Analysis of Administrative Law Concerning Getting a Cannabis Premises License - Case Study Example

Problem A: Mr. Dougal Mr. Dougal: The Taylor & Associates Legal Services received your letter d April 2, 2008 and is more than happy to assist you who are one of our cherished clients. In your letter you stated that for some time you had been attempting to obtain a premises license from the Bumbling City Council in connection with your desire to sell cannabis under the Cannabis (Licensed Premises) Act of 2000. In each case you were perfunctorily turned down without apparent justifications. You likewise stated that the last time you requested to appear before the said Council to put your case personally, you were, as usual, turned down. At the outset, let me tell you that the Bumbling Council in refusing to grant you a clear basis for their refusal to grant you a premises licence has treated you unfairly and injudiciously in contravention of your rights under the law. There is an established procedure under our jurisdiction that requires every public body to provide the reasons for every decision they make, not only to apprise an individual why he was refused but for the reviewing body, in case of appeals, to determine the judiciousness of the decision. A case in point is the case of Eili v. Environmental Protection Agency1. In this case, a pharmaceutical company (The Notice Party) had been operating in Ireland for several years under an IPC Licence which the Environmental and Protection Agency had granted it since 1795. In 1995, however the Notice Party applied for a revision of the said licence in anticipation of its use of an incinerator within its premises to lessen the emission of highly volatile products. When the Notice party submitted its application it was met by objections from various parties like the Clare Action Against Incinerators, the Clare Green Party, Greenpeace Ireland. The EPA however eventually granted the Notice Party’s application. Ni Eeli went to court to question the judgment. Among the objections proffered by Eilii was that the decision of EPA was not supported by reasons. It was the contention of Etlii that when the RPA failed to give reasons for its decision it was a violation of her constitutional right because it prevents her from exercising her right to seek judicial review within the time frame allowed. The EPA, on the other hand, denied this charge stating that the reasons for the decision may be found in the licence itself like its terms and conditions, the “assessments and recommendations contained in the Chairman’s Report and the Summary Information for the Proposed Revision to the licence,” which are all public documents to which the applicant in this case has access. Although the Court in this case believed that the EPA gave the reasons as to why it decided to grant license to the Notice Party, the Court nevertheless cited various decisions in the past that have enumerated the necessity of furnishing reasons to a denied applicant. One of the cases it cited was that of The State (Creedon) v. Criminal Injuries Compensation Tribunal2 which states that “It would appear necessary for the proper carrying out of that jurisdiction that the Court should be able to ascertain the reasons by which the Tribunal came to its determination. Apart from that requirement which applies to this Tribunal as it does to a Court, that justice should appear to be done, necessitates that the unsuccessful applicant before it, should be aware in general and broad terms, on the grounds on which he or she failed purely. Merely as was done in this case to reject the application and when the rejection was challenged subsequently to maintain a silence as to the reason for it, and does not appear to me to be consistent with the proper administration of the functions which are of a quasi judicial nature.” In addition the Court also cited Anheuser Busch v. Controller of Patents3 which states to the effect that the duty of a Tribunal in acting in a judicious manner implies the duty to furnish reasons for its decisions because these “reasons are a necessary condition precedent to the appeal.” With regards to the duty of a Tribunal, it is obliged to act judicially, including an obligation to furnish reasons for the decision and particularly, when such reasons are a necessary condition precedent to the formulation of an appeal." The Bumbling Bee, in refusing to give you reasons for its denial of your application as well as to personally appear before them to appeal your case, has denied you your right to know why your application failed as well as the right to seek redress or appeal to a higher body because of the lack of basis for it. We hope that we have clarified matters adequately for you, specifically your rights under the law. In the event you have questions regarding, please feel free to visit us at our offices. Thank you. Problem B: Ms. Florence Ms. Florence: After reading your letter dated March 22, 2008, the MaCartney & Associates has come to the conclusion that your rights under the law has been violated by the Bumbling Bee Council. You stated in your letter that the said Council notified you that it was withdrawing your premises licence which was granted to you by virtue of the Cannabis Licensed Premises Act without providing you the reasons why other than merely stating the existence of an informant who gave evidence against you. It is axiomatic that the Bumbling Bee should have furnished you with the reasons why they are withdrawing your licence. The act of withdrawing a privilege without any reason understandable to the person whose licence is being revoked is a violation of his or her Convention right under the European Convention of Human Rights to the peaceful enjoyment of his or her possession. As you very well know the said Convention rights have now been guaranteed by domestic law under the Human Rights Act of 1988. Section 6 (1) of the aforesaid Act states that, “It is unlawful for a public authority to act in any way which is incompatible with a Convention right,”4 whilst Article 1 of the First Protocol of the European Convention states that persons, whether natural or juridical, has the right to enjoy peaceful enjoyment of his possessions. Furthermore “No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”5 That the right to engage in a gainful business which in your case was made available through the acquisition of a licence is a possession under the Convention Rights and an economic freedom has been so declared in many cases. And if this be the case, then the action of Bumbling Council in withdrawing your licence without any