THE SUPREME COURT

Barrington, J.                                                                                          Rec. No. 16/99
Keane, J.
Barron, J.

EASTERN HEALTH BOARD 
                                                               Prosecutor
and
CUMANN LUITHCHLEAS GAEDHEAL TEORANTA
                                                                                    Defendant

JUDGMENT of Barrington, J. delivered on the 7th day of July, 1999.
	This is a case, stated by Judge Dominic Lynch, a Judge of the Circuit Court, pursuant to Section 16 of the Courts of Justice Act, 1947.   

	The case stated arose in the course of an Appeal, or series of Appeals, pending before the learned Circuit Court Judge and concerning the operation of a food business at the main Cafeteria, Hogan Stand, Croke Park, on the 28th day of July, 1996.

	The alleged offences concerned breaches of Article 25 of the Food Hygiene Regulations 1950 [SI No. 205 of 1950] and of Section 54 of the Health Act, 1947 as amended by Statutory Instrument No. 333 of 1991 implementing the EEC directive No. 89/397/EEC.

	The alleged offences cover a wide range of breaches of the Regulations ranging from failing to keep the ceilings of the premises in a proper state of repair, failure to provide a proper system of ventilation, to allowing clothes to be stored in a food room and failing to keep ice used in connection with the food business clean.

	Another company, Concessions Ireland Ltd., has been convicted in respect of the same alleged offences upon the same date.   

	Cumann Luithchleas Gaedheal Teoranta (hereinafter called the Defendants) is a limited liability Company incorporated to hold the property and manage the affairs of Cumann Luithchleas Gaedheal.  Being a limited liability Company it is, of course, a different person from Cumann Luithchleas Gaedheal and this led to some confusion in the present case.  The Defendants, however, very properly informed the Court, that they were not taking any point on the distinction between the Company and the Unincorporated Association.

	The Defendants substantial defence is that they were convicted as being “the proprietor of a food business, carried on in connection with a food premises situate at Main Cafeteria, Hogan Stand, Croke Park”, whereas they are not the owners of the said business and that there is no evidence that they were the owners of the business at the relevant date. 

FOOD HYGIENE REGULATIONS, 1950.
	Article 25 of the Food Hygiene Regulations, 1950 provides as follows:-
25.	“The following provisions shall be complied with in relation to a food premises and a food business carried on in connection therewith by the proprietor thereof......”
It then sets out a series of matters which the proprietor must attend to.

	Article 26 (which deals with a food business carried on from a stall) provides as follows:-
26.	“The following provisions shall be complied with by the stall holder in relation to a food stall and the food business carried on in connection therewith......”
	Article 27, which deals with a food business carried on otherwise than from a food premises or a food stall provides as follows:-
27.	“The following provisions shall be complied with in relation to a food business carried on otherwise than at a food premises or a food stall by the person carrying on such business”.

	It should be noticed that the Regulations are primarily concerned with the obligations of the person who carries on the business whether it be carried on from a premises, a food stall or otherwise.

	Articles 26 and 27 may, however, be different from Article 25 in that under the first two Articles the duty imposed appears to be placed exclusively upon the owner of the business whereas, under Article 25 an obligation may be placed upon the owner of the premises as well as upon the owner of the business.  There are times where this distinction may be of no importance as where the owner of the business is the owner of the premises or where he holds the premises under a lease or tenancy which gives him exclusive occupation.  The situation may, however, be different where the owner of the business holds merely under a licence without exclusive occupation.   

DEFINITIONS.
	The definitions contained in Article 2 of the Regulations hardly carry this analysis much further:-
“food business” is defined as meaning “the manufacture, preparation, importation, storage, distribution or exposure for sale of food intended for sale for human consumption but does not include the preparation, storage, distribution, sale or exposure for sale of raw fruit, raw vegetables, dairy produce or eggs by the producer of such produce”.

“food premises” is defined as meaning “ a premises or part of a premises in which a food business is carried on otherwise than by a Department of State or a local authority but does not include a transit shed at a port or any other premises or part of a premises where 
(a)	food is not manufactured or prepared and 
(b)	food is not imported, stored, distributed, exposed for sale or sold
	except in impermeable containers”.

“proprietor” in relation to a food premises means “the person who carries on the food business at that premises”.

“Registered Proprietor” in relation to a registered food premises means “a person registered in the Register of Food Premises as being the proprietor of the said premises”.

	It would therefore appear that the word “proprietor” when used on its own in relation to a food premises means the person who carries on the food business at the premises but the term “registered proprietor” in relation to a registered food premises would appear to mean the proprietor of the premises themselves.   

	No doubt in many cases the “proprietor” and the “registered proprietor” may be one and the same person but in some cases (of which the present case may be one) they may be different persons.

