As I understand the Bill, it is intended to be all-embracing. It seems to me that may not be so under Section 1 and I should like the Minister to look into it. It is specifically stated that hotels which are registered are included but the section defines a hotel as "an establishment which provides or holds itself out as providing sleeping accommodation, food and drink for reward for all comers." It occurs to me that a guesthouse or some other establishment which is not registered under the Tourist Traffic Act and which, at the same time, the Minister had intended should come within the framework of the Bill, in fact will not come within it, if it takes the simple precaution of putting up a notice in the porch to say it reserves the right to refuse admission or entry. It would seem to me that if they do that, then the position is that they can say: "We are not holding ourselves out as prepared to take all comers because we are reserving the right to refuse entry." I should just like the Minister to examine that point.
Committee on Finance. - Hotel Proprietors Bill, 1962— Committee Stage.
Would it not be better anyway in the definition, to say after "without special contract" and "without prejudice to the generality thereof includes every establishment"—which is the normal way of drafting in a deed the particular inclusion? I take it the Minister does not want the inclusion to prejudice the generality?
I do not, no.
Would it not be wiser to put that in? It cannot do any harm. It would take it out, without any possibility——
The definition here has been fairly carefully drafted. As Deputies opposite will realise, there was an Australian decision recently which more or less set the cat among the pigeons and the definition and the Bill had to be very carefully drafted, having regard to that decision. However, I do not think an establishment could contract out simply by putting up a notice. It is something I will look into.
In order to be in the Bill, they must hold themselves out.
That is true.
And if they say: "we do not hold ourselves out", it seems to me they may be out of the Bill.
I think they would be out. We only want to include inns; in other words, places which do in fact hold themselves out as prepared to receive all comers.
If they want to dodge the Act?
The corollary is this. If you hold yourself out to receive all comers, then the Bill goes on to make you receive all comers and you will have certain obligations and liabilities towards them. If any establishment such as a particular guesthouse does not wish to appear to hold itself out to receive everybody, it would be outside the scope of the Bill.
That is precisely the reason I asked if the Minister intended the Bill to be all-embracing?
Only all-embracing in so far as hotels are concerned— hotels which do set themselves up and hold themselves out as ready to receive everybody who comes.
I want to be clear. I am not objecting to this. All I want is clarification. If it does recognise that the possibility of contracting out does exist and if that is the Minister's intention, well and good.
In fact, it is the intention, and I think the House should agree on this, that guesthouses should be outside the Bill.
I am not sure.
Maybe there is scope and need for separate legislation governing guesthouses but in this Bill anyway we are concerned only with what were formerly inns and which we now propose to call hotels.
Surely, there ought to be a more detailed definition of hotel in Section 1 ?
What does Deputy Corish mean?
A guesthouse is a place that holds itself out as providing sleeping accommodation, food, drink and so on.
No, not for all comers.
The big snag about it is the fact that if you leave it open for any number to opt out, surely there would have to be separate legislation to cover those who opt out. Otherwise you will have one group covered by law and the other group not covered?
May I clear up a fundamental misconception that seems to exist here as to the purpose and scope of this Bill? This Bill sets out to regulate the relationship obtaining between a hotel proprietor and his guest. That is all it purports to do and, as I say, we incorporate into the motion "hotel" any establishment which holds itself out as willing to receive anybody who comes along. If it does not do that, it is not within the scope of this Bill at all.
I beg the Minister's pardon. Would the Minister repeat that?
We define the establishments which are to be covered. We define "hotel" and the definition governs only those establishments which hold themselves out.
No. It is "provides or".
Yes; I am coming to that.
That is why I asked the Minister to repeat it because I could not believe my ears.
The fundamental notion here is that we have certain types of establishments which up to now were known legally as inns and which from now on we propose to call hotels. These establishments are such that, by their very nature, they hold themselves out to receive anybody who comes along. Once they do that, we proceed from there to say: "very well; if you are that type of establishment, you are going to be subject to certain obligations and liabilities and you are also going to get certain privileges and advantages; but, if you are not that type of establishment, then this Bill does not concern you at all". The Bill is concerned only with the relationship between a guest of this type of establishment and the establishment itself. If regulations have to be made about guesthouses, lodgings, etc. then that is a matter for Bord Fáilte, perhaps, or the Department of Transport and Power or some other Government agency. But here we are purely concerned with the particular legal relationship between the guest of a hotel and a hotel itself.
