Pubs say they can slide through loophole in smoking ban

By CATHERINE MASTERS and CLAIRE TREVETT

Some defiant publicans say they will flout the smoking ban which comes into force on December 10 - and they expect to get away with it.

Under the law, the boss or bar manager can escape a fine by showing they have a policy for dealing with smoking and have tried to stop it, whether successfully or not.

All they have to do is put up signs, remove ashtrays and verbally warn smokers to stop, according to oneof several pub owners who were unwilling to be named.

Because the law does not allow for individual smokers to be prosecuted, life can then carry on as normal.

"I'll put some planters around the pub with a couple of cactus and some sand so they can use that and I will have my staff telling people you're not allowed to smoke," the publican said. "But we won't be forcing people to remove their cigarettes or put them out and we won't be removing people from the premises."

Not all publicans agree. Others say they will embrace the extension of existing smokefree legislation which will see smoking banned from pubs, clubs, restaurants and cafes.

Steve Chadwick, the Labour MP responsible for pushing the amendment, conceded that the law could be difficult to enforce but said "it has the right teeth for a good bite".

It was more about education than enforcement and penalties, although there are penalties, and she expects it to be mostly self-policing.

"It's about a public sanction that 80 per cent of people who support the bill now can say to people when they are in a public space and someone lights up: 'Excuse me, you can't do that, it's against the law.' And that's the strongest sanction that the bill really gives."

The law says that individual proprietors are liable for a fine of up to $400, or $4000 for a body corporate, but will not be prosecuted if they have taken "all reasonably practicable steps" to stop people smoking.

However, the Ministry of Health cannot define what that means, leaving some publicans frustrated.

The new law has bred a new group of officials, called smokefree enforcement officers, who are being trained to police pubs and bars, going in with video cameras if they want to, and starting legal proceedings if necessary.

But they are not part of the police, there are only about 24 of them to cover thousands of premises and Ms Chadwick says prosecution is only likely for repeat offenders.

The Ministry of Health says fines are unlikely and the law will look after itself.

Complaints about breaches would be responded to, but there would be no surprise spot checks or frontline policing, said a spokesman.

But he also warned that any establishment which blatantly flouted the law would be prosecuted.

Only two workplaces have been prosecuted since smoke-free provisions were introduced in 1990.

The new rules may be more like a moral and voluntary code, but Ms Chadwick believes they will suffice.

Ireland introduced a similar ban in February and is already 98 per cent compliant, she says. The number of pub patrons has increased, not decreased, and people are returning to once-smoky bars they avoided.