) direct that the indoor operator take certain appropriate steps in order to comply with the conditions for reopening and (3) inform the indoor operator that a failure to comply with the director could result in them taking the following actions:

(1) informing a member of the Garda Síochána;

(2) bringing an application for an “emergency cessation order” to the District Court;

An “emergency cessation order” can be brought without notifying the indoor operator, in circumstances where an indoor operator fails to comply with a compliance officer’s direction.

If the District Court is satisfied that there has been a failure to comply with a direction and such failure is likely to recur, then the indoor operator may be ordered to close their indoor dining for a maximum period of 72 hours. An application can be made by the indoor operator concerned to have the court order discharged.

During this period, the indoor operator concerned must affix a notice that specifies the details and duration of the order to the front of the premises in a clearly visible place. Failure to do so is an offence which is punishable by a €2,500 fine on summary conviction.

If a hotel, bar or restaurant continues to operate their indoor dining area in breach of the court order, they are guilty of an offence and liable on summary conviction to a €5,000 fine, a 12 month imprisonment, or both.

(3) issuing a compliance notice;

Where an indoor operator has failed or refused to comply with a direction, but no emergency cessation order was made in respect of this, then a compliance officer can issue a “compliance notice” within 5 days of the giving of the direction in question.

The compliance notice will (1) specify the conditions for reopening that are not being complied with, (2) state the grounds on which the previous direction was made, (3) require the indoor operator to comply with the direction immediately and (4) inform the indoor operator that the compliance officer may apply to the District Court for a “cessation order”.

A hotel, bar or restaurant may appeal a compliance notice to the District Court within 7 days of its service.

(4) bringing an application for a “cessation order” to the District Court.

If the compliance officer has served a compliance notice, in the terms outlined above, and they are of the opinion that there has been a failure to comply with the compliance notice, an application can be made to the District Court for a “cessation order”. A cessation order, if granted can close the indoor dining area for up to 7 days for first-time orders or up to 30 days for subsequent orders.

Similar to the emergency cessation order, the indoor operator concerned must affix a notice that specifies the details and duration of the order to the front of the premises in a clearly visible place. Failure to do so is an offence which is punishable by a €2,500 fine on summary conviction.

Unlike the emergency cessation order, this application can only be made by giving not less than 5 day’s notice to the indoor operator and 7 day’s notice to the District Court.

Where the District Court is satisfied that there has been a failure to comply with a compliance notice, that this failure is continuing or likely to recur and that the making of a cessation order is appropriate in the circumstances, then it may grant the order.

Appeals against cessation orders may be made to the Circuit Court. However, an appeal does not suspend the order of the District Court unless the appellant successfully makes an argument that the order of the District Court should be suspended and the indoor dining area should be permitted to operate pending the determination of the appeal.
If a hotel, bar or restaurant continues to operate their indoor dining area in breach of the court order, they are guilty of an offence and liable on summary conviction to a €5,000 fine, a 12 month imprisonment, or both.

Compton Solicitors will monitor and provide an update on any changes that may be made to the final Bill. Please keep an eye on our website and LinkedIn for further details.

This document is intended to provide a general overview and guidance on a particular topic. It is provided wholly without any liability or responsibility on the part of Compton Solicitors and does not replace the necessity to obtain specific legal advice.

Please contact Lorraine Compton or Fiona Tonge for more information: –

Lorraine Compton on 086 – 253 4651 or lorraine.compton@comptonsolicitors.ie

Fiona Tonge on 089 – 471 4128 or fiona.tonge@comptonsolicitors.ie