Legal advice: Preparing for change
The reality of the smoking ban in England is nearly upon us. It was recently reported that Wolverhampton & Dudley is investing £20m (the equivalent of 3,838,772 packets of Marlboro Lights) on patios and shelters. If you're thinking about investing in awnings, patios, terraces, outside heaters, balconies, or the ever popular gazebos, then your friendly Licensing Act 2003 needs to be consulted.
The good news is that many of you will have to change nothing if you have a backyard/garden and patrons will merely pop outside with their drink to have a fag. The Licensing Act 2003 regulates the sale of alcohol, not the consumption. Watch out, though. Some premises licences only permit on-sales or have conditions which prevent drinks being taken off the premises unless in a sealed container. So you will need to watch the extent of the line for licensable activities and the line showing the ambit of the licensed premises.
Depending on the alterations you would like to make, you should consider and study the plans attached to your premises licence. If you are making structural changes to accommodate outside smokers you will have to vary the plan. If the changes are minor, some councils will allow you merely to forward new plans. More substantial changes will require a full-blown variation application with the notice display, advertising and fees that this entails. Applications to change layouts are dealt with in exactly the same way as any other major variations and therefore representations may be made by the responsible authorities and local residents. In particular, the fire officer may make a representation which will only be withdrawn when work is agreed to be done to his satisfaction.
Outside heaters do not have to be included on plans unless they are fixed or if they potentially affect the ability of people to use exits or escape routes without impediment. Please take note of the regulations which govern plans. Last year, numerous conversion applications were rejected because plans were at the wrong scale or did not to show fire fighting equipment, for example.
Conditions
Check the conditions on your premises licence. In addition to the "sealed container" condition mentioned above, there could be others which could prove onerous. A typical example is that the beer garden cannot be used after a certain time.
Once again, in such a case you will have to vary your premises licence to remove/amend conditions on your licence.
Regulated activities
Those of you who are really ambitious might be considering installing an outside bar and sound equipment.
You will need to check carefully the operating schedule on your premises licence and the areas you currently have licensed for regulated activity. Unless you have permission for regulated entertainment outside, only incidental music is permitted. "Incidental" is not defined by the Licensing Act 2003, but is usually interpreted as sufficiently quiet to permit a conversation to be held without the raising of voices.
If you are installing an outside bar, you will need to check the plans with your premises licence to ensure that the outside is licensed for the sale of alcohol. As above, any changes may require a variation to your premises licence.
Other considerations
A mass exodus every five minutes might cause other problems. My experience of smoking bans in other European countries is that people do not tend to tip-toe outside, smoke a cigarette and creep back in five minutes later. Instead, people tend to stomp outside in groups, linger over a couple of cigarettes and have a good natter. I have seen numerous representations in response to new premises licences/variations to existing licences from local residents who object to the noise of people talking outside and fag ends being thrown on the ground. If local residents believe that this is, or could be, a public nuisance they could either make a representation to any variation application submitted or seek to review your premises licence. Fortunately, concerns about passive smoking (not as rare in representations as you would think) do not come under the remit of the Licensing Act 2003.
To avoid such pitfalls, try and be proactive. Think about providing outside ashtrays and erecting signage asking smokers to respect the local residents.
The smoking ban is inevitable and provided that publicans take appropriate measures it need not be all doom and gloom. Smoking is not permitted in most cinemas, planes and trains, but people still go to the movies and use forms of travel other than cars.
Provided that steps are taken to accommodate the needs of both smokers and non-smokers your business could continue to thrive at the expense of those who trade in contravention of the Licensing Act 2003.