Deputy Sweetman is quite right when he says we go further than that. We do go further. We have decided that it would be a beneficial thing to include in that definition of "hotel" all hotels which are registered as such with Bord Fáilte. The reason for that will be obvious. It brings a certain amount of precision and clarity into the situation so that anybody who is going along to a hotel which is registered as such with Bord Fáilte knows for a certainty that he is covered by the terms of this Bill and that all the various obligations, duties, and so on, laid down in the Bill will apply to the establishment in which he is staying.
That may be what the Minister intended to put in his Bill but it is not what he did put. " `Hotel' means an establishment which provides... sleeping accommodation, food and drink for reward for all comers..."
For all comers, yes.
For all comers— anybody who comes along. There is no part of the holding out necessary; it is either the holding out "or" the provision. It is not "and".
I agree.
The position therefore is that a guesthouse, shall we say, which does not have an advertisement sign out but which, if they have a room free, can give accommodation to anyone who comes along, if it is reasonable for them to do it—the word "reasonable" is mentioned there— they are in this, according to the definition. I do not know whether the Minister intended to put them in or not but they are in it, according to the definition except for one thing. They are there in the generality. There is a specific inclusion of hotels registered under the Act, but remember there is a register of guesthouses under the Act, and you could quite well say that because the inclusion is there of hotels under the Act, the effect of that inclusion was to contradict the generality of the earlier part. I do not know what the Minister wants.
The Minister, Deputy O'Higgins and I occasionally travel through the town of Ballinasloe. There is one guesthouse there that is not a hotel. It is a guesthouse and it has an advertisement outside it that it obviously holds itself out as providing accommodation. The Minister probably knows it as well as Deputy O'Higgins. It is just on the Loughrea side of the turn in Ballinasloe. That holds itself out. That, the Minister would intend to be included. At the other end of the town, I know a place that will take anybody in. There is no advertisement as such outside at all. I think that is also included. Is that what the Minister intended? If it is what the Minister intended, why does he run the risk of what is there in the first part of that definition being excluded by leaving out the word "without prejudice to the generality thereof"?
Is it possible for a hotel to be in existence and to trade without being under Bord Fáilte?
It is.
In that case——
I think there is too much of a "Come-all-ye" in this Bill. You can put hotelkeepers into the embarrassing position of having to accept undesirables. You can put them into the position of having to accept, say, a Communist element that could come to this country and you can cause undue embarrassment if you leave them wide open without some qualifying chance. You can have the Jehovah's Witnesses coming to them. I could go on all night.
You might even have a Fine Gael convention.
Or a Fianna Fáil cumann.
The point which is really at issue between Deputy Sweetman and myself is that all that is happening is that we are getting confused between names.
Without intending to be rude, I think the Minister is—I am not.
Maybe I am, but I will try to make myself clear. It does not matter how a particular establishment is known as to the general public. It might be called a lodging house or a guesthouse or it might be called a hotel. As long as it is either providing board and lodging for everybody who comes along and holds itself out as willing so to do without special contract or as long as it is registered with Bord Fáilte as a hotel, then it is within the Bill and we intend it to be within the Bill. The essential thing about the sort of establishment we want to include in the Bill is that it is holding itself out as providing accommodation for all comers. Once it sets itself up to do that and in fact does it, then we say it is a hotel.
Then in fact it includes hotels and guesthouses.
It may. If there is the "Ard na Mara" guesthouse in Enniscorthy and that establishment, despite the fact that it calls itself a guesthouse, either provides board and lodging for everybody who comes along or advertises, that it will do so, then it is in, no matter what it calls itself.
There are many houses around the country and whilst it is well known that they take in guests and provide breakfast, they might advertise or describe themselves——
It does not matter. If you have an establishment which, consistently and as a matter of practice, accepts everybody who comes along and gives them meals, or sleeping accommodation if they require it, they are in.
If there is a hotel that excepts somebody, let it be a Fine Gael convention or a Fianna Fáil convention——
They are out, unless they are registered in the Bord Fáilte register.
If they except half a dozen people, that lets them out?
If they are registered as a hotel with Bord Fáilte they cannot opt out.
Is that not going to make these subsequent conditions pretty tough on these people who do not advertise themselves as hotels or guesthouses? However, that is another day's work.
