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Smoke-Free Environment Act 2012


Published: 2012-10-01

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Smoke-Free Environment

© Government of Gibraltar (www.gibraltarlaws.gov.gi)

2012-08

SMOKE-FREE ENVIRONMENT ACT 2012

Principal Act

Act. No. 2012-08 Commencement 1.10.2012

Assent 25.9.2012

Amending

enactments

Relevant current

provisions

Commencement

date

Act. 2014-30 ss. 10A 23.10.2014

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ARRANGEMENT OF SECTIONS

Section

1. Title and commencement.

2. Interpretation.

3. Prohibition of smoking.

4. Public service vehicles.

5. Further prohibitions.

Exemptions

6. Private accommodation.

7. Accommodation for guests.

8. Other residential accommodation.

9. Performers.

10. Specialist tobacconists.

10A. Premises covered by a gaming operator’s licence.

11. Other exemptions.

No-Smoking Signs

12. No-smoking signs (premises and places).

13. No-smoking signs (vehicles).

Offences

14. No-smoking signs (offence).

15. Offence of smoking where it is prohibited.

16. Offence of failing to prevent smoking where it is prohibited.

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AN ACT TO PROHIBIT SMOKING IN CERTAIN PLACES, PREMISES

AND VEHICLES.

Title and commencement.

1. This Act may be cited as the Smoke-Free Environment Act 2012 and

comes into operation on the 1st October 2012.

Interpretation.

2.(1) In this Act, unless the context otherwise requires–

“no-smoking symbol” means a symbol which consists solely of a graphic

representation of a single burning cigarette enclosed in a red circle

with a red bar across it;

“public” includes a section of the public;

“smoking” refers to smoking tobacco or anything which contains

tobacco, or smoking any other substance, and includes being in

possession of lit tobacco or of anything lit which contains tobacco,

or being in possession of any other lit substance in a form in which

it could be smoked;

“work” includes voluntary work.

(2) For the purposes this Act, premises are enclosed if they−

(a) have a ceiling or roof; and

(b) except for doors, windows and passageways, are wholly

enclosed either permanently or temporarily.

(3) For the purposes this Act, premises are substantially enclosed if they

have a ceiling or roof but there is−

(a) an opening in the walls; or

(b) an aggregate area of openings in the walls,

which is less than half of the area of the walls, including other structures

that serve the purpose of walls and constitute the perimeter of the premises.

(4) In determining the area of an opening or an aggregate area of

openings for the purposes of subsection (3), no account is to be taken of

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openings in which there are doors, windows or other fittings that can be

opened or shut.

(5) In this Act “roof” includes any fixed or moveable structure or device

which is capable of covering all or part of the premises as a roof, including,

for example, a canvas awning.

Prohibition of smoking.

3. (1) Smoking is prohibited−

(a) in enclosed or substantially enclosed premises which are open

to the public;

(b) in enclosed or substantially enclosed premises which are used

as a place of work–

(i) by more than one person (even if the persons who work

there do so at different times, or only intermittently), or

(ii) where members of the public might attend for the

purpose of seeking or receiving goods or services from

the person or persons working there (even if members of

the public are not always present).

(2) Unless the premises also falls within subsection (1)(b), smoking is

only prohibited in premises by virtue of subsection (1)(a) during the time

that the premises is open to the public.

(3) If only part of the premises is open to the public or (as the case may

be) used as a place of work mentioned in subsection (1)(b), smoking is only

prohibited in that part of the premises.

(4) Sections 6 to 11 provide for some premises, or areas of premises,

where smoking is not prohibited despite this section.

(5) Premises are “open to the public” if the public or a section of the

public has access to them, whether by invitation or not, and whether on

payment or not.

Public service vehicles.

4. Smoking is prohibited at all times in any vehicle which is used or is

licensed to be used−

(a) as a public service vehicle under a road service licence issued

under the Transport Act 1998;

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(b) as a chauffeur-driven hire car under a chauffeur-driven hire car

operator’s licence issued under the Transport Act 1998;

(c) as an omnibus under a road passenger transport operator

licence issued under the Transport Act 1998; or

(d) other than as set out above, under an operator licence issued

under the Transport Act 1998.

