Licensing schemes are provided for a range of public policy reasons. There is generally a need to protect the public, so that only persons who are qualified and regulated may undertake a particular activity. The public is protected by ensuring that persons conducting the relevant activity are of good character and are subject to on-going requirements and conditions.
The nature of licensing and regulatory authorities vary considerably. Local Authorities may license activities such as polluting activities and waste collection. The Courts, in particular, the District Court, license a range of activities associated with public order and intoxicating liquor.
Government Departments license a range of activities within their respective areas. For example, the Department of Agriculture a licenses ranges of activities in relation to agriculture. The Gardai license or are involved in the regulation of many activities including firearms, gambling, and house to house collections.
Specialist regulators and licensing bodies have been established by statute to regulate particular businesses and professions. In other cases, non-statutory bodies have been recognised by law or are recognised in practice as licensors in their particular field. There are statutory regulators in relation to law, medicine and health professionals. Non-statutory regulators are recognised by statute in areas such as accounting.
Licences and Authorisations
Licenses are usually granted for a fixed period of the year. There may be a renewal process, which is similar to or is less elaborate than the original application process. In some cases, the renewal is automatic unless complaints have been made or a specific challenge is taken. Because of the severe consequences of revocation, rigorous requirements will usually apply.
There is usually provision for an appeal against the refusal, the imposition of adverse conditions and revocation of a license. The appeal may lie to another agency to a court. There is a range of possibilities. Sometimes, there is an appeal from an administrative body to a court. There may be an appeal from an administrative body to another administrative body. There may be an appeal from one court to a higher court, as in the case of liquor licensing
Enforcement of the licensing scheme may take place through administrative action and/ or prosecution. Many statutes provide that breaches of the licensing requirement or conditions constitute an offence which may be prosecuted. Contravention may be prosecuted summarily in the District Court, or in some cases, there may be provision for very serious breaches to be tried on indictment in the Circuit Court. Many licensing agencies undertake prosecutions themselves.
Legislation commonly provides for investigation and enforcement through civil and administrative procedures. There may be provision for an application to the court in order to restrain unlawful activity. Some legislation may provide a special summary application to the court for an injunction. In other cases, administrative notices may issue requiring a specified matter to be rectified. Breach of the notice may constitute an offence. Administrative sanctions or “on the spot fines” are commonly found in modern legislation.
Licensing authorities typically have investigatory powers. The relevant legislation may allow for authorised officers to enter premises, inspect and take copies of records. Persons at the premises will generally be obliged to assist and comply with requests. They may be obliged to assist in working computers, et cetera. Failure to co-operate will be an offence.
In some cases, the license holder and its employees may be required by the investigatory officers to answer questions and provide information. Failure to answer or co-operate will be an offence. The compelled replies will not generally be admissible in criminal proceedings. Obstruction of the investigating officer will be an offence. Where a private residence is entered, a warrant is generally required. Access may be given by consent. In some cases, the Gardai may be called upon to assist enforcement investigatory powers.
The question arises as to whether some of these investigatory powers might infringe the constitutional principle of the privilege against self-incrimination. The courts appear to allow evidence obtained under compulsion of criminal sanction, to be used in administrative or disciplinary proceedings. They may not generally be used in criminal proceedings.
Proprietary Rights in Licences
A significant issue which has been the alleged proprietary nature of licenses. The general view has been that licenses are privileges, rather than rights. Generally, the courts have accepted that the State may change the law notwithstanding, that this may interfere with or wipe out, the price or value which might formerly have been procured for transfer of a licence.
The exact nature of the license depends on the relevant legislation. Most licenses are not transferable. In some cases, licenses have acquired the characteristics of property rights, which can be transferred. Some licenses have personal elements but are capable of transfer. For many years, public service vehicle or taxi licences were effectively saleable commodities.
Some licenses attach to property. In these cases, the suitability of the property for the relevant activity is effectively certified. Intoxicating liquor licenses are in a special category and attach to the land concerned. They have a personal element, in that the suitability of the holder must be established, in order to complete the transfer. They are transferable from licensee to licensee as the business is bought and sold. They effectively transferable from premises to premise by a process involving extinguishment of one license and revival of another license in place.
Registration and Revocation
Most licensing schemes involve the maintenance of a central register of licences. They are usually available for inspection by the public. In the era of information technology, the register may be available online. The register provides transparency and allows the public to vouch that the person concerned is duly licensed.
The refusal or revocation of a license may be undertaken in order to protect the public. It may be based on grounds of culpability, unsuitability or lack of competence, It may or may not be n the nature of a sanction. If will not generally be punishment in itself. However, serious misconduct may be such as to justify revocation in the public interest. The effect of revocation of a licence or striking off from a register may have serious consequences and in some cases may deprive the holder of his livelihood.
Revocation and Constitutional Rights
Difficult questions arise in relation to revocation of licenses. The general expectation is that provided the licence holder does engage in serious misbehaviour, or show himself to be incompetent to a significant extent, the license will continue to be renewed. The principle of legitimate expectations may apply.
A license holder may have undertaken considerable investment. If he was to be deprived of a license on non-culpable grounds or where minor culpability only is involved, this may constitute an unconstitutional deprivation of livelihood
Quantitative restrictions on licensing may be argued to be necessary in order to sustain the viability of existing license holders. In modern times, competition law considerations arise. It is generally contrary to modern competition law to provide restrictions on competition without good grounds that can be justified in the public interest. There may be a permissible trade-off under competition law between the maintenance of standards and restriction of the freedom to compete.
In some cases, the courts have found that quantitative restrictions on entrants to the business, by means restricting numbers, are not permitted by the legislation,. As such cases involve judicial review, the court will not second guess the merit of the decision. Rather the question will be whether the decision is legal in the sense of being one which could recently be made under the legislation.
Licensing authorities may impose restrictions on numbers where this can be justified by reference to the quality of service. If the scheme can be upheld as a rational exercise of the relevant power, the courts will not interfere. However, a scheme which is reasonable at one time may become unreasonable by failure to adapt to changed circumstance.
McMahon Legal, Legal Guide Limited and Paul McMahon have no liability arising from reliance on anything contained in this article nor on this website.