I do not think so, because the whole thing is, if you like, a matter of corresponding liability. If you go into a certain type of business, and maintain a certain type of establishment, then you must accept these liabilities or obligations. We say that the obligations and liabilities and duties arise out of and are a direct responsibility of your setting yourself up as a particular type of establishment.
We all appreciate what the Minister is trying to do and everybody is with him, but I think it is going too far to appear to burden, so to speak, private houses with a lot of the things included in the subsequent sections.
That is just the point on which I raised this matter. All of us, if we cast our eyes around the country, can think of hotels, whether they call themselves hotels or are entitled to call themselves hotels or not—establishments which are in fact, in the ordinary person's designation hotels, but which may not be registered with Bord Fáilte. They may carry on under the name of guesthouse or anything else. The position as far as I can see under this Bill is that those who are registered with Bord Fáilte are to be faced with heavy liabilities. Some of those obligations and liabilities exist already in the common law. I do not think they all do, but probably most of them do. Now we seem to be arriving at a stage if there is an exclusion allowed under the terms of the Bill where it will be a very definite advantage to establishments that they should not allow themselves to be registered with Bord Fáilte and simply by providing a notice on their notice board, they may make it quite clear they are not coming in under the terms of the Bill. You may have on different sides of the street two establishments——
We must not push this question of the notice too far. It will be a question of fact. They will not be able to get out of their obligation by putting up a notice.
It might be a question of fact on provision but it seems to me that if I put up a notice saying I reserve the right to admit certain people, and if I exercise that right even once, I am in a position to give evidence of it. I think I could satisfy a court that I do not provide for all-comers if I refuse as much as one person. The point——
You might lose your bar licence.
You might have similar establishments on different sides of the street providing virtually the same service. One of those may be liable for the onerous provisions contained in this Bill; the other may not. That seems to me to be an anomalous position and all I want is to ask the Minister to consider it further.
The Minister said they might lose their licence.
I am just thinking of the implications from the Intoxicating Liquor Act point of view.
This does not refer only to an alcohol licence.
Take the case of a seaside resort where certain people advertise that they have accommodation available in the summer season. Normally they do not do it during the year. It is a very useful service and many people avail of it, people who normally would not be able to get accommodation. If they do that, do they come under the Bill?
If they do what?
If they advertise and say they have accommodation— people who are just giving tourist accommodation for the purpose of making a few pounds during the summer.
If they advertise that they are prepared to receive and feed and provide sleeping accommodation for anybody who comes along looking for that accommodation, they undoubtedly come within the scope of the Bill.
The old lady with two rooms—is she running a hotel within the meaning of the Bill?
Would she be required to provide supper at midnight, if somebody asked for it? That is not clear from this Bill.
What about the person who puts up a notice reserving the right of admission? Does he opt out?
It depends.
What type of establishment is covered by an innkeeper's licence? Must not hotels get some sort of licence? Would that be all-embracing for the Minister's purpose?
No. There is no such thing as an innkeeper's licence.
There is some sort of certificate.
That is the present notice, what we are doing away with in this Bill.
I think the Deputy means a hotel licensed under the Intoxicating Liquor Acts. Might I make this suggestion to the Minister, if he does not like my phrase "without prejudice to the generality thereof"; more normal drafting would be to delete the words "and includes every establishment" and put in instead "or is an establishment which provides or holds itself out as providing or is an establishment registered ..." That would be much more consistent drafting all the way through.
Yes. I am not sure. I shall certainly have a word with the draftsman about it. It seems to me to be absolutely clear that the present phraseology brings about the situation we want. The mere fact of registration with Bord Fáilte as a hotel will bring the establishment within the ambit of the Bill and, indeed, will supplant the other two requirements.
Agreed that registration is enough, by bringing registration within the ambit, one should not have other exclusions.
It is the word "includes" that seems to worry Deputy Tully.
What about Deputy Dillon's old lady who only takes all-comers in the month of August and, for the other 11 months of the year, does not take anyone? Is she in or out?
Whose practice is to give bed and breakfast.
I think she is out.
She advertises. That is the trouble.
But she does it by contract.
If she receives people by contract, then she is definitely out.
That is not the practice.
If she advertises to the effect that she is prepared to take anyone who comes and give him or her a meal and a bed for the night, then, as long as she does that, she is a hotel.
In other words, you can be in the Act for portion of the year and out of it for portion of the year.
Suppose she advertises that she will accept ladies during that period but she will not accept gentlemen?