Further prohibitions.

5.(1) The Minister with responsibility for Health may make regulations

prohibiting smoking in any premises, vehicle, place or description of place

where smoking is not otherwise prohibited under this Act.

(2) The premises, vehicle, place, or places falling within the description,

need not be enclosed or substantially enclosed.

(3) The Minister may designate a place or description of place under

this section only if in his opinion there is a significant risk that, without a

designation, persons present there would be exposed to significant quantities

of smoke or it is otherwise in the interest of public health for him to do so.

(4) The regulations may provide for smoking to be prohibited in such

places, or places falling within the description, only−

(a) in specified circumstances,

(b) at specified times,

(c) if specified conditions are satisfied,

(d) in specified areas,

or any combination of those.

Exemptions

Private accommodation.

6.(1) Smoking is not prohibited in a private dwelling except for any part

of it which is−

(a) used in common in relation to more than one set of premises

(including premises so used in relation to any other private

dwelling or dwellings); or

(b) used solely as a place of work (other than work that is excluded

by subsection (2)) by−

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(i) more than one person who does not live in the dwelling,

(ii) a person who does not live in the dwelling and any

person who does live in the dwelling, or

(iii) a person (whether he lives in the dwelling or not) who in

the course of his work invites persons who do not live or

work in the dwelling to attend the part of it which is used

solely for work.

(2) There is excluded from subsection (1)(b) all work that is undertaken

solely−

(a) to provide personal care for a person living in the dwelling;

(b) to assist with the domestic work of the household in the

dwelling;

(c) to maintain the structure or fabric of the dwelling; or

(d) to install, maintain or remove any service provided to the

dwelling for the benefit of persons living in it,

except during the time that such work is being carried out.

(3) In this section, “private dwelling” includes self-contained residential

accommodation for temporary or holiday use and any garage, outhouse or

other structure for the exclusive use of persons living in the dwelling.

Accommodation for guests.

7.(1) Smoking is not prohibited in a designated bedroom in a hotel, guest

house, inn, or hostel.

(2) In this section “a designated bedroom” means a room which−

(a) is set apart exclusively for sleeping accommodation;

(b) has been designated in writing by the person having the charge

of the premises in which the room is situated as being a room

in which smoking is permitted;

(c) has a ceiling and, except for doors and windows, is completely

enclosed on all sides by solid, floor-to-ceiling walls;

(d) has a ventilation system that does not ventilate into any other

part of the premises (except any other designated bedrooms);

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(e) does not have any door that opens onto premises where

smoking is prohibited which is not mechanically closed

immediately after use; and

(f) is clearly marked as a bedroom in which smoking is permitted.

(3) In this section “bedroom” does not include any dormitory or other

room that a person in charge of premises makes available under separate

arrangements for persons to share at the same time.

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Other residential accommodation.

8.(1) Smoking is not prohibited in a designated room that is used as

accommodation for persons aged 18 years or over in the premises specified

in subsection (2).

(2) The specified premises are−

(a) care homes;

(b) hospices which as their whole or main purpose provide

palliative care for persons resident there who are suffering

from progressive disease in its final stages;

(c) prisons; and

(d) a hospital, as defined in and for the purposes of, the Mental

Health Act.

(3) In this Act “designated room” means a bedroom or a room used only

for smoking which−

(a) has been designated in writing by the person having charge of

the premises in which the room is situated as being a room in

which smoking is permitted;

(b) has a ceiling and, except for doors and windows, is completely

enclosed on all sides by solid, floor-to-ceiling walls;

(c) has a ventilation system that does not ventilate into any other

part of the premises (except any other designated rooms);

(d) is clearly marked as a room in which smoking is permitted;

(e) except where the room is in premises under subsection (2)(c)

or (d), does not have any door that opens onto premises where

smoking is prohibited which is not mechanically closed

immediately after use; and

(f) where the room is a bedroom, it is not used to accommodate

more than one person.

Performers.

9. Where the artistic integrity of a performance makes it appropriate for a

person who is taking part in that performance to smoke, smoking by him

during such performance is not prohibited.

Smoke-Free Environment

© Government of Gibraltar (www.gibraltarlaws.gov.gi)

2012-08

Specialist tobacconists.

