Introduction
In the second case of Patrick Anthony McCarthy –v- Streets Nightclub, Cork, McCarthy also maintained that he was discriminated against on the travelling community ground in contravention of the Act. Streets Nightclub totally rejected that they operated a discriminatory policy against travellers and maintained that Mr. McCarthy was refused access because he arrived intoxicated at the Nightclub.
In both decisions, the Equality Officer was satisfied that discrimination contrary to the Act, had not taken place. These decisions highlight very important defences that are available to licensed premises for claims taken against them for alleged discrimination contrary to the Act. Here, we examine the decisions in more detail and in particular the defences put forward by each of the licensed premises.
Patrick Anthony McCarthy, (“the Complainant”), maintained that he was discriminated against, contrary to the Act by the management of Streets Nightclub, Cork. He maintained that he was discriminated against on the traveller community ground, in terms of Sections 3 (1) and 3 (2) (i) of the Act, in not being provided with a service which is generally available to the public contrary to Section 5 (1) of the Act. The Complainant maintained that he had four pints in a licensed premises before attempting to gain entry to Streets Nightclub in Cork. He further maintained that, on attempting to gain entry, he was told by two or three doormen on the premises that they could not let him in on the orders of their boss. The Complainant alleged that a Garda arrived at the premises and he and his friends explained their position and asked the Garda to get the names of the bouncers for them. The Garda indicated that he could not do so. The Complainant alleged that he and his friends then asked the Garda if he would be a witness for them and he confirmed that he would. The Complainant initially indicated that he did not return to Streets for seven/eight months after this incident but on hearing the evidence of the owner of the Nightclub and the Garda, later changed that story. The Complainant did acknowledge he had been in the premises a number of times since the incident and had experienced no problems in being served.
In their defence, Streets Nightclub (“the Respondent”) indicated that they would only refuse admission to someone who was intoxicated and who was considered to be a danger to themselves and others. The owner, Mr. Bill Casey, stated that he has always treated Travellers well and that he respects them and they respect him. Mr. Casey himself was on the door on the night of the alleged incident. He recalled the Complainant’s group arriving and said that his immediate impression of the Complainant was that he was extremely intoxicated. Mr. Casey indicated that he was concerned that the Complainant might be a danger to himself or others if admitted and therefore told the Complainant that he was not being admitted. Mr. Casey went on to say that instead of leaving, the Complainant and his friends withdrew to a telephone kiosk where, after a short conversation, they came back to the entrance.
It was Mr. Casey’s evidence that one member of the group instructed the Complainant to lie on the ground and they then announced that they had seen him “get a belt” from a doorman. Due to the fact that the Complainant continued to lie on the ground, Mr. Casey called the Gardai. When the Garda arrived, Mr. Casey briefed him on what happened and then stepped back and allowed the Garda to deal with the situation. Mr. Casey stated that subsequent to this incident, he heard from a number of other publicans about similar incidents occurring around the same time in Cork whereby individuals had feigned assaults outside pubs or clubs.
At the Equality Officer hearing, Mr. Casey said that one of his doormen would have a written report of the incident in the incident report book and undertook at the hearing to forward that to the Equality Officer for inspection. In the decision, the Equality Officer notes that, some weeks after the hearing, Mr. Casey submitted a copy of the extract from the incident report book. This note accurately reflected Mr. Casey’s recollection of the events of the 9th September, 2001. The Equality Officer noted that there was no doubt in his mind about the authenticity of the report submitted by Mr. Casey in this regard.
Garda Nunan, who was the Garda called to the scene by Mr. Casey, then gave evidence about the incident. When he arrived at the Nightclub, there was a man on the ground and he confirmed that he was almost certain that it was the Complainant. He said that the Complainant appeared drunk. The Garda also checked the Complainant for injuries but could find none.
On hearing the evidence of the Nightclub owner and the Garda, the Complainant gave further evidence that he attempted to gain access to the same Nightclub about two months after the alleged incident on the 9th September, 2001, and that his brother was assaulted by one of the bouncers.
In his determination, the Equality Officer noted that in cases such as this, the burden of proof lies with the Complainant who is required to demonstrate that a prima facie case of discrimination exists. The Equality Officer further noted that, if established, the burden of proof then shifts to the Respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory. The Equality Officer indicated that there are three key elements which need to be established to show that a prima facie case of discrimination occurs. These are:-
The Equality Officer noted that only if and when the above elements are established does the burden of proof shift and in such cases the Complainant does not need to prove that there is a link between the difference in treatment and the membership of the ground, instead the Respondent has to prove that there is no such link.
The Equality Officer indicated that the Complainant had satisfied him that he was a member of the travelling community ground. Furthermore, the Equality Officer noted that the Respondent accepted that the Complainant was refused admission on the 9th September, 2001. Therefore, the only factor left to be determined by the Equality Officer was whether the treatment afforded the Complainant by refusing admittance to the Nightclub was less favourable than the treatment a non-traveller would have received in similar circumstances.
The Equality Office noted that he was faced with two conflicting version of events on the basis that the Complainant indicated that his group were refused admission for no reason, that they were not drunk, and that they reported the matter to a Garda who agreed to act as a witness for them. On the other side, the Respondent indicated that on the night on which the Complainant was alleging discriminatory treatment, the “man on the ground” incident occurred and that it was the Complainant who was on the ground and that he was intoxicated.
