Smoking decisions are needed now
It seems a long time, but it is now less than six months to the start of the smoking ban in pubs and clubs in England and Wales. Remember that we had six months for licensing transition, and that didn't seem long enough either!
Although a great deal has been written about the ban, there are still pockets of resistance. Experience from other areas, though, shows that in general it will be followed, because it is fairly easy to detect infringements. Now that the regulations have been published - with no surprises - the work can begin in earnest.
One of the questions that has regularly been asked concerns what has come to be known as "the 50% rule". Is this walls or roofs? What about sliding doors? Does a trellis count? Will curtains be allowed? These are perfectly understandable queries at this stage, because clearly some licensees are in a quandary about what areas they can use, and some have no available "smoking area" at all.
As is often the case with the way legislation is drafted, the regulations define what is enclosed or substantially enclosed, so you have to work out for yourself what is not enclosed.
In general, a courtyard or patio which is open to the sky is not within the definition, even if it is surrounded on all four sides, with a door into the pub.
However, if you put a roof on the area, whether it is fixed or moveable (such as a retractable awning) then it will not fall within the general exemption, and you have to turn to the 50% rule.
This means that if you do intend to protect your smoking patrons from the elements by providing a roofed structure, then at least 50% of the walls must be entirely open. This is based on the total perimeter of the 'premises' which you are using for smoking, so that
if you have selected only part of the garden to have a roof or awning, then it is just that area which is used for the calculation, not the whole garden.
The regulations state that no account can be taken of doors, windows or other fittings that can be open or shut. So this rules out sliding patio doors, retractable doors, louvred window areas and other closing devices, even curtains. The legal requirement is to keep 50% of the wall space permanently open to the outside air.
In my view, a trellis would not be prohibited, because far more than 50% of its surface area allows air through, and the regulations do not require "total air space" but require "an aggregate area of openings". But it is of course not much protection against bad weather for your customers.
I have written before about the necessity for ensuring in good time that you have the required permissions for what you are doing ready, both in terms of your lease or tenancy and in relation to planning. It is best to have all of these aspects in writing, including, where possible, a written statement that you do not need planning permission for the smoking area.
Remember that in order to establish your own position after 1 July you must ensure that the required notices are in place at the entrances to your pub. My understanding is that these are to be supplied by the relevant government department in good time for distribution, because they must all use exactly the same wording. However, minor alterations may be made to the definition of "these premises." It may be that your own operating company has plans to supply these notices when their actual style and detail is announced.