10.(1) Smoking is not prohibited in such part of the shop of a specialist

tobacconist that is being used by persons who are sampling cigars and pipe

tobacco for the duration of that sampling if the part of it being used for the

sampling−

(a) has a ceiling and, except for doors and windows, is completely

enclosed on all sides by solid, floor-to-ceiling walls;

(b) does not have a ventilation system that ventilates into any

smoke-free premises;

(c) does not have any door that opens onto smoke-free premises

which is not mechanically closed immediately after use;

(d) is clearly marked as premises in which smoking is permitted;

and

(e) the part of the shop has been approved for the use of persons

sampling cigars and pipe tobacco by the Minister with

responsibility for Health in consultation with the Director of

Public Health.

(2) The Minister with responsibility for Health shall publish in the

Gazette any approvals made under subsection (1)(e).

Premises covered by a gaming operator’s licence.

10A 1 .(1) Smoking is not prohibited in part of an establishment covered by a

gaming operator’s licence–

(a) if such part–

(i) has a ceiling and, except for doors and windows, is

completely enclosed on all sides by solid, floor-to-ceiling

walls;

(ii) does not have a ventilation system that ventilates into

any smoke-free premises;

1 Calculation of additional discount in accordance with section 277B of the Public

Health Act.

The part of a hereditament which is subject of an approval made in accordance with

section 10A of the Smoke-Free Environment Act 2012 shall not attract an additional

discount in accordance with section 277B of the Public Health Act.

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2012-08

(iii) does not have any door that opens onto smoke-free

premises which is not mechanically closed immediately

after use;

(iv) is clearly marked as premises in which smoking is

permitted; and

(v) has been approved for the purposes of this section by the

Minister with responsibility for Gambling in consultation

with the Minister with responsibility for Health and the

Director of Public Health; and

(b) the condition set out in subsection (2) and such other

conditions as may be made with respect to the particular

approval in accordance with subsection (3) are complied with.

(2) It shall be a condition of any approval made under this section that–

(a) notwithstanding any licence which would otherwise have

effect, the sale by retail of alcohol for consumption on the

premises is not permitted within the part of the establishment

to which the approval relates; and

(b) the part of the establishment to which the approval relates has a

ventilation system approved for the purposes of this section by

the Minister with responsibility for Gambling in consultation

with the Minister with responsibility for Health and the

Director of Public Health.

(3) An approval made under this section may, in addition to the

condition set out in subsection (2), include such conditions as the Minister

with responsibility for Gambling deems appropriate.

(4) The Minister with responsibility for Gambling shall publish in the

Gazette any approval made under subsection (1)(a)(v).

(5) In this section “gaming operator’s licence” means a gaming

operator’s licence issued in accordance with the Gambling Act 2005.

Other exemptions.

11.(1) The Minister with responsibility for Health may make regulations

providing for smoking not to be prohibited in specified descriptions of

premises, or specified areas within specified descriptions of premises,

despite the provisions of sections 3 to 5.

(2) The power to make regulations under subsection (1) is not

exercisable so as to specify any description of premises in respect of which

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a licence authorising the sale by retail of alcohol for consumption on the

premises has effect.

(3) Subsection (2) does not prevent the exercise of that power so as to

specify any area, within a specified description of premises mentioned in

subsection (2), where a person has his home, or is living whether

permanently or temporarily.

(4) The regulations may provide, in relation to any description of

premises or areas of premises specified in the regulations, that smoking is

not prohibited in the premises or areas−

(a) in specified circumstances,

(b) if specified conditions are satisfied, or

(c) at specified times,

or any combination of those.

(5) The conditions may include conditions requiring the designation in

accordance with the regulations, by the person in charge of the premises, of

any rooms in which smoking is to be permitted.

(6) The Minister shall prior to making regulations under this section

consult the Director of Public Health as to the public health consequences of

such regulations being implemented.

(7) Regulations made under this section shall be laid by the Minister in

Parliament and shall come into effect after they have been approved by

resolution in Parliament moved by a Minister.

Smoke-Free Environment

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2012-08

No-Smoking Signs

No-smoking signs (premises and places).