The Equality Officer noted that due to the conflict of evidence, his only option was to rely on the only evidence from an independent witness being that of the Garda.
The Equality Officer said that the Respondent came across as a very sincere and genuine individual, with a very supportive attitude towards Travellers. Furthermore, this was supported by the Garda. The Equality Officer noted that the Complainant’s credibility had been damaged by the further evidence that he gave of the alleged incident two months after the 9th September, 2001. In this regard, the Complainant initially indicated that he had not re-visited the Nightclub for seven/eight months after the 9th September whereas, having heard the evidence of the Nightclub owner and the Garda, he then recalled that he had tried to gain entry to the premises two months later when his brother had been assaulted.
In all of the circumstances, the Equality Officer was satisfied that a genuine non-discriminatory reason existed for the Complainant’s non-admission to the Nightclub on the 9th September and that, while reference had been made to his traveller identity, he was not treated less favourably than a non-traveller would have been treated in similar circumstances. Therefore, the Equality Officer was satisfied that no discriminatory treatment had been proven.
This decision clearly highlights the importance of maintaining notes in relation to any incidents which do occur on a licensed premises together with the importance of independent evidence that can corroborate the evidence of the owner of the licensed premises, in this case a Garda.
Mr. Collins (“the Complainant”) maintained that he was discriminated against by Drogheda Lodge Pub (“the Respondent”) on the grounds that he is a member of the Travelling Community on the basis that he was denied service in the Respondent premises on the 23rd June, 2001. The Complainant said that he was in company and had been served with intoxicating liquor by the Respondent. He said that these previous drinks had been ordered by others in his group but when he placed an order himself, he was refused. He stated that this was specifically because he was a member of the Travelling Community.
In defence, the Respondent agreed that the Complainant was refused service but stated that it was because the order for drinks was intended for another group who had just entered and were considered to be intoxicated. The Respondent relied on Section 15 (1) and 15 (2) of the Act, and stated that those sections provided exemptions for their treatment of the Complainant.
A Director of the Respondent gave evidence that the right to refuse policy had been drawn up over two years and was amended occasionally. He indicated that the Respondent does not operate any policies that would be considered discriminatory towards Travellers. He said that there were no security personnel on the Respondent premises to see the group of four arrive. Two security men were called in from the adjoining bar and they arrived after the Complainant had been refused service and was in a rage.
Sergeant Liam Monaghan gave evidence on behalf of the Respondent and indicated that he was not involved in the incident where the Complainant was refused drink on the 23rd June, 2001, but that there were previous incidents at the Respondent premises involving both travellers and non-travellers. The Sergeant gave evidence that he believed that the Respondent admits and serves Travellers.
The Equality Officer, in arriving at a determination, noted that Section 15 (1) of the Act, 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 or sought”. The Equality Officer went on to note that Section 15 (2) of the Act states that “action taken in good faith by or on behalf of the holder of a license or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the Licensing Acts, 1833-1999, shall not constitute discrimination”.
The Equality Officer indicated that at the outset, he had to decide whether or not a prima facie case had been established by the Complainant. Again, the Equality Officer noted that in order to establish a prima facie case, there must be discriminatory ground, evidence of specific treatment of the Complainant by the Respondent and evidence that that treatment is related to the discriminatory ground.
The Equality Officer noted that the evidence of the Respondent had been that three out of the four members of the group for which the Complainant was buying drinks had been watched entering the pub and the conclusion reached was that they were intoxicated. The Equality Officer went on to consider Section 13 of the Licensing Act, 1872, which was raised in the Respondent’s defence to the claim. The Equality Officer noted that this section states 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 IR£200”.
The Equality Officer then went to review some relevant case law and came to the conclusion that the case-law clearly showed 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 Act, 1833-1999.
In relation to the proviso in Section 15 (2) of the Act that actions must be taken in good faith in order not to be discriminatory, it was submitted on behalf of the Respondent that the decision as to whether or not an action taken is on good faith is a subjective one. In this regard, the Equality Officer looked to the decision of Catherine Blake and Others –v- Clere’s Public House, Kilkenny where the Equality Officer in that case considered the good faith issue as follows:-
“Section 15 (2) of the Equal Status Act, 2000, requires that action 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 test for the sole purpose of 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”.
On applying the above test to the facts before him, the Equality Officer found that the initial refusal to serve the Complainant was taken in good faith for the sole purpose of ensuring compliance with the Liquor Licensing Acts, 1833-1999 and that a subsequent barring from the premises was as a result of behaviour which may have been considered as amounting to disorderly conduct. The Equality Officer went on to note that the Complainant had 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 Travelling Community. The Equality Officer was satisfied that a non-traveller attempting to purchase intoxicating liquor for people deemed to be intoxicated would be treated in an similar manner. Therefore, the Equality Officer was satisfied that the Complainant had not established a prima facie case of discrimination on the Traveller ground. In all of the circumstances, the Equality Officer found that the Complainant was not discriminated against on the traveller ground.
The above case highlights important defences and obligations available under Section 15 of the Act to the owners of licensed premises.
Jennifer Cashman