EVIDENCE.
	The evidence in the present case is that “Cumann Luthchleas Gael” was registered on the 23rd January, 1986 in the Register of Food Premises as being the proprietor of “The Main Shop, Hogan Stand, Croke Park, Dublin 3”.

	Article 44 paragraph 1 of the Food Hygiene Regulations, 1950 provided that where the food business in a registered food premises was transferred from the registered proprietor to another person the registered proprietor should notify the Health Authority accordingly.  However this provision was amended by the Food Hygiene [Amendment] Regulations, 1971 [SI No. 322 of 1971] whereby a new Article 44 was inserted in the Food Hygiene Regulations 1950 to replace the original Article 44.   Under the new Article 44 the duty of notifying the Health Board of the transfer of the business is shifted from the transferor to the transferee and the Chief Executive of the Health Board may, at any time, without application from the original registered proprietor cancel the registration of a food premises if he is satisfied that there has been a transfer of the food business in the premises from the registered proprietor to another person and that that other person has failed to notify the Health Board of the transfer. 

	In the present case it does not appear that any formal notification was given to the Health Board of a transfer of the food business.   It is quite clear however that, on the relevant date, the food business in the premises was being carried on by a company called Concessions Ireland Ltd.  So much was admitted by Ms. Part an official of the Health Board who gave evidence before the learned Circuit Court Judge.   Ms. Part did not however admit that the Defendants were not also engaged in the food business at the relevant date.

	However Mr. Michael Lawlor a Director of Concessions Ireland Ltd. was called to give evidence on behalf of the prosecution and under cross examination he agreed that his Company, Concessions Ireland Ltd., was the person who carried on the food business in the relevant premises at the relevant time and that neither Cumann Luthchleas Gael nor Cumann Luithchleas Gaedheal Teoranta interfered or attempted to interfere with the running of the business.   He went on to say that Concessions Ireland Ltd. employed all its own staff, it was their business entirely, and that he had the key to the main Cafeteria and that the GAA could not enter without his permission.  

	A natural inference to be drawn from this evidence is that Concession Ireland Ltd. had exclusive occupation of the premises and that the Defendants had no part in the running of the business. 

	However Mr. Lawlor also said that his Company had held the premises under a “written agreement” with the Defendants.  He had not available to him a copy of this agreement but he stated that, under its terms, he was precluded from carrying out structural works in the premises.  

EFFECTIVE CONTROL.
	It was this latter aspect of the case which appears to have caused concern to the Health Board and perhaps also to the learned trial Judge.   But the argument appears to me to be invalid.   My reasons for this opinion are:- 
                 
1.	The Health Board in fact secured convictions in the present case against Concessions Ireland Ltd. in respect of all charges including those charges which appeared to touch upon structural alterations.
2.	If, as appeared quite possible, Concessions Ireland Ltd. held the premises under some form of tenancy agreement it could have carried out the structural repairs demanded even if the landlord refused permission.

	Mr. Dermot Kelly, S.C. who appeared for the Health Board, very properly drew the Court’s attention to Section 38 s.s. 4 of the Health Act, 1953 which provides as follows:-
“Where any repairs, structural alterations or additions to premises are required by any authority enforcing regulations under Part V of the Principal Act to comply with those regulations-
(a)	 the repairs, structural alterations or additions may be carried 
	out notwithstanding any covenant, agreement or condition in any 
	lease or other contract of tenancy under which the premises are 
	held.
(b)	 before the repairs, structural alterations or additions are carried
	out, the person required to carry them out shall-
	(i)	if he is not the rated occupier of the premises inform the 
		rated occupier and
	(ii)	if he holds the premises under a lease or other contract of
		tenancy, inform the immediate landlord or his agent.

3.	The Health Board can in certain circumstances apply to the District Court for a Closure Order prohibiting the operation of a food business from the premises in question pursuant to the provisions of the Food Hygiene [Amendment] Regulations 1989.
4.	There may be circumstances in which the Health Board would be entitled to prosecute the owner of the premises as distinct from the owner of the business.

CONCLUSION.
	However it is important to remember that, in the present case, the prosecution was brought against the Defendants as proprietors of the business and not as proprietors of the premises.  No doubt there may be many ways in which a landlord or licensor can influence the way a business operating from his premises is carried on.  But that does not mean that he can be regarded as the proprietor of the business. 

	The question posed by the learned trial Judge in the case stated is as follows:-
“Whether I was correct in law in holding that the Appellant was on or about the 28th day of July, 1996 the ‘proprietor’ of the food business carried on at the main Cafeteria, Hogan Stand, Croke Park, Dublin 3 within the meaning of Article 25 of the Food Hygiene Regulations of 1950, statutory instrument no. 205 of 1950”

I would answer the question in the negative.

jb247