12.(1) A person who occupies or is concerned in the management of

premises or a place (other than a vehicle) in which smoking is prohibited by

or under this Act shall ensure that no-smoking signs complying with the

requirements of this section are prominently displayed at each entrance to

the premises or within the place.

(2) The sign shall consist of the no-smoking symbol and the words “No

smoking. It is against the law to smoke in these premises” beneath in

characters that can be easily read by persons using the entrance; the size of

the sign shall be no less than 20 centimetres in height and 15 centimetres in

width.

(3) For the words required by subsection (2) there may be substituted

words which differ only in that for "these premises" there are substituted

words which refer to the particular premises or place in which a sign is

displayed .

No-smoking signs (vehicles).

13.(1) Any person with management responsibilities for a vehicle in which

smoking is prohibited under section 4 shall ensure that at least one no-

smoking sign is displayed in a prominent position in each compartment of

the vehicle.

(2) In subsection (1)−

“compartment” includes each part of a vehicle which−

(a) is constructed or adapted to accommodate persons; and

(b) is, or may from time to time be, wholly or partly covered by a

roof;

“no-smoking sign” means a sign which displays the no-smoking symbol

where the symbol is at least 7.5cm in diameter; and

“person with management responsibilities” includes the operator of the

vehicle, the holder of a licence under the Transport Act 1998 under

which the vehicle is or may be operated, the driver of the vehicle

and any person on the vehicle who is responsible for order or safety

on it.

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(3) The Minister with responsibility for Health may by regulations make

provision requiring the display of no-smoking signs in vehicles where

smoking is prohibited by virtue of regulations made by him under section 5.

Offences

No-smoking signs (offence).

14.(1) A person who fails to comply with the duty in section 12(1) or 13(1)

or regulations made under section 13(3) commits an offence and is liable on

summary conviction to a fine at level 3 on the standard scale.

(2) It is a defence for a person charged with an offence under subsection

(1) to show−

(a) that he did not know, and could not reasonably have been

expected to know, that smoking on the premises, at the place or

in the vehicle was prohibited, or

(b) that he did not know, and could not reasonably have been

expected to know, that no-smoking signs complying with the

requirements of this section were not being displayed in

accordance with the requirements of this section, or

(c) that on other grounds it was reasonable for him not to comply

with the duty.

(3) If a person charged with an offence under subsection (1) relies on a

defence in subsection (2), and evidence is adduced which is sufficient to

raise an issue with respect to that defence, the court must assume that the

defence is satisfied unless the prosecution proves beyond reasonable doubt

that it is not.

Offence of smoking where it is prohibited.

15.(1) A person who smokes in contravention of a prohibition imposed by

or under this Act commits an offence and is liable on summary conviction

to a fine at level 3 on the standard scale.

(2) It is a defence for a person charged with an offence under subsection

(1) to show that he did not know, and could not reasonably have been

expected to know, that smoking on the premises, at the place or in the

vehicle was prohibited,.

(3) If a person charged with an offence under this section relies on a

defence in subsection (2), and evidence is adduced which is sufficient to

raise an issue with respect to that defence, the court must assume that the

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defence is satisfied unless the prosecution proves beyond reasonable doubt

that it is not.

Offence of failing to prevent smoking where it is prohibited.

16.(1) It is the duty of any person who controls or is concerned in the

management of premises, a place or a vehicle where smoking is prohibited

to cause any person smoking there to stop smoking where that person is

smoking in contravention of a prohibition imposed by or under this Act.

(2) A person who fails to comply with the duty in subsection (1)

commits an offence and is liable on summary conviction to a fine at level 3

on the standard scale.

(3) It is a defence for a person charged with an offence under subsection

(2) to show−

(a) that he took reasonable steps to cause the person in question to

stop smoking, or

(b) that he did not know, and could not reasonably have been

expected to know, that the person in question was smoking, or

(c) that on other grounds it was reasonable for him not to comply

with the duty.

(4) If a person charged with an offence under this section relies on a

defence in subsection (3), and evidence is adduced which is sufficient to

raise an issue with respect to that defence, the court must assume that the

defence is satisfied unless the prosecution proves beyond reasonable doubt

that it is not.