Charges of allowing minors into Listowel nightclub dismissed
A LISTOWEL nightclub that had inadvertently admitted two underage customers on Valentine’s weekend of 2019 will not face closure as a result as the premises had shown the pains it had taken on the night to make sure no minors slipped through the system.
Barrister Donal Cronin argued successfully that Liam O’Flaherty of the Mermaids Ltd had exercised reasonable diligence – the sole defence open premises in such cases.
The Mermaids was charged with two counts of allowing a person under the age of 18 to be on the premises while it was open to the public under the terms of an exemption order. It contested the charges before Judge David Waters at Listowel District Court on Thursday.
Sergeant Liam Kelly of Listowel Garda Station informed the Court he conducted an inspection of the premises at 1.45am on February 17 of 2019. He spoke to a youth he suspected was underage, who initially produced his wallet which contained a card with a name on it.
The Sgt said his suspicions were further aroused as he knew the person named on the card, and that it was not the youth before him. It later emerged the youth had a different Christian name to the one shown Sgt Kelly.
Head of security Ciarán Clarke told the Sgt that the youth had produced identification to him and another security person earlier in the night.
after seeing the first youth safely into the care of an adult, to discover another youth at the entrance to the nightclub.
That youth produced a passport to the Garda with the date of birth shown as July 31, 2001. “This person openly told me that his age was 17.”
Mr Clarke informed Sgt Kelly when he presented the youth to him that ‘I would have [met him at the door] but I don’t recognise him’.
Mr Clarke - who had years of experience in his trade – told the court the club had operated a system on the night designed to protect against underage wouldbe patrons - and that up to 70 had been refused admission as a result. One young member of staff was tasked with monitoring faces on CCTV among her age group
could have employed to prevent against underage people gaining entry. He replied: “I believe we exhausted every avenue open to us, we had also put up warnings on social media about the need for identification.
“I have worked all over Ireland and no other nightclub goes to the length of having a second entrance to monitor ids. This is something Liam brought in himself.” Garda Inspector Michael Fleming asked Mr Clarke as to what his idea of ‘ examining’ identification is.
He explained he would take time to ascertain if a driving licence or passport might be fake, but not as much time with a National Age Card as he explained they are far harder to fake.
Insp Fleming quizzed Mr Clarke on his inspeciton of the first youth’s credentials. “You didn’t take the wallet from his hand or remove the card or handle it?”
“No,” Mr Clarke replied. He told the Insp he could not remember the name on the identification he was shown, but that he viewed it through a clear plastic film in the wallet.
“I have to put it to you that you were negligent in the level of inspection you applied to that identification and as a result this man gained entry.”
“In 20 years doing this job I have never seen a fake National Age Card...I saw the photo and the name clearly,” Mr Clarke said.
Inspector Fleming repliec: “Perhaps if you had taken it out you would have seen it was for a different person’.
Mr Clarke told the Court he took physical possession of the green driver’s licence produced by the second youth in order to examine it.
“When I heard he was underage I was totally confused,” he told the Judge.
Asked by the Inspector if he would have expected security to have been ‘ more diligent’ about checking the identification of people unknown to them Mermaids owner Liam O’Flaherty said: “Yes, anybody else but Ciarán Clarke.”
Following witness testimony, Mr Cronin argued that The Mermaids had exercised due diligence to the utmost on the night - meeting the defence open under the Intoxicating Liquor Act in such cases.
“Mr O’Flaherty had in place a proper and safe system of controlling people’s entry to the premises. He had in fact a double check in place in these circumstances; he had experienced staff deployed widely to carry out the work and it all took place under the gaze of cameras which he himself monitored.
“It is a fact that people came onto the premises...but not a fact they came onto the premises unchallenged. The general thrust of the evidence is that they engaged with staff and eventually duped them,” Mr Cronin stated.
Judge Waters said the test regarding the id check was if it was reasonable, asking Insp Fleming for his thoughts.
“I would argue absolutely not. If you were to reduce it to the level of a person producing id in a wallet through a plastic sheath, the threshold it would create would be so low...I believe the Act places a far higher level of due diligence.”
Judge Waters remarked: “What I can’t do is punish someone for a reasonable mistake from that point of view. There are many pubs with no checks in place.” Outlining the Mermaids’ checks once more, the Judge said: “I think that is due diligence. I can’t convict him because he made a mistake...I think it would be wrong of me to say that due diligence was not in place,” Judge Waters said, dismissing the charge in respect of the first youth initially.
He dismissed the second charge also - following evidence from Mr Clarke that the id the second youth showed him had also been shown to other gardaí who inspected the Mermaids earlier in the night.
The Judge said:“This id was produced and he said he saw the same colour id being produced to gardaí earlier.”
Inspector Fleming pointed out that he had queried this recollection. “Given the nature of the event there is compulsory closure arising out of this...I would be very uneasy about closing a premises when an idenfitication was produced. It would be holding the licensee to a standard that would be very difficult to maintain.”
He said the licensee ‘might have been’ in trouble on the second charge had the Judge not heard evidence about the earlier garda check. “If it fools a garda it would fool Mr Clarke in exercising his due diligence.”
The Judge said the outcome might have been different had the youths been called on for evidence by the State, but heard the State ‘does everything in its power’ to prosecute such cases without involving the young people.