justification is a palpable violation of your right. This is what has been enunciated in the case of Rosenzweig and Bonded Warehouses Ltd. V Poland, 6 decided by the European Court of Human Rights. In the aforesaid case, Bonded Warehouse Ltd., was granted a right to operate including the right to export merchandise and Rosenzweig is its principal shareholder. However there were overtures that it should give bribe money to the officials of the Main Customs Office which it did not. Sometime thereafter the Applicant Company’s licence was ordered revoked and his office closed on the pretext that his licence was defective because it was not in conformity with an agreement with Germany. The company complained the revocation and closure for lack of legal grounds. Despite a letter from the German customs office that it has no objection to the company’s export operation in the border crossing, the Customs Office at Rzepin, Slubice revoked the company’s licence. When the company appealed, the Main Customs Office quashed the said decision “considering that the impugned decision had been in breach of applicable provisions of procedural law since it had not been given in any of the types of proceedings on the merits.” The Company asked that the meaning of the said decision be explained as it did not elaborate on the validity of its licence and the explanation was that the status quo was maintained before the decision was given, which means that the prior revocation of the revocation still stands. Thereafter the Main Office withdrew the licence on the ground that the company has not been operating for a considerable period of time. The pertinent part of the decision of the Court was the finding that “the withdrawal of valid permits to run a business is an interference with the right of the peaceful enjoyment of possessions guaranteed by Article 1 of Protocol No.1.” In addition, the public authority in revoking the licence of the company showed no legal or compelling basis for the revocation. For example, there was no argument or case showing that the company had been closed for any reasons of misconduct or that it was dishonest.  Ms. Florence, your situation falls squarely with the aforementioned case. The plan of the Bumbling Council to withdraw your licence without adducing any reasons therefore and worse, concealing the identity of the witness that purportedly offered information against you is a clear violation of your right to the peaceful enjoyment of your possession in accordance with your Convention rights. It is also axiomatic that the existence of any testimony that will prejudice your right to engage in a gainful employment should be revealed to you so will be given an opportunity to confront and refute, if need be.. Thank you and we hope to see you in our Offices soon. Problem C: Brian Mr. Brian: Greetings! The Raymond & Raymond Solicitors Ltd. is pleased to have received a letter from you. We are always ready to assist you in all your legal problems as we have done in the past. Your letter stated that you have a fervent desire to engage in the sale of cannabis in your area under the Cannabis Licensed Premises Act of 2000 but that you were disappointed to hear that your application was denied. From the tenor of your letter, we presume that you were not apprised of the reason for the denial of such application. This is highly irregular. Under the law, a public body has the obligation to inform a party, in your case an applicant, of the reasons of his decisions. This has been enunciated in various decisions in our jurisdiction. The rationale behind this is that under the due process clause, a person should know the reasons why his application failed. In addition, a party, as well as the reviewing court, must have a basis in case the party appeals or a basis upon which to determine the validity of the decision, in case of the court. This is the legal doctrine laid down in the case of Orange Communications Ltd v. Director Telecommunications. 7 In the aforementioned case, Ireland had announced that it would open a competition for the grant of licence to a new mobile telephone operator with the top ranking competitor to be granted the privilege of operating the third operator. One of the competitors was Orange. At the end of the competition, it was decided that Orange’s competitor was ahead in the race with Orange ranking the second. On that ground that he only took the second place Orange was officially denied the licence to operate. Orange questioned the decision of the Commissioner on the ground, inter alia, that the decision did not state any clear reasons why he was denied other than he did not get the top rank. The International Court gave weight to Orange‘s contention in finding that indeed the Commissioner did not present cogent reasoning and justification as to why she refused Orange the licence to operate. Citing the previous case of Securities Limited v. Secretary of State for the Environment, 8 the Court held that when there is an existence or requirement by a statute to give reasons the same should be: one, “proper, intelligible, and adequate,” two, the reason should be known to the party “without difficulty or undue research”; three, that the reasons cited therein should be clear to the party and therefore can be used by him especially in an appeal; four, that in the event that the case id elevated to a reviewing body, such reasons or justifications is “sufficient or justifiable”, and; five, “degree of the particularity of the reasons” is dependent upon the situation. As to the case of Eric, we are at the moment uncertain of his real participation in the refusal of your application. There is no concrete proof that he did influence the Council. What is important at this time is that the Council must justify their refusal of your application through clear and cogent language. References/Bibliography: Anheuser Busch v. Controller of Patents. [1987] I.R. European Convention of Human Rights. The Human Rights Act of 1988. Ni Eili v. Environmental Protection Agency [1998] IEHC 188 (20th February, 1998) http://www.bailii.org/cgi-bin/markup.cgi?doc=/ie/cases/IEHC/1998/188.html&query=title+(+Ni+)&method=boolean Orange Communications Ltd v. Director Telecommunications [1999] IEHC 254 http://www.bailii.org/cgi-bin/markup.cgi?doc=/ie/cases/IEHC/1999/254.html&query=revocation+and+licence+and+without+and+disclosure+and+reasons&method=boolean Rosenzweig and Bonded Warehouse Ltd. v. Poland. [2005] ECHR 552 markup.cgi?doc=/eu/cases/ECHR/2005/552.html&query=%22withdrawal+of+licence%22&method=boolean Securities Limited v. Secretary of State. [1997] EWCA Civ 2243 Read More