Changes to Smoking Laws in Licensed Premises
Currently under the Smoke-Free Environment Act 2000 (NSW) (“SFE Act”) enclosed public spaces are smoke-free areas (section 6 and 6A). In addition to this, the legislation lists specific outdoor public spaces are also subject to smoking prohibitions (e.g. children’s play areas, swimming pools, railway station platforms).
There have been numerous changes to smoking laws rolled out over the last few years. The most recent of these came into force last year, with further important changes due to come into force this year that will affect licensed premises. These include:
6 July 2015 – Commercial outdoor dining areas will become smoke free areas.
6 July 2015 – An area within 4 metres of a pedestrian access point to a Licensed Premises or restaurant will become a smoke-free area.
Smoking v Non-Smoking Areas
Currently the legislation only bans smoking in enclosed public spaces, meaning the public places which are not enclosed and are not designated as a smoke-free area by section 6A are permitted smoking areas (for example alfresco areas or open courtyards).
Occupiers or owners of a licensed premise are allowed to voluntarily adopt smoke-free bans in their al-fresco dining areas. Some local councils may also impose additional by-laws regarding outdoor areas.
Further, cigarette vending machines may only be located in specific parts of a premises, such as restricted areas, bar or poker machine areas in registered clubs and hotels.
Private enclosed areas such as homes, private rooms in hostels, hotels or motels are not subject to smoking bans.
How is ‘enclosed’ determined?
Clause 6 of the Smoke-free Environment Regulation 2007 stipulates that an ‘enclosed public place’ is a space deemed to be ‘substantially enclosed’. A space is deemed substantially enclosed when the total area of the ceiling and wall surfaces is more than 75% of its total notional ceiling and wall area. The regulation specifies the method to calculate the notional and total enclosed areas.
Scheduled changes to smoke-free areas:
Preventing Smoke Spread
In relation to a permitted smoking area which is located next to the 4 metre zone of an entrance, a Licensee or manager must take reasonable steps to prevent smoke from spreading into non-smoking areas. If smoke penetrates enclosed spaces where smoking is banned, significant fines can apply (up to $5,500) under section 10 of the SFE Act.
Licensees should note that if they have relied upon the door remaining locked open in order to determine the smoking area is not an enclosed space, then that door must remain open for smoking to be permitted in the smoking area (under clause 7 of the Smoke Free Environment Regulation). If the door remaining open has the effect that smoke spreads into a non-smoking area, this will be in breach of a Licensee/managers responsibility to prevent the spread of smoke into non-smoking areas.
Licensees are reminded that up to 2 July 2007 a Club, Hotel, Nightclub or Casino was permitted to set aside an ‘exempt area’ which could be used as a smoking area, even if enclosed. After this date, exempt areas are subject to an exemption being granted by the Director-General (such exemption can be revoked at any time by the Director-General).
Licensed premises obligations
Is a ‘No-Smoking’ sign enough?
No, an Occupier (including their employees or agents) of a smoke-free area is obliged to actively prohibit a person form smoking in the smoke-free area. This includes requiring any person to stop smoking as soon as the Occupier becomes aware that the person is smoking in the smoke-free area.
Clause 8(3) of the Act assists the owners of a Licensed Premise by stating that if a person is required to leave a smoke-free area because they are smoking, it does not affect that person’s liability to pay for any food or beverage supplied to or ordered by the person, even if not yet consumed.
Health and Safety of your Employees
Even though smoking is permitted in the areas listed above in licensed premises, section 21 of the Smoke-free Environment Act 2000 means that employers are not discharged from their legal obligations to their employees or patrons, including work health and safety obligations to provide a safe working environment, including eliminating and controlling employees’ exposure to passive smoking.
If you would like further advice in regard to smoking laws and how to implement effective policies in your workplace, please contact our team of lawyers.