Smoking Ban Update

1 July 2007 is a very significant date in the smoking calendar in England. Welsh counterparts have already experienced their equally significant date of the 1st of April 2007.  These are the dates on which the smoking ban comes into force.
 
The Government has very kindly sent English smokers outside in the middle of summer, so coats and hats should not be required.  In Wales, a warm spring has offered smokers some protection from the elements.

Outdoor Smoking Shelters

Many operators have already made arrangements for outdoor smoking areas.  The regulations prohibit smoking inside, and in confined spaces which are ‘substantially enclosed’ in terms of the Act.  
 
The regulations do allow smoking in a structure offering a roof and no more than 50% of its external walls enclosed.    
 
Beyond the straightforward roof and two walls scenario, what is ‘substantially enclosed’ is not at all clear.  Many enforcement agencies have different views, and there already has been debate, for example, as whether trellising counts as a solid wall (being a structure which serves the purpose of walls) or the solid pieces of trellising count and the space between is classified as open space.  
 
The same goes for plants.  If a shelter is screened by plants, do these plants amount to a ‘structure which serves the purpose of walls’ or not?  It will depend on the height and density of planting, how close it is, and for example, the degree of protection from the elements that it provides.  
 
In other jurisdictions whether a wall is part of a structure or not has been prescribed in the legislation.  In England it has not been set, so in most cases common sense should prevail but as with some aspects of Licensing Act 2003 it may depend on where the shelter is located.
 
If you are planning to construct a shelter you need to be mindful of any other consents that are required. Planning consent will often be needed, as may listed building consent for listed building.  Building regulations will also apply.  The construction of the shelter could be lengthened by delays in the consent process
Licensing Authorities are gearing up to enforce the legislation and it would be helpful if operators and the enforcing agencies enter into dialog about what is acceptable and expected in your area.  This will be helpful to operators planning shelters and making no smoking arrangements, and also to enforcement officers who will gain a better understanding of the issues facing operators, and who may be able to enlist the help of operators in the enforcement process. 

No Smoking Signs

Every smoke free premises is required to display non smoking signs in certain locations.  The sign must be A5 size (in area), display the international no smoking symbol (red circle with red diagonal line over a cigarette) no less than 70mm across, and carry the words ‘No smoking.  It is against the law to smoke in these premises’.  
 
Notices need to be at each entrance to the premises, except those entrances already within a smoke free premises, or those entrances accessed by staff only.  At these entrances a sign just bearing the no smoking symbol is required.

Inconsistent Terms Within The Premises Licence

Some premises licences contain terms which are inconsistent with the smoking ban.  The most common will be a restriction on the use of external areas after a certain time, or a last entry time for customers.  Other conditions may include restriction on taking open drinking vessels outside the pub. Breaches of these conditions could lead to a review or prosecution, and the maximum monetary fine for this type of breach are significant.
 
Smoking is not a licensable activity, and therefore a licence for smoking outside is not required, but there may be valid conditions on the premises licence that affect your customers’ ability to use outdoor areas.  Planning Consents may also impose restrictions on the use of external areas and it would play to check these thoroughly before the Act comes into force.  Remember that operators of premises could be liable under the Act if customers light up in areas that are restricted.
 
 
How Will It Affect Neighbours?

Noise levels will almost certainly increase if numbers of customers use outside areas to smoke in.  If they are identifiable as customers of specific premises then neighbours who are affected by noise or disturbance could bring a review application to get restrictions imposed.  Licensees should have a noise management plan in place to help minimise noise and disturbance.  
 
For further information on any smoking related matter, or for advice on how it will affect your business please call the office and speak to one of our solicitors.
 
With very few smoking days left before the ban comes into effect in England – 1 July @ 6.00am in case you had possibly forgotten operators are now clearly focused on due diligence preparation.       
 
This is by no means intended to be an exhaustive checklist but operators should turn their attentions to these points before the ban becomes law.

• Ensure that all premises are appropriately signed
• Ensure that a customer compliance plan is prepared and customer education starts well in advance of 1 July.  Remember to ensure that all ashtrays are removed from the premises on 1 July along with any old signage which might give rise to an assumption that smoking is still permissible in some parts of your premises (reference to a “no smoking area” or a “smoking area” for example)
• Ensure that staff receive appropriate training in advance of the ban with instructions on how to handle the determined indoor smoker.  Records of such training should be retained – as with under aged sales training.
• Consider how you are going to monitor compliance in those areas less able to be supervised, for example in toilets, and consider (as a matter of due diligence) installation of smoke alarms in such areas and additional non-prescribed signage confirming that smoking is not permitted and that monitoring is taking place.
• Ensure that a register of smoking incidents/challenges is maintained and can be made available for production to demonstrate your pro-active approach to enforcement of the ban.
• Be aware that increased numbers of customers outside your premises is likely to lead to greater friction with neighbours and ensure that staff are aware of this and are trained in the appropriate response to any complaints received.  Such complaints and how they are dealt with should be recorded. You may in time have an enforcement visit from Environmental Health and some premises will face applications to review the licence.
• Consider the impact on company cars; if a company car is used to transport others (even if only from time to time) it could be deemed to be a work vehicle and should be smoke free and appropriately signed.  Some organisations are looking at a blanket policy that all company premises and vehicles should be smoke free at all times.  Enforcement might bring interesting challenges!  This already affects those vehicles traveling cross border into Wales and Scotland – where of course the ban is also in place.
• If you provide any overnight accommodation – ensure that the appropriate bedrooms are designated “smoking” in writing in advance of the ban.  If they are not properly designated they will be non smoking rooms.
  

As always if you require any clarification or amplification of the above please do give us a call.

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