Legal advice: Smoke ban anomalies

We recently wrote that the long-awaited, or long- feared (depending on your point of view), smoking ban is nearly upon us. The Department of Health has now published a consultation paper on the proposed regulations to be made under powers in the Health Act.

The principal terms of the draft regulations are:

• Workplaces and public premises with a ceiling or roof will be "smoke-free" (unless more than 50 per cent of the wall area is open to outside)
• Company cars must be smoke-free even if potentially used by more than one person (does not apply if a convertible with its roof down)
• Bedrooms situated within enclosed workplaces or public premises may be exempt from the smoking ban
• "No Smoking" signs (minimum A5 size) must be displayed prominently by occupiers of the premises - the following words must be included "No Smoking. It is against the law to smoke in these premises". Some premises such as hotels can add "except in a designated room" as long as they meet certain criteria.

What is considered a workplace or public premises with a ceiling has been a point of contention ever since the idea of a smoking ban was first mooted. When assessing whether the premises is 50 per cent enclosed, no account is taken of openings in which doors, windows or other fittings can be opened or shut. Further-more, a roof includes retractable canvas awnings.

Smoking in company cars

Deeming company cars to be non-smoking areas could have far- reaching consequences for operators, although it is worth remembering that the ban does not apply if the car is for the sole use of the driver. If, however, more than one person uses the car, there will be an obligation to display a non-smoking symbol in a prominent position in the company car and for the car to be smoke-free.

The obligation to prevent smoking in the company car will not only be put upon the operator, but also upon the driver. This means that an assistant manager driving a bar manager to a work meeting in his company car would be obliged to tell his manager not to smoke in the car.

The exemption for bedrooms in premises to which the ban applies may be complicated to work out. The exemption applies to rooms set aside for sleeping, which are fully enclosed (apart from doors and windows) and which the operator has decided to designate as a smoking area.

The operator cannot designate a bedroom for the exemption if the ventilation system ventilates to another room (unless that is a smoking area) or the room opens onto a non-smoking area (unless the door closes mechanically).

This will be useful for those offering accommodation, but careful thought must be given to which rooms qualify for the exemption. In some cases simple alterations may make a room qualify - for example installing mechanically closing doors, or redirecting the ventilation system.

So, what are the penalties for failure to meet a requirement? Failure to display a no-smoking sign could result in a £200 fine (or £150 if paid within 15 days). But if this fine remains unpaid, or the fine is challenged, a fine of up to £1,000 (or a criminal record) could be imposed.

Preventing customers from smoking

Licensees will also be obliged to take reasonable steps to prevent smoking in the smoke-free premises or face a fine of up to £2,500. This kind of penalty will be hard-hitting for smaller, independent operators, particularly as it is sometimes difficult to prevent people from smoking. However, it is akin to preventing drunk customers from consuming more alcohol on the premises, which is something licensees have dealt with for many years.

The new obligations may require some basic training for barstaff so that each employee knows how best to deal with customers who refuse to stop smoking on the premises.

And what about barstaff in general? If a member of barstaff was found to be smoking in the no-smoking premises - and remember that this can include company cars - they would be subject to a £50 fine (or £30 if paid in 15 days). This fine could be increased to £200 (or a criminal record) if it remains unpaid or is challenged.

It is important to stress that at this stage the regulations are merely in a draft stage and could be subject to change, although the government's general thinking on the matter is unlikely to change significantly. If you would like to read the draft regulations in full, these can be accessed at http://danielbarnett.c.topica.com/ maaeFWYabsiGhcitP1DeafpOi5