The Tobacco Act: On July 17, 2000, Beware!

The enactment of the Tobacco Act by the National Assembly on June 17, 1998, and the coming into force of certain sections of the Act on December 17, 1999, had no real impact on day-to-day life. However, the Quebec population will feel the impact and consequences of this Act on July 17, 2000.

Since last December, the penalties under the Tobacco Act (the "Act") were suspended to allow the population to progressively change its habits. Nevertheless, on May 14, 2000, in a bulletin issued by Mr. Gilles Baril, the Delegate Minister of Health and Social Services, it was announced that as of July 17, 2000, this transitional period will come to an end.

The following is a summary of the measures stated in the Act as well as the penalties arising from a breach thereof, the whole of which seeks to restrict the use of tobacco in certain designated areas.

The Act prohibits smoking in workplaces that are not located in a private residence and in the majority of enclosed areas accessible to the public, with the exception of outdoor areas. Every employer, employee, retailer, consumer, lessor and lessee will have to respect the Act in workplaces, be it in the public, parapublic, private, cooperative or community sectors, educational institutions at the primary, secondary, collegiate and university levels, businesses and commercial centres, factories, restaurants, recreational centres, bars, taxis and common areas in residential buildings of more than twelve units, failing which, they will have to pay a heavy price.

The Act also provides that the operator of any of these places must post adequate and visible notices to designate the areas where smoking is prohibited. Furthermore, said operators will not be authorized to tolerate smoking in any area where it is prohibited to smoke. As an exception to the general ban in the areas targeted by the Act, designated areas are allowed to be set up to permit smoking. The types of establishments where these smoking areas can be set up and the guidelines applicable thereto will be discussed later on.

The Act frequently refers to the term "operator" but its definition is not provided in the Act. In a number of circumstances, the operator of a place can easily be identified, however the case is quite different with respect to the operator of a building or commercial centre. Indeed, we can question whether or not the Act considers an operator of a commercial centre or of an office building to be both the operator of the common areas and of each of the leased premises. Our analysis of this question together with our consultation with the appropriate Minister, leads us to believe that the responsibility of enforcing the Act in any leased premises will probably fall upon the lessee and not the lessor. As a result, the responsibility will most likely fall upon the lessor in the case of infractions to the Act committed in common areas whilst the lessee will be responsible for infractions committed inside the leased premises.

The Act prohibits smoking as well as the setting up of smoking areas in premises occupied by minors such as in primary and secondary schools, nurseries, youth hostels, etc.

However, for all other premises, smoking areas will be allowed. The sole purpose of these smoking areas will be to smoke and consequently, it is prohibited to use them as meeting rooms or cafeterias. The smoking area will have to be enclosed by walls extending from ceiling to floor and be equipped with a negative pressure ventilation system which draws smoke directly out of the building. Please note that the Act foresees that businesses of 50 employees or more will have until June 17, 2001 to comply with these construction guidelines, whilst businesses of less than 50 employees will have until December 17, 2003.

Furthermore, operators of establishments such as commercial or recreational centres, train stations or other premises where one finds waiting rooms, will be authorized to set aside areas where smoking will be permitted. These smoking areas will not exceed 40% of the total floor space and will have to be set up to allow maximum protection for non-smokers, taking into account the total floor space, its ventilation system and general use.

Moreover, all restaurants will have to respect the 40% rule stated above. Restaurants which seat 35 people or more will have to separate the non-smoking area from the smoking area by walls extending from ceiling to floor and equip it with a negative pressure ventilation system which draws smoke directly out of the building. It will not be necessary to enclose the smoking area with a door. The Act provides that these construction guidelines will have to followed at the latest December 17, 2001, in cases where major renovations or new construction to a restaurant are done; for all other cases, the Act extends the adjustment period in which to comply with the construction guidelines until December 17, 2009.

The setting up of smoking areas is left to the operator's discretion in that he may enforce a no smoking policy throughout his establishment.

Finally, the operator of an establishment where minors are not admitted, such as bars, casinos or bingo halls, may allow the use of tobacco throughout his establishment, with the exception of the area where restaurant's services are offered, where the smoking and non-smoking areas must be separate. In this case, the 40% rule and the construction guidelines for a restaurant of more than 35 seats will apply. The Act leaves to the discretion of the operator of such an establishment the choice of enforcing a no-smoking policy throughout his establishment.

On July 17, 2000, inspectors nominated by the Health and Social Services Minister, or in certain instances by municipalities, will enforce the Act. These inspectors are authorized, at any reasonable hour, to visit premises governed by the Act in order to enforce its provisions. These inspectors are authorized to issue tickets to any offenders not respecting the Act.

An individual who smokes in an area where smoking is prohibited by the Act faces fines ranging from $50 to $300 for a first offence and from $100 to $600 for any repeated offence. The operator who has tolerated smoking in a prohibited area by having failed to identify said area by a sign or who has failed to respect the construction guidelines by setting aside a smoking area, faces fines ranging from $400 to $4,000 for a first offence and from $1,000 to $10,000 for any repeated offence.

In order to avoid these fines, enforcing an internal policy will be a helpful tool. Amongst other things, the issuance

of warning tickets will be a persuasive measure to have this internal policy respected. Finally, after having verified with the Minister, we have learned that under certain conditions it will be possible for an operator to request that the Health and Social Services Minister designate inspectors for his establishment.

With the coming into force, as of July 17, 2000, of the penalties, the Tobacco Act will finally have the desired impact by meeting its fundamental objective of protecting the health of the general population against the negative effect of secondary smoke in closed public places and workplaces.