11/06/24
Outdoor Dining Areas and Smoking – A reminder of the rules
Smoking is not permitted in enclosed public places or in outdoor dining areas pursuant to the Tobacco and E-Cigarette Products Act 1997 (Act).
Smoking, for the purposes of the Act, includes the use of cigarettes, e-cigarettes, vapes and shisha.
What is an enclosed public place?
A public place is defined in the Act as a place that the public has access to, and includes licensed premises (whether a hotel, small bar, function space or otherwise).
A place will be enclosed if it is either:
(a) fully enclosed (for example, all indoor areas or a hotel, bar or restaurant); or
(b) it is partially enclosed. A place (whether in part or full) will be partially enclosed if 70% or more of the area is covered by a wall or ceiling (for example, an outdoor area with four walls and a partial outdoor covering (whether retractable or otherwise) may be considered partially enclosed depending on the design).
What is an outdoor dining area?
An outdoor dining area is an area of the venue that:
(a) is not enclosed; and
(b) provides tables and chairs either permanently or on a temporary basis for the purposes of dining; and
(c) in which food is being offered for sale or is available for consumption in that area(s).
(see regulation 15 of the Tobacco and E-Cigarette Products Regulations 2019)
A beer garden or a footpath dining area may be considered to be an outdoor dining area (if food is available), unless that area has chairs only (no tables) or is separated from the (or a) outdoor dining area by a solid wall or barrier that is at least 2 meters in height.
Food includes any items that are available for purchase from a menu, but does not include snack food (for example, a packet of chips or nuts) or beverages.
The Act and associated Regulations provide flexibility for business operators to determine how outdoor dining areas are managed, including in different seasons. For example, members may:
(a) set a designated food service time for the outdoor area. During this time the area would be an outdoor dining area for the purposes of the Act and Regulations. Ashtrays should be removed from the area during times dining is permitted. Signage must be displayed informing patrons of the times the area is an outdoor dining area.
Example: a venue may designate an outdoor area as a dining area between 12pm and 2pm and 6pm and 8.30pm. During these times smoking would not be permitted in this area. The Hotel displays a sign which says “This is an outdoor dining area between the hours of 12 and 2pm and 6 and 8.30pm. Smoking is prohibited during these times.” While smoking would be permitted outside of these times, food would not be able to be served.
(b) where there are multiple outdoor areas, designate one outdoor area as a non-dining area where smoking is permitted, and the other outdoor area(s) as dining areas. There needs to be a clear delineation between the areas for them to be deemed separate areas.
(c) physically separate an existing area into two areas by erecting an impermeable barrier (permanent or temporary) that is at least 2 metres in height.
A number of councils now impose a smoking ban in respect of any outdoor area that is subject to a council issued outdoor dining permit (i.e. footpath area). This is irrespective of whether food is being served or not. Members should check the terms and conditions of their outdoor dining permits carefully.
Please note, staff are not allowed to deliver meals to tables which are located in an outdoor area when smoking is permitted in that area even if this is done at the request of the customer. The customer must collect their meal from the bar (for example) should they wish to eat in an outdoor area where smoking is permitted. It is recommended that members do not encourage or advertise this process, rather deal with it on an as required basis.
What signage is required?
Signage must be displayed:
(a) in enclosed public spaces which either says “no smoking” or “smoking prohibited” and contains the smoking prohibited symbol. Other words and symbols may be used provided they make it clear that smoking is not permitted; and
(b) in outdoor dining areas showing that smoking is not permitted either at all or during certain time periods.
There are no requirements as to the number of signs that must be displayed, however venues should ensure that signage is located in such a way that it is clear to patrons when and where smoking is permitted.
Signage is available from SA Health: click here.
Further information
Please contact the AHA|SA for further information.