BeanScene Magazine

New smoking ban on outdoor cafés takes effect from 1 August

From the July 2017 issue.

From 1 August, smoking in Victorian outdoor dining areas where food is provided, is banned.

Smokers will be banished from footpath dining areas such as cafés, pub courtyards, take-away shops and beer gardens where food is served on a commercial basis. The new ban also applies to permanent and temporary venues such as food fairs and street festivals, and includes tobacco, shisha tobacco and e-cigarettes.

The Victorian Parliament passed the Tobacco Amendment Act 2016 in October 2016 in order to reduce the harm caused by smoking and to support more Victorians to quit for good.

“From August 1, everyone will be able to enjoy meals outside, with family and friends, in fresh air and free from the deadly dangers of second hand smoke,” says Jill Hennessy, Minister for Health.

“Victoria has a vibrant outdoor café culture. We are lucky to have some of the best chefs serving up scrumptious food in our colourful hidden laneways and popular beer gardens. Now, thanks our new laws, smoking is off the menu.”

Smoking will be allowed however, in outdoor restaurants and pubs with a four-metre buffer between smokers and diners or a 2.1-metre tall café blind or wall.

There are no restrictions however when food isn’t being served, unless the venue owner decides to ban smoking entirely. So technically, if you’re enjoying a coffee at an outdoor shop that only serves snacks, it is permitted.

The Government defines a snack as a “pre-packaged shelf-stable food” that doesn’t require any preparation prior to serving. This includes chocolate bars, nuts and potato crips, but not hot chips or pre-packaged sandwiches.

Rigby Cooke Lawyers partner and hospitality law specialist Darren Marx says the new legislation could catch many businesses across the state unawares 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 cafés to suburban sports clubs and annual country shows,” Darren says.

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. Individuals who ignore the ban could be fined up to $793.

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,” Darren says. “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."

According to Darren, 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,” he says.

Victoria is the last state to impose the ban, Queensland and Western Australia outlawed smoking in outdoor dining areas in 2006. New South Wales and South Australia made the same ban last year.

Smoking remains the leading cause of preventable chronic disease and of preventable deaths. About 4000 lives are lost each year in Victoria due to smoking, costing $2.4 billion in healthcare costs and lost productivity.

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