Please note that the answers given here are only an interpretation of the legal requirements, not a definitive legal judgement. Only the courts can give a definitive judgement on the meaning of legislation.
If you have a question that isn't covered here, please email it to smokefree@wealden.gov.uk for a personal response. We may also add it to this page if it's relevant to businesses.
1. What do you mean by a substantially enclosed place?
2. I already have a smoking area inside my pub so I comply with the law, don’t I?
3. Everyone who works here smokes so they don’t need to go outside, do they?
4. The law doesn’t apply to private members’ clubs, does it?
5. Where do I have to put my No Smoking signs?
6. Does the smoking ban apply to customers and visitors?
7. I smoke herbal cigarettes, which are not harmful. Does the ban apply to me?
8. Does the ban apply to pipe smoke and cigars?
9. Who enforces these new smoke free laws?
11. What are the fines if someone is caught breaking the law?
12. At our village hall we put on theatrical productions. Are the actors allowed to smoke?
15. A customer in my shop refuses to put out a cigarette when asked. What can I do?
16. Can I ban smoking outside if it’s part of my premises?
17. My boss refuses to stop smoking in his office. What can I do?
18. I’m a tobacconist and I’ve heard the new laws don’t apply to me. Is that right?
20. Do I have to provide smoking breaks or outside smoking areas for my staff?
21. What happens if my customers are a little noisy while they smoke outside my premises?
24. Are door supervisors going to receive any extra training to deal with the No Smoking laws?
26. Are my customers allowed to smoke on the street outside my premises?
28. Does the smoking ban apply to the cab of my taxi?
29. Do cars and vans have to display No Smoking signs?
30. I provide my own car for work. The smoking ban doesn’t apply to me, does it?
32. If you don’t let me have smoking breaks you’re infringing my human rights, aren’t you?
33. What happens if my customers throw their cigarette butts on the ground when smoking outside?
34. Do I need to provide extra bins or ashtrays outside for smokers?
35. What do I need to do if I want to put up an outdoor smoking shelter?
37. When will the walls of my building count as part of my smoking shelter?
38. How big a shelter am I allowed?
40. Why can’t I smoke in the corridor outside my bedsit?
42. I own several blocks of flats. I don’t need to put up No Smoking signs, do I?
1. What do you mean by a substantially enclosed place?
To be substantially enclosed the structure will have a roof, and openings in the walls (excluding windows and doors, which can be closed) represent 50% or less of total wall area. This is called the ‘50% rule’.
2. I already have a smoking area inside my pub so I comply with the law, don’t I?
The new laws prohibit smoking inside any enclosed or substantially enclosed public place or workplace, so people will have to go outside to smoke.
3. Everyone who works here smokes so they don’t need to go outside, do they?
The new laws prohibit smoking inside any public place or workplace, irrespective of whether everyone smokes or not. Everyone will have to go outside to smoke.
4. The law doesn’t apply to private members’ clubs, does it?
While your club may be private it is still a public place where non smokers can be affected by other people’s smoke. Therefore, no one will be allowed to smoke inside.
5. Where do I have to put my No Smoking signs?
They must be put in a clearly visible position at all entrances to the building so anyone entering knows they are not allowed to smoke.
6. Does the smoking ban apply to customers and visitors?
The ban applies to anyone inside an enclosed or substantially enclosed public space or workplace. There are a few limited exemptions in certain circumstances for occupied rooms, such as hotel rooms or rooms in care homes, but otherwise the ban covers employers, workers, visitors and customers.
7. I smoke herbal cigarettes, which are not harmful. Does the ban apply to me?
There is no distinction between types of cigarette, or with cigars and pipes. The ban is on smoking within any enclosed or substantially enclosed public space or workplace.
8. Does the ban apply to pipe smoke and cigars?
There is no distinction between types of cigarette, or with cigars and pipes. The ban is on smoking within any enclosed or substantially enclosed public space or workplace.
9. Who enforces these new smoke free laws?
District or Borough Councils will enforce the new laws. In many cases this will be environmental health practitioners, who already have experience of law enforcement. Initially, officers will take an informative approach to seek compliance through persuasion and guidance. However, the council will take firmer action against persistent or troublesome offenders.
10. I have a customer who refuses to stop smoking inside my pub, even though I’ve told him he’s breaking the law? Why am I still liable?
Both individuals who smoke, and the person in control of a smoke free premises where a smoking offence takes place, are breaking the law. As the person in control can be fined up to £2500 for an offence, you may wish to ban customers who refuse to comply with the new laws.
