Cigs and a pintSmoke Upstairs!

Landlords: if you both live in and run a public house, did you realise that your customers CAN smoke inside?

Your living quarters are exempt from the smoking ban, so as long as your pub's licence allows off sales, you may invite customers to take their drinks upstairs and smoke in comfort without infringing any laws whatsoever.

Not only that, but you may hire staff to keep upstairs just as clean as downstairs – even while guests are smoking there.

Introduction

As everyone by now will be aware, since July 2007 smoking in indoor workplaces and places open to the public has been totally outlawed by one of the world's strictest pieces of public smoking legislation. Unlike the majority of our European neighbours, the historic association of public houses with smoking was consciously ignored, and landlords were granted neither licensed exemptions nor specialised smoking rooms which might help them hold onto their customers and provide choice to the marketplace. Few landlords will be willing to risk the severe financial penalties for disobeying this 'zero tolerance' prohibition. Many will see no alternative but to cut their losses and close down; the remainder that soldier on will never be the same due to customers constantly shuffling back and forth from warm bar to cold doorstep, never being able to truly get comfortable and probably spending less time there as a result. And to cap it all, every single pub must (under threat of fines) display large state-sanctioned "no smoking" signs at their entrances, serving no useful purpose other than to remind them of the choice that has now been taken away from them.

But the ban is not quite as total as one might think.

There is one key exemption in the law which, rather than being used as a "loophole", can be legitimately used to provide indoor smoking facilities for your customers. If part of your premises is used as a private dwelling, i.e. lived in by someone, it becomes exempt from the smoking ban. This means, if your premises licence allows off sales, you can simply invite customers to smoke in your private dwelling as guests.

You don't have to live "above" your pub; this page only talks in these terms because living upstairs is the most common scenario with pub premises. Your living quarters may of course be on the same floor, adjoining the bar area. Where your dwelling is located in relation to the bar is of no consequence, although obviously it helps if it is in close proximity to minimise the distance customers have to walk to get drinks. If your pub does not currently have living quarters or if you want to extend your existing dwelling, you can easily create dwelling space by partitioning off, de-licensing, and changing official use of any amount of space inside your pub. This makes this exemption accessible to virtually any licensed premises with the will to utilise it.

Rules of operation

If you wish to start smoking upstairs, there are five very important rules to follow:

  1. The private dwelling must be bona fide and officially recognised.
    Any space you use for smoking must be officially recognised as a private dwelling and must have a resident, which would most commonly be you (as the landlord). The resident would not have to actually live there; they would only have to be able to live there at any time they choose. It is NOT sufficient to just attach a 'private' sign to the door of any room in your pub for this exemption to apply, because the authorities will still recognise the room as a licensed non-domestic space. The 'open to the public' and 'voluntary work' triggers will still apply, just like in the rest of your pub. The ONLY way to extend your dwelling downstairs (or create one within the building) is to take the necessary steps with your local licensing and planning departments, which are:
    1. Removing the room from the licensed area, by contacting your council licensing department and asking to amend the premises plan attached to your Premises Licence.
    2. Applying for an official change of use of this area from "drinking establishment" (class A4) to "dwelling house" (class C3) by contacting your council planning department. You may be required to make appropriate structural and infrastructural modifications before they grant permission, such as merging electrical and water systems with those of your dwelling if they are billed separately from those of the main bar.
    3. Making sure your dwelling is classified as such for council tax purposes.
  2. All guests must be invited directly by the resident.
    As mentioned in the "legal background" section, the Health Act does not prevent smoking in a private dwelling open to members of the public, so leaving the door open for anyone to enter without invitation is technically legal; however, doing things this way could potentially put you at risk of falling foul of entertainment licensing and planning rules, and could also invalidate your home insurance. Council officers will also have free rein to enter and gather evidence they might use against you. Selectively choosing your guests at your leisure gives you full control over who may enter and in what numbers at what times, allows you to provide licensable entertainment to your guests, complies with standard home insurance policies, and is generally more consistent with the normal function of a dwelling which will keep planning departments happy. This doesn't mean that regulars have to be invited every visit; the basic principle here is that each individual person must have been invited by you to enter your private space at least once, and that no stranger should be able to turn up and go straight in as if your dwelling were part of the pub. It would also be wise not to let people ask to be invited; they should wait to be invited by you, to make it clear that your dwelling is not "entry on request". The person who does the inviting doesn't have to be the resident; just like with any other house, you can leave others whom you trust in charge of it and allow them to issue invitations, for example any member of your pub staff who's on duty when you're away.
  3. The pub premises licence must allow off consumption.
    Your premises licence must allow consumption off the premises or no purchased drinks can be removed from the licensed area; if your licence doesn't allow it, you must obtain a variation. Some councils may, for the stated reason of "prevention of disorder", insist that off sales be only in sealed containers and consumed off the licensed premises. You could try to have this restriction removed, but if this is not possible, you would have to make sure that all drinks sold to be consumed outside or upstairs are in bottles, cans or custom made sealable containers used for carry-outs, and that they are not opened until they have been taken out of the licensed area.
  4. Cleaning staff must be employed as domestic workers.
    If you want to let your pub bar staff clean up the tables, seating, ashtrays and glassware in your dwelling, they'll have to be employed separately as domestic workers, since that type of work is exempted and all the tasks they'd have to do are consistent with domestic work. That means separate contracts and separate payments so the two jobs cannot be considered as one.
  5. Keep your nose clean.
    Even though your use of your dwelling in this way is perfectly legal, if news of its success becomes an embarassment to your local council, they will probably be on the lookout for any possible excuse to shut you down, even if it's nothing to do with the smoking ban. While attention is on you, make sure that nothing you're doing, either in your dwelling or in your pub, infringes any laws or regulations whatsoever, as there will be a far higher probability that it will be found out and used to inflict maximum damage on your business. Make sure all your fire and electrical apparatus meets safety standards and that your staff areas comform to health and safety regulations. Keep an eye out for underage stings. Always make sure you close your bar on time. Always make sure noise from your premises or from patrons leaving the premises is kept to an absolute minimum to avoid opportunistic "public nuisance" accusations. And obviously, make sure nobody ever smokes in the downstairs licensed area.

