The Health Act - No Smoking is Fast Approaching

October 2006

The Government has now passed the Health Act and issued the consultation document in relation to the proposed Smoking Ban in England and Wales.

The consultation document will eventually be known as the Regulations and provides the detail as to what will and will not be acceptable with regard to smoking shelters and the enforcement of the law. The paperwork is extensive ( 60 pages ) and the rules are in three separate sets of regulations. The Welsh Assembly have also published their guidance and draft regulations, this replicates the English proposal and this consultation will be concluded on the 13th October 2006.

The start date for England has not been finalised, but in Wales the Act will take effect from 2 April 2007.

The key points are that: -

1. The Scottish rules are to be adopted in principal, save for some minor deviations.
2. We have definitions for "enclosed" and "substantially enclosed" areas. For a smoking shelter to be within the terms of the regulations, its solid walls must cover no more than one half of the total area available for walls, including other structures that may serve the purpose of walls and constitute the perimeter of the premises. This means you must takeaccount of openings such as doors and windows, a roof includes a retractable canvas awning, and both temporary and permanent structures are included.
3. The signage to be displayed in premises must be A5 in size and incorporate the official No Smoking symbol. It is an offence to fail to display thecorrect type of notice, so this element of the legislation must be carefully considered. The regulations provide a penalty of up to £1,000 fine if you are prosecutedfor failing to display an appropriate sign, alternatively a fixed penalty notice can be issued which will be for £200. If you have letting bedrooms these can bedesignated as smoking areas, however formal notification of the designation is required to the Enforcement Authority (Local Council). There will be a review of theregulations in 3 years.
4. The smoking regulations clearly place the onus of policing of the public upon the operator, the fixed penalty which can be issued to the smoker is £50.00, which ifpaid within 15 days is reduced to £30.00, however there is no fixed penalty for allowing smoking in a smoke free place and only potential prosecution with a finecurrently up to the maximum of £2,500.

In countries where smoke free legislation has already been introduced, many operators reported a downturn in takings, especially where they were unable to offer smokers any outdoor facilities. This was minimised where smokers had access to outdoor areas, and further minimised where these outdoor areas were protected from the elements, and had facilities to consume or purchase food and drink. For this reason we recommend that where possible, you license any smoking areas for the sale of alcohol and any other compatible licensable activities, and give serious thought to the construction of smoking shelters.

What is clear from our initial discussions with the Councils is that the construction of smoking shelters will very often require a variation of the Premises Licence and will trigger a Planning application.

The primary concern is with regard to timescales, ideally a Planning application should be made before the submission of the application to vary the Premises Licence, Planning applications can take a considerable period of time and there are fears that the planners could raise issues, or seek to impose additional obligations or conditions during the application process.

Thereafter, to bring the area within the licence, a Premises Licence variation application will take a minimum period of 28 days if no representations are received during the consultation period, but it is more likely to take 6 to 8 weeks.

If you have not already started, you should be assessing your premises or estates for suitable smoking areas, including the viability and location of smoking shelters, and what range of services (for example table service or mobile bars) will be offered. Also, if you think you will receive objections/representations to you application this will extend the time frame for applying.

If you have concerns regarding your proposed solution, or would like more information, please do not hesitate to contact one of the Partners here.

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