11. What are the fines if someone is caught breaking the law?
The regulations propose that the maximum fine on conviction for an offence relating to the display of no-smoking signs is currently £1000. Where the fixed penalty procedure is used for an alleged offence relating to the display of no-smoking signs, the fixed penalty is £200 and a discounted amount of £150 if the penalty is paid within 15 days from when the notice is issued.
The regulations propose that the maximum fine on conviction for an offence of smoking in a smoke free place is currently £200. Where the fixed penalty procedure is used for an alleged offence of smoking in a smoke free place, the fixed penalty is £50 and a discounted amount of £30 if the penalty is paid within 15 days from when the notice is issued.
Section 8 of the Health Act 2006 places a legal duty on any person who controls or is concerned in the management of smoke free premises to cause a person there to stop smoking. The regulations propose that the maximum fine on conviction for failing to prevent smoking in a smoke free place is currently £2500. There is no fixed penalty notice for this offence.
12. At our village hall we put on theatrical productions. Are the actors allowed to smoke?
Where the artistic integrity of a performance makes it appropriate for a person
who is taking part in that performance to smoke, the regulations allow for parts of premises in which a person performs to be not smoke free in relation to that person only during the time of the performance.
13. We hire our village hall for wedding receptions. As these are private functions is smoking still banned?
While a wedding reception or birthday party may be private in the sense that people have to be invited, the hall is still an enclosed public place and smoke free. Equally, if people are employed or working there, such as a DJ or caretaker, then the village hall is a workplace, which must be smoke free.
14. I work in a care home and I’ve been told I must work with a resident who regularly smokes. Can I refuse?
Residents can smoke inside their rooms, provided the room doesn’t ventilate directly into a public area within the building. Therefore, you can only ask them to stop smoking. You will need to discuss this with your employer to try and reach a workable solution if you are concerned about the effects on your health.
15. A customer in my shop refuses to put out a cigarette when asked. What can I do?
You can ask them to leave immediately as they are breaking the law, and causing you to break the law too. You can also refuse them access to your shop in the future.
16. Can I ban smoking outside if it’s part of my premises?
If you own the land and it is part of your premises then you can ban smoking on any part. The NHS has already taken this step so that no one can smoke on hospital premises, either inside or outside.
17. My boss refuses to stop smoking in his office. What can I do?
Your boss is committing an offence as it will be illegal to smoke inside any enclosed workplace. He can be fined for this, either by fixed penalty notice or in court. As you could be end up in a dispute if you refuse to enter your boss’s office you may wish to take legal advice on your rights first.
18. I’m a tobacconist and I’ve heard the new laws don’t apply to me. Is that right?
The regulations allow specialist tobacconists (as listed in the Tobacco Advertising and Promotion Act 2003) to be not smoke free for the time they are used for persons sampling cigars and pipe tobacco, if the following conditions are
met in designated rooms in these premises:
19. I’m a sales rep and my boss told me I’m not allowed to smoke in my car at any time, whether I’m working or not. That can’t be right, can it?
Any vehicle used for work comes under the definition of a workplace, so if it enclosed it will need to comply with the new laws. However, vehicles will not be required to be smoke free if they are used primarily for the private purposes of a person who:
a. owns it, or
b. has a right to use it which is not restricted to a particular journey
20. Do I have to provide smoking breaks or outside smoking areas for my staff?
By law, employers must give staff an uninterrupted rest break of 20 minutes when their daily working time is more than six hours. Staff can, of course, smoke during their rest period, if they choose, but they must not smoke in an enclosed or substantially enclosed area. As an employer you must decide whether or not to permit smoking elsewhere on your premises eg in open car parks, grounds, or shelters and you should indicate where smoking is allowed in your smoking policy.
21. What happens if my customers are a little noisy while they smoke outside my premises?
A little noise may not be a problem. However, under the Environmental Protection Act 1990, action may be taken for noise amounting to a statutory nuisance. The Council expects owners and occupiers of premises to take reasonable steps to ensure that staff and customers do not cause a noise nuisance when they are outside.
22. One of my customers has complained about walking through the crowd of smokers around the entrance? Can I do anything about this?
You could consider providing some form of shelter for smokers in a location that is away from any entrance and where cigarette smoke will not drift across other property. Please remember the planning rules and obtain permission before erecting any form of shelter.
23. My neighbour has complained about cigarette smoke from my customers going into her house. There’s nothing I can do about that, is there?
If the smoke from your staff or customers gives rise to a statutory nuisance at a neighbouring property, then the Council could take action to prevent this. The onus is on you to ensure that such a situation does not arise.
24. Are door supervisors going to receive any extra training to deal with the No Smoking laws?
This will be a matter for the owner or occupier of the premises to decide. Door Supervisors, and others, requiring guidance should go to the advisory pages on the Council’s website. Here you will find links to other websites that also offer advice.
