ROYAL COURT
(Samedi Division)
5 March 1999
Before: FC Hamon, Esq., Deputy Bailiff, and
Jurats Potter and Tibbo
AG
-v-
Maria Teresa Allen (née dos Santos)
1 count of:contravening Article 2(1) of the Lodging Houses (Jersey) Law, 1962, as amended by keeping a lodging house that was not registered under the said Law.
Age:45
Plea:Facts admitted
Details of Offence:
Between 1 April 1998 and 28 July 1998, the defendant lodged eight persons at the St. Nicholas Guest House, that is three more than the permitted number, whilst not being registered under the 1962 Law. The "illicit profit" calculated as three persons by £43 per week by 18 weeks equals £2,322. The defendant had purchased a guest house whose registration had expired on 31 December 1996. During 1997 the guest house was not re-registered under Tourism because various improvements were required to be carried out which the defendant had failed to do. In June 1997, the defendant was required to return the Tourism "Grade Plate". In July 1998, the Managing Agents of the property telephoned Tourism because it was apparent that persons were being accommodated at the guest house whom the agents did not believe to be tourists, in breach of the terms of the lease. Shortly thereafter the defendant visited Tourism where it was reiterated that the property was not registered let alone graded. On 28 July 1998, the Law and Loans Enforcement Officer visited the premises and found eight persons in occupation.
Details of Mitigation:
Co-operative with the Housing Department. When she purchased the guest house she anticipated earning approximately £1,400 per week whereas because of the new requirements of Tourism, the rental income was only £275 per week and her outgoing rent £230 per week. Even if only a maximum of five guests, the income was only just enough to pay the rental. Various friends have been financially assisting her.
Previous Convictions: None
Conclusions: £2,000 fine, with £200 costs
Crown had sought a fine based on illicit profit that is £2,322 which it was prepared to discount to £2,000 with time to pay because the Crown was aware that the defendant may be impecunious. Three months imprisonment in default with an order for £250 costs. However on the morning of sentencing the defendant produced an affidavit of means which clearly demonstrated that she was quite incapable of paying any fine. The Crown Advocate therefore informed the Court that the Crown felt it appropriate to move for a fine which reflected the seriousness of the infraction but taking into account the defendants means the Court may seek to impose an individualised sentence.
Sentence and Observations of the Court: Binding Over Order for 1 year; no order for costs
Court did not accept that the defendant had gone into the purchase of the guest house with her eyes shut. Court felt that some of the correspondence was "unsatisfactory" between the defendant, Housing and Tourism. Court found that she did not breach the law cynically, had made no huge profit and had no previous convictions. Court had taken into account the content of her affidavit of means and concluded that she had been poorly advised by her previous legal advisers and was unhelpfully directed by the Tourism Department. She had no savings, no income and expenditure exceeding her income.
Mrs S Sharpe, Crown Advocate
Advocate A P Begg for the Defendant
JUDGMENT
THE DEPUTY BAILIFF: Mrs Allen took the assignment of the remaining term of a nine year lease of the St. Nicholas Guest House on 1 May 1996. Presumably she did not go into the transaction with her eyes shut. The Guest House was registered for 16 guests under the Tourism (Jersey) Law, 1984.
Inspectors came to the Guest House in August, 1996, following her report to them of flooding in the dining room from a burst water main. When, after that inspection, the defendant applied to renew the registration of the Guest House, she was told by a letter dated 19 September that when the structural damage caused by the flooding had been remedied a pre-season inspection would be necessary. Later on she was told that there were new requirements which would require some of the rooms to be closed. We feel that this was unsatisfactory correspondence for someone who was in fact a tyro in the Guest House business.
After further correspondence an inspector who visited the premises on 9 June wrote to request the return of the Tourism grade plate. In every sense the Guest House registration was no longer in force and the defendant was later found to be running a Lodging House. Between 1 April 1998, and 28 July 1998, a period of eighteen weeks, there were three illegal lodgers above the permitted maximum of five. Each occupant was paying £43 per person and £85 for a double room per week. Strictly, in law, Mrs Allen is in clear breach of the Regulations in the sum of £2,322. The truth of the matter is that the Guest House was never run as a registered Guest House and for a relatively short time the number of paying guests exceeded five. But the Crown readily accepts that the defendant had not breached the law cynically nor made a large profit and she has no previous convictions.
In our view, from what is contained in her affidavit, we have to say that she was poorly advised and, we feel, unhelpfully directed by the Tourism Department. She has no money; she has two children, one of whom is a student and it looks as though she is about to lose her lease because of breaches of covenant arising out of these matters. Again, according to her affidavit of means, she has no savings and her expenditure at the moment exceeds her income.
We have looked at all the cases and particularly that of AG -v- MacKenzie (19 October 1990) Jersey Unreported. We are going to bind you over to be of good behaviour for one year and we make no order for costs.
Authorities
Lodging Houses (Registration) (Jersey) Law, 1962: Article 2
Lido Bay Hotel Ltd & Anor -v- AG (9 July 1996) Jersey Unreported CofA
AG -v- de Carteret (20 January 1995) Jersey Unreported
AG -v- MacKenzie (19 October 1990) Jersey Unreported