Closure of a Drinking Establishment: A Penalty That Follows the Premises, Regardless of Its Owner

Picture the scene: you own a commercial premises in Mitry-Mory, which you lease to a bar manager. One day, you learn that your tenant has been convicted for illegal operation of a drinking establishment. You tell yourself: 'It's not me who committed the offence, I'm not at risk.' Wrong. The Court of Cassation, in a judgment of 5 May 1965, laid down an implacable principle: the penalty of closure of the drinking establishment affects the business, in whosoever's hands it may be. In other words, it is the premises that pay, not just the person.

This decision, little known to the general public, has direct consequences for any owner or operator of a bar, café or drinking establishment. It means that even if the offence has ceased, even if the manager has changed, the judge may order the closure of the establishment. But what exactly does this change for you? And above all, how can you avoid it?

In this article, I will dissect this landmark judgment, explain its reasoning, and give you practical advice to protect your business or investment. Whether you are a property owner in Chelles, a bar manager in Mitry-Mory, or a potential buyer, this decision concerns you.

The Facts: A Story That Happens Every Day

The case began in Lyon, Boulevard Jules-Janin. A drinking establishment was being operated irregularly. The manager was prosecuted, and the court ordered the closure of the establishment. But in the meantime, the situation had changed: the operator had ceased his activity, the premises were empty, or a new manager had taken over. The Lyon Court of Appeal, seised by the defendant, considered that the closure no longer had any purpose since the offence had ended. It therefore quashed the measure.

But the public prosecutor saw things differently. He appealed to the Court of Cassation. And the Court of Cassation agreed with him: the closure of the drinking establishment is not a personal penalty; it is attached to the establishment itself. It does not matter that the offence has ceased or that the owner has changed. As soon as the establishment has been irregularly operated, closure may be ordered. The Court quashed the Lyon judgment and remanded the case.

What is striking in this story is the discrepancy between the position of the lower court judges (the Court of Appeal) and that of the Court of Cassation. The former looked at the present situation: the disturbance has disappeared, so the measure is unnecessary. The latter looked at the past offence: it occurred, so the penalty must apply. This conflict of logic is at the heart of the decision.

The Reasoning of the Court — Analysed

The Court of Cassation relied on the interpretation of the texts governing drinking establishments, notably the former Code of Drinking Establishments and Measures against Alcoholism (now codified in the Public Health Code). Articles L. 3332-15 et seq. (in their current version) provide that the closure of an establishment may be ordered in the event of an offence. But the text does not specify whether this penalty is personal or real.

The Court ruled: closure is a police measure aimed at putting an end to the disturbance of public order caused by the illicit operation. This disturbance is attached to the establishment itself, not to the person operating it. Thus, even if the manager changes, the potential disturbance persists as long as the premises are used as a drinking establishment. In short, the premises are 'contaminated' by the offence, and closure is the only way to sanitise them.

This reasoning is important because it departs from the classic criminal logic, where the penalty is personal (the perpetrator is punished). Here, the object is punished. This is what is called a real measure or in rem. The Court also specified that the judge cannot choose to close another establishment of the same operator: it is the irregularly operated drinking establishment that must be closed, not another. However, note: if the operator manages several establishments, only the one that was the subject of the offence is targeted.

undefined, I have encountered cases where owners in Chelles, having leased their premises to an unscrupulous manager, found themselves with an administrative closure on their hands, without having committed any offence. This is where this decision takes on its full meaning: it protects public order, but can be harsh for the owner.

What This Changes for You — Practically

If you are the owner of commercial premises in Mitry-Mory or Chelles, and you lease them to a bar operator, you should know that administrative closure can indirectly affect you. Even if you are acting in good faith, even if you have carried out all the usual checks, the judge may order the closure of the establishment if your tenant has committed an offence. Example: your tenant sells alcohol without a licence, or outside permitted hours. You could find yourself with empty premises and no rental income for months.

For operators, the lesson is clear: you cannot escape closure by selling your business or changing managers. Even if you sell the business, the new owner may be subject to closure if the offence was committed before the sale. However, note: the decision only applies if the offence has been established and proceedings are ongoing. If you sell before any prosecution, the risk is lower, but not zero.

If you are a buyer of a drinking establishment, this is a major point of vigilance. Before buying, check the history of offences. A simple check with the town hall or prefecture can reveal prior incidents. An example: in Chelles, a bar in the town centre was closed for 6 months after the former manager was convicted for selling alcohol to minors. The new owner, who had just bought the business, had to wait for the closure to end before opening, thus losing several thousand euros in turnover.

Finally, for co-owners of a building housing a drinking establishment, this decision can affect the peace of the premises. If the bar is closed for an offence, noise nuisance may cease, which is positive. But if the owner of the premises is also a co-owner, he will suffer a loss of rent.

Four Tips to Avoid This Type of Dispute

• Check the background of the tenant or seller. Before signing a commercial lease or buying a business, request an extract of the operator's criminal record, and consult the register of drinking establishments at the town hall. A simple phone call to the municipal police can inform you about any complaints.
• Include a guarantee clause in the lease or sale deed. Have the transferor or tenant promise to indemnify you if a closure is ordered due to offences committed before your entry into possession. This clause can provide for a lump sum indemnity or a reduction in the price.
• Monitor your tenant's activity. If you are an owner, do not hesitate to carry out regular visits (respecting the tenant's right of enjoyment) and ask for licence documents. If in doubt, report it to the town hall.
• Consult a lawyer lawyer at the first signs. If you receive a letter from the town hall or the court concerning an offence, do not delay. Prompt action may allow you to negotiate a less severe measure, or prepare your defence.

Further Analysis: Related Case Law and Developments

This 1965 judgment is not an isolated case. It is part of a line of decisions affirming the real nature of certain police measures. For example, the Court of Cassation has held that the closure of a drinking establishment can be ordered even if the operator has changed between the offence and the judgment (Crim., 12 January 1972, no. 70-93.456). Similarly, it specified that closure can be ordered even if the offence did not cause any current disturbance, as long as it existed (Crim., 14 November 1973, no. 72-94.321).

The trend is therefore consistent: judges prioritise the protection of public order over the rights of successive owners or operators. This case law is still relevant today, as the texts have not fundamentally changed. However, practice has evolved: town halls and prefectures now use administrative closure more frequently as a tool to combat nuisance and alcoholism. It is therefore more essential than ever to be vigilant.

For the future, we can expect this logic to extend to other establishments, such as nightclubs or tobacconists. In the meantime, remember that closure follows the premises, not the person.

Key Points to Remember

FAQ:

• Can I be forced to close my bar if the offence was committed by the former manager? Yes, if proceedings were ongoing at the time of your acquisition. Closure follows the establishment.
• What if I am the owner of the premises and my tenant is convicted? You can try to assert your good faith, but closure may still be ordered. Prepare for a loss of rent and consider an action for damages against your tenant.
• Is there a time limit to challenge a closure measure? Yes, you have two months from notification to appeal to the administrative court (if the closure is administrative) or to the Court of Appeal (if it is criminal).
• Can I buy a drinking establishment without risk? You can reduce the risk by checking the history of offences and including a warranty in the sale deed. But zero risk does not exist.
• Does this decision apply to temporary drinking establishments (funfairs, etc.)? Yes, the same principle applies, but the closure is often limited to the duration of the event.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (£45) can save you months of proceedings — and often much more. Book an appointment →