I think it is a question of fact as to what a particular establishment does or does not do.
Suppose she advertises that she will take people who make bookings beforehand, some days or weeks in advance, and give them bed and breakfast, or three meals a day, would that exclude her? Suppose she advertises in the local or national papers at the beginning of the season that in the months of June, July and August, she will accept boarders, would she be required, by the mere fact of putting that advertisement in the press, to serve a meal to some casual who might come along?
The definition provides that she must be prepared to accept all comers. It seems to me that, if she stipulates she will receive comers only during certain months, then she is not holding herself out to receive all comers.
But she might be holding herself out to receive all comers during these months.
There is the snag that during the summer season certain hotels and guesthouses have a habit of sending what they call the overflow to private houses. There is usually a regular supply.
That would be out. That would be under special contract.
If they are hotel proprietors, they have a duty to provide without special contract under Section 3.
There is no special contract. They just tell the people that they cannot accommodate them but, if they go to so-and-so's house, they will accommodate them. That is quite a common thing in the seaside resorts. People come along without any warning. If there is accommodation, they are provided for. If there is not accommodation, they will be told to try somewhere else. Does that mean that those who accommodate such people will be included in this?
All these things will have to be decided as matters of fact. It seems to me that a person sent from a hotel to a particular house, private or otherwise, would be going to that house under special contract. The house would have a special arrangement with the hotel.
No. All they do is to tell the people that if they go to a certain house, they will be accommodated. I admit these are all hypothetical questions.
Let me give an example to the Minister because it is only by examples that we will get to know what this is all about. Take the ordinary house in a town with a cardboard notice in the window that boarders will be taken and will get bed and three meals——
Bed and breakfast.
Or even three meals?
The very use of the term "boarders" implies that you have entered into a special contract.
What about bed and breakfast?
That is the usual thing.
That is not out. Surely that is in.
No. If you are prepared to receive people on bed and breakfast terms only, then you are not prepared to receive all comers.
But you do not specify that. The notice just says "boarders". It means everybody.
It does not say they have got to get a bed and be served food and drink.
The point I was about to put to the Minister is that a hotel means an establishment which holds itself out as providing sleeping accommodation, food and drink for reward for allcomers under special contract. The case has been made that you have quite a number of holiday resorts, such as Bray, where during the summer season, these services are provided but are not provided outside the summer season. It may be a question of fact, but it seems to be extraordinary, when discussing this Bill, that if you are in any doubt in the first section as to whether or not you can have a situation where people run hotels within the meaning of the Act for a couple of months of the year, they are thereby hotel proprietors for a couple of months of the year, and are not hotel proprietors for the remainder of the year. It makes a very great difference to their duties, obligations and responsibilities.
The seaside hotel, which closes down for the winter, would be a case in point.
Are they entitled hereafter to shut down?
I think so because the definition of hotel is relevant only in so far as the services are being provided. Once they are provided, or are advertised as being provided, then the place is a hotel so long as that set of circumstances obtains, with all the liabilities and obligations attaching to it as a hotel. Once these circumstances do not apply, then the liabilities and obligations cease.
Under Section 3, they have a duty to receive allcomers, have they not?
They have.
I wonder what the situation will be in university cities which cater for students during part of the year?
Special contract. These places are not hotels at all.
When the universities close during the summer, these places become guesthouses. They are mixed establishments, so to speak.
You can more or less safely forget all about guesthouses, lodging houses, student residences, and that type of establishment, because all these establishments invariably take people in on special contract. There might not be a written contract, but there is an implied contract as to the terms, conditions, and so on, under which a person is kept, and these establishments are not hotels within the meaning of this Bill at all. This Bill deals with an establishment which says: "`I am in business as a hotel and anyone who comes along here will be taken in without any special contract."
One final point which ties in with Section 2 about the proprietors of guesthouses or any establishment which the Minister thinks will not come within the framework of the Bill. It may be that under the existing common law, they are innkeepers, and if a court were asked to decide on any particular one of them today, it might decide that the proprietor is an innkeeper.
A particular type of lodging house?
A guesthouse, I am thinking of particularly. Under the next section, we are providing that this Bill will replace all existing common law obligations and I am just a little afraid that, by doing that, we are removing the existing common law obligation. There are establishments which do not come under the provision.
I do not think so. The whole purpose of Section 1 is to include as a hotel any establishment which at the moment is at common law an inn.
