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Fallout from the smoking ban

12 January 2006
Fallout from the smoking ban

The problem
How can bar and restaurant operators cater for smokers, now that the Health Improvement and Protection Bill will ban smoking in enclosed workplaces and public places in England and Wales from 2008?

The law
The Health Bill introduced to Parliament in October, after well-publicised argument at Cabinet level, falls short of an outright ban on smoking in England and Wales. Under the bill, restaurants and pubs preparing and serving food must be free of tobacco smoke. But the ban will not apply to:

  • Pubs and bars which do not prepare and serve food.
  • External spaces which are not enclosed.
  • Private clubs, where members may vote whether to allow smoking.

Breach will lead to fines of 200 for the operator. Persistent offenders, however, may find that other aspects of their operation generally come under greater scrutiny from the authorities, although there should be no direct correlation between smoking and licensing.

Expert advice
A distinction based on the serving of food was widely criticised when it was first included in the White Paper, but was nevertheless retained. The British Beer & Pub Association (BBPA)/Association of Licensed Multiple Retailers (ALMR) Smoking Survey, carried out in July 2005, indicated that the number of operators that do not serve food would increase from 19% to 34% of those surveyed.

The distinction is likely to cause confusion around what constitutes preparing and serving food. And it's not clear whether the distinction applies to pubs and bars that stop serving food after a certain time of the day so as to allow smoking after that hour. A definitive reading cannot be given until the bill is further debated.

External spaces
Early reports from Ireland, where a similar ban is already in place, suggest that bars with outside spaces - gardens, terraces or balconies - have benefited from the ban. Operators should consider the following points.

  • Planning permission - for change of use, or for carrying out any necessary work. Operators should be prepared for objections.
  • Health and safety and disability legislation - which would require that the outside space be both safe and open to equal access by all patrons.
  • Appropriate variations to the premises licence - to reflect the outside space and the activities to be carried out there. Such application should address matters of public safety, disorder and public nuisance.
  • Leasehold premises - the need for the landlord's consent to any change of use, alterations and, usually, for any application for planning permission.

Private clubs
The Licensing Act 2003 recognises that volunteer and social clubs give rise to different issues for licensing than commercially run premises selling directly to the public. Assuming the bill provides for a wider definition, it may be possible for licensees to create private members' clubs, possibly even in distinct parts of the premises - such as in a separate room or on a separate floor.

Alterations might then be minimal, perhaps even avoiding the requirement for planning permission. The premises licence would still require variation but this should provoke fewer objections and, in the case of leasehold premises, there should be fewer barriers to landlord's consent.

The downside, however, may be a reduction in passing trade that offsets any gains from retaining the freedom to smoke.

Check list
Non-food operations

  • Balance the retention of smokers' custom against the loss of food-sales revenue.
  • What foods can be served?
  • Will there be an increase in binge-drinking, and what measures may have to be implemented to combat disorderly behaviour?

External space

  • Planning permission/building regulations approval for change of use or carrying out works.
  • Health and safety/disability legislation.
  • Licensing implications.
  • Landlord's consent for change of use/alterations/planning permissions.
  • Private members' clubs
  • The need for members to vote in favour of smoking.
  • Balancing the retention of smokers' custom against membership as a barrier to passing trade.
  • Licensing implications.

ContactGreig Thewlis, associate, real estate team, Halliwells LLP
0870 365 8185
greig.thewlis@halliwells.com

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