Guests' comfort

You may provide any of the following in your dwelling for your guests' comfort:

You may NOT legally provide any of the following:

Legal background

The Health Act, otherwise known as the "smoking ban law", considers private dwellings to be different from all other kinds of premises and offers them a near-complete exemption. If you have a private dwelling as part of your pub, unless you use any part of it solely for work purposes, the smoking ban does not cover it. Here we will examine what the law says and the ways in which it should be interpreted.

We know that "private dwellings" are exempt, but the meaning of "private dwelling" is not explicitly defined in the Health Act or its associated regulations (although we know it includes temporary or holiday accommodation). We must therefore build a picture from other sources of what it is generally taken to mean.

Frequently asked questions

Is this a "loophole" in the smoking ban?

No. A loophole implies an ambiguity in the wording of the legislation which would allow actions contrary to the legislation's intended purpose. Landlords allowing personal guests to smoke in their own private dwellings is a legitimate application of the exemption wholly in keeping with its intended purpose. You are merely utilising part of the law in a way of which you would otherwise have been unaware.

Wouldn't this contravene planning regulations?

No. Planning regulations only become involved if a "material change of use" of the dwelling occurs. Personally inviting guests into ones residence for non-commercial purposes is entirely consistent with use as a dwelling.

What if my pub has plenty of space but my dwelling is too small?

In most cases you can simply convert some of your pub floor space into an extension of your dwelling. The customers stay downstairs just as before -- except your dwelling will have grown to encompass them. Make sure to do the conversion "by the book"; see rule no.1 in rules of operation above.

Further information

Although the letter of the law is very clear about the private dwelling exemption, because it hasn't yet been tested in the courts, few lawyers will be willing to rubber-stamp utilising it in this way. Therefore, if you choose to follow the above advice, you do so at your own risk.

If you want to try to find a solicitor (or council Environmental Health department) who will offer an opinion, try asking them the following question:

"I own a pub which is licensed to supply alcohol for consumption on and off the premises. My private dwelling is above the pub. Would I be staying within the law by inviting people with or without drinks purchased at my bar into my dwelling and letting them smoke, while at the same time employing domestic staff to keep it clean?"

If they at first suggest you wouldn't be staying within the law, quote some of the facts listed under "legal background".

If you want to ask the author of this page any questions, use the form below:

Last updated 2009-12-20 19:00 America/Chicago