A smoking ban for outdoor dining areas comes into effect in Victoria on 1 August. Under the ban, food venues and neighbouring businesses could face hefty fines if patrons are caught disobeying the new legislation.
Rigby Cooke Lawyers partner and hospitality law specialist Darren Marx says the new legislation could catch many businesses across the state unaware despite almost two years’ notice.
“Announced in August 2015, which courts are likely to consider fair warning, the new legislation affects venues and events large and small, from Melbourne’s laneway cafes to suburban sports clubs and annual country shows,” says Marx.
“However, some businesses or event organisers might not realise the full extent of the new legislation, which specifies rules for both outdoor dining areas and outdoor drinking areas, including for neighbouring venues.”
For occupiers (such as venue managers or event organisers), a breach of the Tobacco Amendment Act 2016 (VIC) which amends the Tobacco Act 1987 (VIC) would attract a maximum court penalty of $1,585.70 (10 penalty units) for individuals and $7,928.50 (50 penalty units) for body corporates.
Penalties also apply for smoking in an outdoor drinking area where any part of the area falls within four metres of an outdoor dining area unless there is a wall measuring at least 2.1 metres high in between.
“This rule stands whether the outdoor dining area is part of the same venue or a neighbouring venue, and whether you serve alcoholic or non-alcoholic beverages,” says Marx.
“With a standard urban road lane measuring less than four metres, this could mean penalties for venues both next to and across from diners on narrow streets and pedestrian walkways like Melbourne’s iconic laneways.
“The new ban also applies to both permanent and temporary venues, such as food fairs and street festivals, and includes tobacco, shisha tobacco and e-cigarettes.”
According to Marx, all dining and drinking venues should become familiar with the rules and possible defences applicable to their specific situation, particularly with issues such as enforceability in regards to smoking pedestrians passing by.
“All affected venues are legally responsible for making sure patrons understand the new law with the display of ‘no smoking’ signs,” says Marx.
“There is some uncertainty around the lengths venue operators will be expected to go to, particularly when dealing with third parties, in order to fully comply with the new laws and avoid the hefty fines.
“However, there are various conditions under which some venues would not be held liable such as the ability to prove they were not aware and could not reasonably be expected to have been aware of a breach, having asked the smoker to stop and making the person aware of the law and demonstrating they did not provide ashtrays or anything else to facilitate smoking.
“For outdoor drinking areas within four metres of a neighbouring outdoor dining area, they might not be held liable if the breach occurred within three months of establishment of the outdoor dining area, to allow time to make necessary adjustments to their venue.”