Advice for licensed premises
The aim of this information is to advise licensees of the requirements of the Health Act 2006 and its supporting regulations. It provides guidance on how you can work within the legislation as well as offering contacts and support for licensees in complying with the smoke free legislation.
You may find the following questions and answers useful.
Is this just about smoking in pubs?
No. All enclosed workplaces and public places, including restaurants, pubs, public transport and membership clubs are required to be completely smoke free. There are limited exemptions for premises that act as an individual’s dwelling and in certain establishments where people live and which are also workplaces, e.g. prisons, hospices, residential care homes and hotels (see also question 4 below).
What parts of the pub does the law apply to?
All areas which are wholly or substantially enclosed must be smoke free. This includes all indoor areas and rooms and any outdoor provision which is “substantially enclosed”. To determine whether a room or area is substantially enclosed, the 50% rule is used. A substantially enclosed area is one having a ceiling or roof and openings in the walls which are less than half of the total area of the walls. A roof includes any fixed or movable structure or device, e.g. retractable canvas awning, capable of covering all or part of the area. Smoking will only be allowed in shelters which are not substantially enclosed.
Does a public house have to provide smoking areas?
No, there is no requirement for public houses to make provision for smokers. However, you may wish to do so; but this can only be in areas which are not substantially enclosed. See question 11 on the provision of smoking shelters.
Are there any exemptions which apply?
If your premises provides accommodation for guests or members, designated bedrooms do not have to be smoke free if the person in charge of the premises designates that the room is not smoke free. This only applies to bedrooms and if you use this exemption you must ensure that the room:
- is completely enclosed by solid floor to ceiling walls
- does not have a ventilation system that ventilates into any other smoke free part of the premises
- does not have any door that opens onto smoke free premises which is not mechanically closed immediately after use
- Is clearly marked as a bedroom in which smoking is permitted.
Do I need to provide No Smoking signs?
Yes, the regulations require all premises and vehicles which are smoke free to display signs. The signs must be prominently visible at each public entrance, must be at least A5 in size, carry the international “No smoking” symbol (a burning cigarette in a red circle with a red bar across it) and carry the words “No smoking. It is against the law to smoke in these premises”.
Who enforces the smokefree law?
The local authority enforces the smokefree law; this is done by dedicated enforcement officers and/or environmental health officers. Routine compliance checks are carried out as well as the investigation of any complaints.
What are the penalties?
The penalties are as follows:
- For smoking in a no-smoking place: Either a fixed penalty notice of £50 or up to £200 fine if the case goes to court.
- For failing to display no smoking signs: Either a fixed penalty notice of £200 or up to £1000 fine if the case goes to court.
- For failing to prevent smoking in a smoke free place: there is no fixed penalty fine. The case would go to court and the penalty would be a fine of up to £2,500.
Should I introduce a Smoke Free Policy?
You may wish to introduce a Smoke free Policy for your workplace. This helps to ensure that your employees are aware of the new smoke free law and that they will be working in a smoke free environment. It also advises them of what things they need to do to comply with the new law.
Your Smoke free Policy should be developed in consultation with your employees. It can be a verbal understanding between you and your employees, incorporated into your existing Health and Safety Policy or you may wish to create a separate written policy.
What can I do if I cannot get someone to stop smoking on my premises? Can I still be fined?
In such situations, the management would be expected to follow their standard procedures as they would in any other situation where a customer was behaving in an unacceptable and uncooperative manner. You may risk being prosecuted if you do not do enough to prevent your customers from smoking.
Guidance suggests that you draw up a Smoke free Policy for your premises and that you train your staff in enforcing and monitoring compliance with the policy for when you are absent. Details of any incident where a customer refuses to refrain from smoking should be logged in an events book together with the name of the person involved and the outcome
Could I lose my licence if I am convicted of an offence?
Although there is no specific provision in the smokefree legislation for review of a licence, all licences are subject to review for failure to promote the “crime prevention” objective. Therefore, continual breach of the smokefree legislation may result in an application for review on the grounds of failure to promote the crime prevention objective.
If I want to provide a smoking shelter, is there anything that I need to consider beforehand?
