UK: The Legal Implications Of The Smoking Ban

Last Updated: 31 July 2007
Article by Paddy Whur

Scientific research has shown that thirty minutes of exposure to cigarette smoke can make the blood chemistry of a non-smoker similar to that of a smoker. The dangers of passive smoking, coupled with pressure from campaigners, has finally persuaded the Government to legislate against smoking. From 1 July 2007, the Health Act 2006 (the Act) will make it illegal to smoke in enclosed workplaces and public places in England.

The Act will radically transform the entertainment industry. Many operators and licensees are anxious about the impact the ban will have on their business, particularly because Scotland experienced a 10 per cent decline in trade in liquor licensed premises following the introduction of a smoking ban there. The key to surviving the ban – and potentially thriving under it – is knowledge and preparation.

Operators and licensees should take steps to familiarize themselves with the regulations which will be published in March/April this year. The key to understanding the Act is to understand those places which will be covered. There is some confusion about this, which arises out of the definitions of 'enclosed' and 'substantially enclosed' premises.

'Enclosed' means roofed with completely enclosed walls excluding doors, windows or passageways. Premises will be 'substantially enclosed' if they have a ceiling or roof but there are openings in the walls representing 50 per cent or less of the total wall area. This includes temporary structures such as tents and marquees. A roof is defined as a fixed or moveable structure that can cover all or part of the premises; this includes retractable canvas awnings. Walls include other structures that serve the purpose of walls such as fences, doors and windows. The meaning of 'substantially enclosed' will depend on the local authority's interpretation of the regulations but a good rule of thumb is that if the structure feels enclosed then it is not going to be suitable as a non-smoking area. Dialogue with the local authority is encouraged at an early stage.

There is a hefty £2,500 fine for operators or licensees for failure to prevent smoking in smoke-free places. It is important that those who operate, control and manage premises take the necessary steps to avoid prosecution. Operators and licensees must take all reasonable steps to prevent people in the premises from smoking. What is 'reasonable' is debatable but good practice would be to ensure signage is up (and keep spares); the removal of all ashtrays inside the premises; and the adoption and maintenance of a written 'smoke-free' policy. Staff should be adequately and regularly trained and this should be documented. It is also advisable to maintain a log book recording incidents where people have been prevented from smoking in the premises. These procedural measures will show positive promotion and enforcement of the legislation.

There is a £1,000 fine or a fixed penalty notice of £200 (reduced to £150 if paid within 15 days) for failure to display no-smoking signs. The Department of Health will provide free A5-size signs with the international no-smoking symbol to all VAT registered businesses to be placed at public and staff entrances to the building. While it is anticipated that councils will initially adopt a 'softly, softly' approach, this should not breed complacency as prosecution is likely for repeat offenders.

Preparation is crucial for a successful transition between the current law and the implementation of the ban on 1 July 2007. Businesses need to decide what changes to make and how to evolve their business in the light of the ban. One approach is to draw up a business plan and examine the financial implications of doing something or doing nothing. How much are smokers worth to the business? What is the budget now and will this change later? Is leasing or sponsorship an option in financing a smoking facility? What is the cost to the business of not doing anything? What facilities are competitors proposing? These are all relevant factors in assessing what course of action to take. Whether the decision is to ban, ignore, accommodate or welcome smokers it is important to see the new legislation as an opportunity to attract new customers. Talking to existing customers to discover what they want and easing in the restrictions slowly before 1 July 2007 is a good approach to take.

Regardless of the decision, it will be necessary to clean the interior of premises to eliminate all traces of smoke. For those operators and licensees who decide to provide facilities for smokers, action is required now. Planning permission will be required for any façade alterations, the addition of temporary or permanent structures and change of use for the premises. It is also important that licensees who are tenants gain consent from their respective landlords. These applications can be time consuming so the process needs to be started as soon as possible. An option for operators and licensees with premises that do not have outside space may be to apply for a pavement licence to put tables and chairs on the highway.

There are many licensing issues that arise from the ban. If an outside area is covered by the licence it may be necessary to vary some of the conditions in order to carry out any alterations to the premises. There may also be issues of crime and disorder, prevention of public nuisance, public safety and protection of children from harm that affect the changes that can be made. It is critical that planning and licensing issues are resolved prior to incurring expenditure on new products, which will have to be fit-for-purpose and compliant with the regulations. Buying the right products can generate revenue in the long term as operators in Ireland and Scotland have discovered.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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