Smokefree outdoor eating areas – information for owner/occupiers

Smoking is prohibited in outdoor eating areas in Western Australia (WA).

A person must not smoke in an outdoor eating area unless the place in which the person is smoking is a smoking zone.

An outdoor eating area is a public place or part of a public place that is:

  • provided on a commercial basis, as an area where food or drink may be consumed by people sitting at tables
  • not an enclosed public place.

Smoking bans will apply in outdoor eating areas, where people eat and or drink while sitting at tables, for example restaurants, cafes, delis, lunch-bars and other food outlets.

Liquor licensed premises

The responsible person (owner/occupier) of a liquor licensed premise that is not the subject of a restaurant licence may allocate a smoking zone up to 50 per cent of all outdoor eating areas, provided the area is not already an enclosed public place.

A smoking zone is a place in a liquor licensed premise that:

  • is not in a place on the premise to which a restaurant licence applies
  • is an outdoor eating area at the premise
  • has a total area not more than 50 per cent of the whole area of that outdoor eating area.

Adequate measures must be taken to ensure that smoking and non-smoking areas are clearly delineated at all times. This is to ensure that the boundary between the zones is clearly identifiable to a person in either zone.

Owners/occupiers of licensed premises are encouraged to reduce the potential of tobacco smoke exposure on their patrons and smoking in their premises generally, including outdoor eating areas, and can elect to ban smoking entirely in their licensed premises.

Signs in liquor licensed premises

All non-smoking areas must be designated with a sufficient number of signs in locations that are clearly visible to a person at a public entrance to the area and within the designated smoking area.

No Smoking, Smoking Prohibited or the no smoking symbol signs must be displayed clearly as described above.

The Department of Health will provide suitable signage to assist businesses and local government to communicate restrictions.

Staff in liquor licensed premises

Staff working in a liquor licensed premise must not be forced to provide service in a smoking zone and cannot be dismissed for refusing to do so.

Enforcement

Local government has primary responsibility for enforcing matters about smoking in outdoor eating areas.

The Tobacco Products Control Act 2006 (external site) allows local governments to appoint environmental health officers or additional officers, for example rangers, to assist with enforcement.

There is a very high level of public support for this legislation – most members of the Western Australian public comply.

Penalties

If a smoking offence is committed in an outdoor eating area then the following penalties may be imposed on the person responsible:

  • maximum court imposed penalty – $2000
  • infringement notice – $300.

Owner/occupier responsibilities

The owner/occupier also commits an offence if a person commits the offence of smoking in an outdoor eating area.

To have a defence against this charge the owner/occupier must prove:

  • they were not aware of the offence being committed, or
  • if they were aware of the offence occurring, they took reasonable to steps to prevent this person from smoking.

The reasonable steps an owner/occupier must take include the following:

  • Inform the person that they are committing an offence.
  • Request them to stop smoking in this area, extinguish and dispose of the cigarette.
  • If the person fails to comply with this request the owner should request the person to leave the outdoor eating area until they have finished smoking.

More information

Tobacco Control Branch

  • Phone: Phone: 1300 784 892
  • Fax: 9382 0770
  • Email: tcb@health.wa.gov.au
  • Postal address (general):
    PO Box 8172
    Perth Business Centre 6849

For registration information on your tobacco sellers licence, or licences held by others, visit the Public Register of Tobacco Sellers Licences (external site).

Produced by

Tobacco Control Branch