A District Court Judge in Louth was asked by lawyers for the HSE on Thursday 2nd December to grant a cessation order on foot of a compliance notice dated the 5th November 2021 which had been served upon Niall McGuinness the owner of a well known cafe in Dundalk Town known as 3rd Place Coffee House.
The Cafe had recently been served with a compliance notice by a number of HSE compliance officers appointed under the Health Acts 1947-2021 (as amended) otherwise known as the Indoor Dining Legislation. The Cafe was resisting the application whilst the HSE were seeking to shut the Cafe down by way of a cessation order for seven days.
The HSE Environmental Officer, Ms. Mariesa Rushe gave evidence to the Court that she was of the view that the Indoor Dining Legislation was not being complied with at the Dundalk Cafe following checks she had conducted on a number of dates in early November. She gave evidence that the Cafe owners felt that the legislation was discriminatory to his loyal customers who had supported him throughout the pandemic. Ms. Rushe formed the view that he was not complying following her conversation with Mr McGuiness. The HSE Officer later referred to social media outlets which she had examined as part of her investigation when she discovered a ‘facebook post’ which recorded the fact that the Cafe would not be requesting proof of vaccination from their customers regardless of Government policy.
Ms. Rushe contended that the Cafe were not recording eligibility for entry (by requesting proof of immunity and proof of ID) on to the premises and were allowing unvaccinated customers to enter the cafe premises (an indoor premises) to consume food and beverages.
Oisin Collins SC for the Cafe owner (instructed by PB Cunningham & Co) cross examined Ms. Rushe and an issue arose as to the evidence which she had given to the Court that the Restaurant were allowing unvaccinated persons (or unpermitted persons) to enter the premises and that this was the mischief which the Compliance Notice was intended to remedy. However, it was put to her that the Compliance Notice just simply did not say what Ms Rushe thought it said nor what she wanted or needed it to say.
Mr. Collins informed Ms. Rushe that she was probably aware of recent District Court proceedings in Galway where an identical legal issue had arsen and the District Court had found that the compliance notice did not require customers to be excluded from entry.
Ms. Rushe was re-examined by Mr. Dermot Scanlon, an Offaly based Solicitor representing the HSE who reminded Ms. Rushe of the precise wording of the Compliance Notice, reciting particular sections of the notice to her. Following an exchange between Mr. Scanlon and Ms. Rushe as to what she was in fact complaining about in the Notice, Mr. Collins SC for the Cafe interjected and objected to the fact that Mr. Scanlon was clearly leading his witness and that her evidence was now materially different to what she had presented earlier in the legal proceedings. Ms. Rushe completed her evidence and the HSE’s second witness was not called. A precis was available and her evidence was not uncontroversial.
Mr Collins stated that given the nature of the application (whilst not entirely criminal) and the sanction – i.e. the closure of the business for 7 days is a severe and draconian sanction and that therefore the Court needs to be satisfied that there is a defined, clear and unequivocal breach of a compliance notice. He said that the compliance notice doesn’t in fact require what the HSE said it requires – which is that 3rd Place Coffee House should be refusing entry to unvaccinated persons. The Compliance Notice simply didn’t say so.
Following the HSE’s evidence to the Court, District Judge, Mr. Justice Brendan O Reilly directed an exchange of written legal submissions. He listed the matter for mention on the 8th December 2021 next when a date would be found for an adjourned hearing of legal argument on the matter.