Smoke-Free Environment Act 2012

Link to law: http://www.gibraltarlaws.gov.gi/articles/2012-08o.pdf
Published: 2012-10-01

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I ASSENT 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.

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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.

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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.