An Owners Guide to Smoking in Restaurants, Bars, Hotels, Casinos etc
There is so much hype and hypothetical theory surrounding the laws around smoking that I have decided to put together “An Owners Guide” on the subject. Please note that although this document is not legally binding, the information has been researched and checked to ensure it is all correct.
I will NOT attempt to debate the moral or ethical side of the law or how it may affect businesses positively or negatively; I will simply lay out the rules in a simple format that may save you a lot of money and a lot of aggravation.
Let’s start with Rule Number One! Rule number one simply states that YOU MAY NOT SMOKE ANYWHERE EXCEPT IN YOUR OWN HOME OR OUTDOORS (And even that is restricted where people congregate). That’s it! This is not a debate about personal freedom or rights or choice or restrictions on earnings… It’s a health law. No Smoking!
Then the law goes on to say, “hey we will make exceptions in certain establishments like restaurants, bars, clubs, hotels, casinos etc BUT only if you comply with all the provisions in CLAUSE 3.”
So what exactly does CLAUSE 3 say? Well CLAUSE three has four provisions and only compliance with all four provisions allows you to have a “Smoking Area”. Note, all four! Although 2 out of 4 may be a pass mark at school, it doesn’t apply to the smoking rule.
Provision 1: The area concerned must be less than 25% of EACH section SEPARATELY. Now listen to this part carefully because it is the one area where most people fall short. This in effect means that if you have a restaurant and a bar you MAY NOT make the restaurant non-smoking and the complete bar smoking even if it (The bar) is less than 25% of the total area. The law states that you may make 25% of the restaurant and 25% of the bar into a smoking area. The same applies to hotels who try to make an entire bar the smoking area because it is less than 25% of the hotel floor space. Each section of space is treated separately and the 25% rule is applied to each one.
Provision 2: These smoking areas must be totally separated from the rest of the establishment by SOLID partitions and must have a closing SOLID door. This means, NO open windows, NO air curtains, NO open entrances. No person must be forced to walk through this area in order to gain access to another section of the establishment i.e. toilets, cashiers, kitchen, other sections etc.
Provision 3: This section must be SEPARATELY VENTILATED, exhausting directly to the outside. This means that you may not rely on the same ventilation system that runs the rest of the establishment regardless of how powerful it is or what certification you have for it.
Provision 4: Clear and compliant signage must be displayed in both the smoking and non-smoking areas.
So that’s it, either you are in compliance or you are not. Now let’s chat about the penalties for non compliance. I would like to make it clear that the law makes it the clear and legal obligation of the owner or person on duty to ensure that people do not smoke in non-smoking areas. We can all argue till we are blue in the face about “not being policemen” about “there are more important things to worry about” about “personal freedom and choice” about “this is how I earn my income” but, none of these will stand up in court.
The penalty for non-compliance is up to R50 000 but it does not stop there! Should you be found guilty or pay an admission of guilt fine, you will have a criminal record and this may adversely affect your ability to keep or renew your liquor license as the provision for having a liquor license clearly makes reference to NO criminal record.
Here are a few other things you need to consider…
A staff member must be allowed to object to working in or having to pass though a smoking area without fear or victimization or retaliation. The law also states that if requested to do so by a staff member, an establishment must protect its staff from the harmful effects of tobacco. Failure to do this may result in a fine of up to R100 000.
Cigarette vending machines and other tobacco products may only be displayed INSIDE the non-smoking area or where persons under the age of 18 cannot gain access. Please note, the Act makes provision for entrapment to ensure you are complying with this. That in effect means that an under aged person may be sent into your establishment to try and purchase tobacco products or access your cigarette machine. Furthermore, a vending machine selling tobacco products may not sell anything else.
No person under the age of 18 is permitted in the smoking area, with or without the permission of their parents and once again the law is quite clear… The onus for compliance rests entirely with the owner or management of the establishment.
At this stage you are probably fuming and swearing or about to call a mate to complain. As previously stated I have some very strong views on smoking and even stronger views on the act and how it is being applied BUT none of these views have any relevance to the information contained in this document and I urge you all to read it carefully and familiarize yourself with its content. The days of skirting the issue and paying lip service are over, if you do not want to see your business go “up in smoke” now is the time to make some hard and far reaching decisions.
Below you may download the actual act and information pertaining to it.
Smoking Laws 29 September 2000
Smoking Laws Amendment 2009