Yes, if you want to install some form of covered area or shelter for smoking, you will need to give careful consideration to some factors; basically, as long as smoking shelters are not enclosed or substantially enclosed, they should be lawful. “Substantially enclosed” has been defined in the regulations as premises having “a ceiling or roof but there are openings in the walls which are less that half of the total area of walls, including other structures that serve the purpose of walls and constitute the perimeter of the premises. When determining the area of an opening, no account can be taken of openings in which doors, windows or other fittings can be opened or shut”.
If nearby walls are closer than 1.5m to the smoking shelter they may be considered as serving the purpose of walls to the shelter and these nearby walls will count towards the 50% wall area in the calculation to determine if the smoking shelter will be substantially enclosed. The reason for this is that these nearby walls will have a sheltering effect which, whilst providing comfort for smokers, will interfere with the natural ventilation of the smoking shelter.
You will therefore need to consider if there will be any walls close to the proposed shelter which could be considered as “serving the purpose of walls”.
Will I need planning permission for a smoking shelter?
Smoking shelters are likely to materially affect the external appearance of the building and will be operational development and therefore are most likely to require planning permission. If the building is listed, additional consent may also be required. You are advised therefore to contact the Development Control Service in writing, preferably with details/sketch/location of the proposed structure, for advice prior to submitting a planning application. Planning applications can take up to eight weeks to determine and you will need to build this period plus any pre-application advice into your programme. The planning service can be contacted by writing to:
Planning and Transportation
The Civic Centre
Telephone 01922 652452
Fax 01922 623234
Minicom 01922 652415
Office opening times: Mondays to Thursdays 8.45am - 5.15pm and Fridays 8.45am - 4.45pm.
Note. Building regulation consent may also be required prior to the commencement of works. It is suggested that you also contact the Council’s Building Control Services on telephone number 01922 652408 01922 652428 for further advice.
Do I need to apply for a variation to the premises licence if I want to install a smoking shelter?
The consumption of alcohol is not a licensable activity and public health is not a licensing objective. Therefore the construction of a covered smoking area sited well away from the licensed premises will not require a variation if alcohol is merely consumed there and not supplied there and no other licensable activity is to take place there. However, a covered smoking area attached to or sited in close proximity to the licensed premise is likely to raise licensing objective issues, particularly public safety. Therefore a variation to the licence may be required. Also, a variation may be required if the premises plan requires alteration. Each case is decided on its own merits. Therefore before installing a smoking shelter you are advised to contact the council’s Licensing Department at:
Telephone: 01922 653050
Won’t sending drinkers outside lead to noise problems?
This is an area of concern to Environmental Health. Pubs are not obliged to provide outdoor areas for smoking. If you do want to open one, you may need to apply for a variation of your premises license if the use of the beer garden is subject to conditions. Where those conditions have been placed as a result of representations from Environmental Health on the basis of concerns about preventing public nuisance, then Environmental Health may wish to make further representations in respect of the proposed variation.
Additionally, the provision of a smoking shelter will most likely require planning permission with an opportunity for Environmental Health to make representations if there are concerns about the likelihood of noise nuisance. We would not expect that neighbours would have to put up with noise nuisance from customers drinking outside. You will be responsible for ensuring that the use of the smoking shelter is effectively managed and that it is not permitted to become a point source of nuisance to neighbouring properties.
What help is there for staff and customers who want to stop smoking?
The Walsall Stop Smoking Service has a range of services across the borough. It is part of the NHS and provides free support and advice on how to quit with access to treatments such as nicotine replacement therapy (e.g. patches gum, etc). People can access the service if they live or work in Walsall or are registered with a Walsall GP. The Service runs specialist clinics throughout the borough or individuals can access support at pharmacists / GP practices that have approved advisers.
In addition the Service can run support groups for your staff and customers in your pub, these generally run over 6-7 weeks and a minimum of 8 people are required to attend.
If you would like more information on holding groups in the workplace, or if individuals want to access the service to stop smoking, please phone Walsall Stop Smoking Service on 0800 169 9346.
Who should I contact if I want further information?
Further information can be found on the Smokefree England Website at www.smokefreeengland.co.uk.
Telephone 01922 653020
This page was last updated on 25 November 2016