hospitality news Autumn 2007

Clear the air on anti-smoking legislation - an update

Benches & hedges - smoking in outdoor areas

As everyone is now aware, the Health Act 2006, which came into force on 19 July 2007, means that smoking is now banned in virtually all 'enclosed' or 'substantially enclosed' workplaces. However, although this has led to a smoke-free environment indoors, we now see hoards of smokers congregating in gardens, yards and other areas outside eating and drinking establishments, resulting in an increase in noise and other drink-related problems.

Whether you are a landlord, hotelier, restaurateur or club owner, it is important that those who operate, control and manage licensed premises take the necessary steps to address the following issues that may arise from the increased use of outdoor areas.

Licensing

If an outdoor area is included within the premises licence, businesses may need to consider whether there are any conditions in their premises licence that restrict the use of such outdoor areas. If so, an application for a variation of the licence may be necessary to remove or vary such conditions.

Public nuisance

Businesses must consider the potential public nuisance impact of the use of such outdoor areas. Groups of smokers outside premises generate noise and litter, which may result in neighbours complaining. If justified complaints are made, then formal action could be taken by the local authority and the premises licence could be reviewed or an abatement notice served.

There may be conditions in the premises licence that restrict the level of noise and, as more people gather outside premises, it may be difficult to comply with such conditions. The licensee should therefore consider applying to vary these conditions.

If the outdoor area is licensed, then there is often an earlier closing time than internal areas, which means that businesses must ensure that any outdoor areas are vacated within the time limits imposed.

Tables and chairs

Many bars and restaurants that do not have a garden, yard or other outdoor area are placing tables and chairs on the pavements to accommodate smokers. However, to do this legally, a Highways Act licence must be obtained.

Smoking shelters

As winter approaches, businesses are seeking to provide areas for smokers with varying degrees of shelter from the elements, by the provision of facilities such as smoking shelters, canopies or other covered outdoor areas. These structures will usually have some form of roof and often walls to allow for use in most adverse weather conditions. However, any such structure must fall outside the definition of 'substantially enclosed', as any area that is enclosed or substantially enclosed must be smoke free. An area is substantially enclosed if it has a ceiling or roof and the openings in the walls have a total area that is less than half of the area of the walls, including other structures that serve the purpose of a wall and constitute the perimeter of the premises. Therefore, if a business is considering erecting an outside structure it must make sure that it does not fall within the definition. The following issues should also be considered:

No admittance authorised smokers only

The smoke-free provisions as set out in the Health Act 2006, sections 2(1) and (2), state that premises are to be smoke free if they are open to the public or used as a place of work where members of the public might attend for the purposes of seeking or receiving goods or services from the person working there. However, section 2(3) states that if only part of the premises is open to the public or used as a place of work within the meaning of section 2(2), the premises only have to be smoke free to that extent. This means that those parts that are not open to the public and not used as a place of work by more than one person are not covered by the ban.

It is a matter of interpretation but it is being argued that a designated room for a private function is 'only part of the premises' and therefore a private function could be excluded from the ambit of the ban if members of the public do not have access and workers are not ordinarily required to work at the function but instead they volunteer and consent to working in a smoking environment.

If this interpretation is correct, organisers should erect a sign clearly stating that there is no access to members of the public to the part of the premises where the function is being held and should ensure that the staff consent to working in a smoking environment.

Miranda Robertson
Commercial Property