We can raise that point on the next section.
Are holiday camps included?
No; they all have special contracts.
Not all.
If not, they are in. If they hold themselves out as hotels, they are in. You have to get up at 8 o'clock in the morning and do exercises.
You do not. Is there no special contract——
Deputy Tully knows more than I do about them.
Are residents of holiday camps covered by legislation generally?
They are covered by the contract they enter into.
In these cases, you enter into a special contract with the holiday camp and you are covered by the terms of that contract. So far as I understand "holiday camp" in the normal sense of the term, such a camp is not included in this Bill. These places do not hold themselves out as willing to provide board and lodging for anyone who comes along.
Are holiday camps not included under Part III?
No, because——
They have got to register. There is a register of holiday camps.
Not as a hotel.
It is as clear as mud. I thought I understood it at the beginning, but now I am satisfied I do not understand it at all.
The Deputy should not apportion blame for that.
I notice that the First Schedule does not specifically relate to registration under Part III. It says: "...includes every establishment registered as a hotel with Bord Fáilte Éireann."
"As a hotel."
Yes.
Section 1 stand part?
Until tomorrow.
I should like the Minister to look again at the point I mentioned briefly a few moments ago. It is provided under Section 2 of the Bill that all existing duties, liabilities and rights under the common law relating to innkeepers are now being replaced by this Bill, so I think it is a fair assumption hereafter, if this Bill passes, to say that the entire law in relation to the duties, rights and liabilities of innkeepers are contained in this Bill.
That is the intention.
I am concerned about the position of the establishment that does not come under the Bill. Surely the intention should be that whatever rights, duties and obligations now exist under the common law will continue to apply to these establishments, if there were a fair case for saying that up to this they were inns and their proprietors innkeepers. In other words, is the Minister quite clear that by the operation of Section 2 he is not lifting various duties and obligations entirely from quite a number of establishments?
I am quite satisfied that any establishment which was an inn before is now a hotel for the purposes of this Bill. All we are doing in Section 2 is wiping out all the liabilities and so on which attached to inns. If all inns are in, Deputy O'Higgins's fears are groundless. Section 2 does not remove any establishments from the obligations imposed on innkeepers. All establishments which were formerly inns and all liabilities which applied to them are covered in the Bill. I think that is clear.
I do not think it is clear, with respect. I think it is the intention, but the Minister has tried to get a definition which will bring all those in and I am not entirely happy that he has, because it is a question of fact at the moment for the court to decide whether an establishment is or is not an inn.
The principles on which it would be decided are now written down clearly in subsection (1) of Section 1.
It seems to me that the old landlady of the seaside hotel is both in and out.
The point has been made to me that there is a peculiarity in the drafting of Section 3 as compared particularly, shall I say, with the drafting of subsection (1) of Section 6. If you cut out certain words which are merely descriptive, Section 3 reads: "The proprietor of a hotel is under a duty to receive all persons without special contract". Is he not also under a duty to receive people who come with a special contract?
Sorry?
I shall repeat it. Section 3 means that the proprietor of a hotel is under a duty to receive all persons without special contracts.
As guests.
Is it not the position that the proprietor of a hotel is under a duty to receive, as guests, all persons whether with or without special contracts?
If he receives a guest under special contract, then he is receiving him in a contractual capacity.
This could apply to some guests and not to others.
The concept of "guest" is important there because it excludes the common law notion of "lodger".
I understood it was intended to cover all establishments. Now we are dealing with the situation where it may not cover an establishment in relation to certain of the——
That is true. A hotel under this Bill will not incur certain of these liabilities and obligations to a person who goes under a special contract.
Supposing I write to a hotel which is registered under the Tourist Traffic Act, to make it clear——
You understand it is a hotel.
——and say I am booking myself in for a week, I come in, or I should come in anyway, under the terms of this Bill, just as much as the man who presents himself at the door, rings the bell and asks if they have a room for the night.
You are a guest.
This is the point where Section 3——
Section 6 is the relevant section.
Section 6 is different. That is what worries me. It says: "...whether or not under special contract..." and Section 3 does not.
He is a guest in both cases, but a different obligation is invoked.
I will ask the Minister to examine whether or not Section 3 in relation to hotels overrides the intoxicating liquor laws. It seems to me that under this Bill a person is entitled to knock at the door of a hotel, demand a drink, and get it. The proprietor must give it. I shall have more to say on Section 3 later.