25. My neighbours sit outside and smoke on their patio on summer evenings. The smoke drifts in through my bedroom window. Will the new laws deal with this?
The new laws do not prevent smoking on residential property. It is also most unlikely that existing nuisance legislation could be used in this situation.
26. Are my customers allowed to smoke on the street outside my premises?
Yes. However, if you run a licensed premises, the Licensing Act 2003 requires that you take reasonable steps, in the vicinity of your premises, to prevent customers causing public nuisance or disorder.
27. Sometimes, I allow a few friends to stay on in the bar after closing time. The doors are locked so I can allow them to smoke, can’t I?
No. Regardless of whether the premises are open for business, this is still a “workplace” as defined in the legislation.
28. Does the smoking ban apply to the cab of my taxi?
Yes. Vehicles are also considered to be workplaces where they are primarily used for business purposes.
29. Do cars and vans have to display No Smoking signs?
Yes. The regulations require that a sign showing the “no smoking” symbol, at least 70mm in diameter, is displayed in a prominent position in each compartment of any vehicle that's a workplace.
30. I provide my own car for work. The smoking ban doesn’t apply to me, does it?
If you are required to carry other people in your car then it must be smoke free when used for work.
31. As the law doesn’t apply to smoking in the open air you can’t stop me smoking on your land, can you?
This will be subject to further discussion with staff, although the law does not extend to “the open air” a number of other local authorities have already banned smoking on their land.
32. If you don’t let me have smoking breaks you’re infringing my human rights, aren’t you?
No, because there is no protection under the Human Rights Act in respect of any “right to smoke”.
33. What happens if my customers throw their cigarette butts on the ground when smoking outside?
If the land is publicly owned then the person who throws the cigarette butt is committing an offence and may be liable to a fixed penalty fine.
If the land is private then it is the owner of the lands responsibility to keep the area free from causing a nuisance re litter – in this regard cigarette butts are not likely to cause a nuisance.
34. Do I need to provide extra bins or ashtrays outside for smokers?
No, but you may wish to avoid litter accumulations or to avoid litter being dropped on public land which would constitute an offence.
35. What do I need to do if I want to put up an outdoor smoking shelter?
Once you have established your plans in terms of siting and the size of the shelter, you should seek professional advice from a Planning Officer (01892 602579). In most cases, you will need planning permission. This is always the case where permanent structures are proposed. (Public Houses and restaurants do not have ‘permitted development’ rights to build such structures). It is possible that temporary (i.e. portable structures), such as umbrellas/parasols can be stationed within the grounds of the public house or restaurant without needing planning permission. In all cases you should check first with a Planning Officer.
You are also advised to check whether you need approval under the Building Regulations, which concern, for example, structural safety or means of escape etc
36. During autumn and winter I’m going to put up a large parasol for smokers in my beer garden? Do I still need planning permission?
Temporary umbrellas/parasols would not normally require the grant of planning permission where they are not permanently affixed to the ground. Weighted bases for such umbrellas do not constitute new engineering works, and hence can be used as a solution without the need for planning permission.
37. When will the walls of my building count as part of my smoking shelter?
If a permanent structure is being erected against the wall(s), planning permission and building regulation approval will always be needed. Even where temporary constructions involving tarpaulins or sheeting are rigged alongside a wall to create a covered area, it is likely planning permission will be needed. An independently supported parasol, sited alongside a wall is unlikely to need planning permission.
38. How big a shelter am I allowed?
There are no permitted development rights for public houses, so all sizes of shelter will need planning permission.
39. I live in a block of flats and I heard you’re not allowed to smoke anywhere. That can’t be right, can it?
You're allowed to smoke inside your room as this is your home, but not in any common parts, such as hallways, landings or corridors.
40. Why can’t I smoke in the corridor outside my bedsit?
Because this is a common part that will be used by other people, who will be exposed to second hand smoke.
41. I work as a plumber in other people’s houses. As smoking is banned in the workplace they’ll have to stop while I’m working there, won’t they?
The law does not apply to people's homes, so you cannot demand that they stop smoking while you are there.
42. I own several blocks of flats. I don’t need to put up No Smoking signs, do I?
'No Smoking' signs need to be displayed prominently at the entrance to all flats to indicate that the common parts are smoke free
43. I run a holiday caravan park with amenity and recreational buildings. How do the rules affect me?
Visitors can smoke inside their caravans, but any public buildings must be smoke free to protect non-smokers from second hand smoke. As the owner of the caravan park you can make all your caravans smoke free if you wish, just like a hotel can.