Legal advice: After the smoking ban

THE SMOKING ban has been in place across the UK for three months now. Here are seven key areas you need to think about around your business to ensure you stay on the right side of the law.

1. Conditions on licences

Conditions relating to queue management, last entry times or dispersal of customers can catch smokers and cause problems.

In many cases, the solution lies in the clear wording of the condition. The guidance to the Licensing Act states that conditions should be proportionate and should substantially replicate the operating schedule. The guidance also states that it must be clear to the holder of the licence, to enforcement officers and the courts what duty has been placed on the holder in terms of compliance.

If it is possible, therefore, to show that the condition causing problems was never meant to catch smokers and that the wording is ambiguous in that respect. You may be able to argue that it should not apply to smokers.

If you are varying your premises licence, you may wish to consider amending such conditions. For instance a 'no entry after 11pm' condition can be amended expressly to exclude people going outside for a cigarette and then wishing to re-enter the premises after that time.

2. ADZs and other street drinking bans

It is essential to know whether your local authority has any prohibitions on street drinking in place around your premises. Such bans can have the effect of prohibiting people from taking alcoholic drinks onto the streets with them when they step outside for a cigarette.

Note that this only affects people going outside of the boundary of the pub's premises onto public spaces, such as pavements.

Certain prohibitions, such as the upcoming Alcohol Disorder Zones (ADZs), create a blanket ban on drinking in public. However, the council can implement other prohibitions on drinking in the streets that differentiate between people outside licensed premises and those drinking alcohol bought at off-licences.

If your council is considering implementing any controlled drinking zone measures, you may wish to try to persuade them that ADZs are not the best way forward.

3. Use of gardens and outside areas

Gardens and other outside areas that form part of the premises can be used for smoking, and, in fact, many have been adapted for that purpose.

Enterprising pub owners are finding little nooks at the side of premises that form part of their land, putting up small awnings and surrounding the areas with barriers. The question often arises as to whether the use of such areas is restricted and whether smokers can take their drinks outside.

Often a licence will have a condition restricting the use of outside areas past a certain time. Remember, consumption of alcohol is not a licensable activity and therefore any conditions on your premises licence should be considered with this in mind. As a general rule, unless drinking is prohibited by either the licence or the local authority, people will be allowed to drink there. If in doubt, your police licensing officer will be able to give you a steer on relevant prohibitions.4. Pavement licences

Pavement licences generally require premises to pack up furniture in the outside area designated for use at a particular time (often before the terminal hour for licensable activities).

After this time, and having considered anything preventing or restricting the use of the area (ADZs and other conditions on your licence), you may still be able to use the area to accommodate smokers.

It will be up to you, however, to ensure that you comply with the terms of the pavement licence (bringing in tables and chairs, removing partitions and so on) and clearly designate the area as being used solely for the purposes of smoking.

Whether people will be allowed to take drinks outside will depend on other factors discussed above.

5. Litter

Following the Department for Environment, Food and Rural Affairs' consultation exercise on extending local authorities' powers to issue Street Litter Control Notices to apply to pubs and clubs, the proposals look set to come into force later this year.

Smoking debris is widely seen - correctly - as a major contributor to street litter and you must ensure that any outside smoking solutions you implement do not have adverse effects. Failure to comply with the terms of a notice by, for example, installing butt bins or sweeping the frontage of your premises regularly, will earn you a £100 fine.

6. Enforcement action following complaints about noise and smells

Both the police and environmental health officers have powers to enforce conditions and take action if people smoking outside your premises cause disturbance to others, either through noise or other pollution.

In extreme cases they have the power to close your premises or to seek a review of your premises licence. You could also be prosecuted for a number of offences under environmental protection legislation. It is imperative, therefore, that you consider carefully any issues arising from the smoking ban that are brought to your attention by the authorities before they feel that enforcement action needs to be taken.

7. Risk assessments

The only way to appreciate fully what you can or cannot do in trying to cope with the smoking ban is by conducting a thorough risk assessment of the effects of the ban on your premises.

Such an assessment will help you identify potential problem areas and formulate a plan of action. If in doubt, liaise with the licensing authority, your designated smoking enforcement officer or your local police licensing officer, as they are tasked with enforcing the ban. If they are happy, you should be too.