Thursday, 28 August 2008
Doncaster Council has a statutory duty to enforce the smokefree provisions of the Health Act 2006. In general terms, smoking is prohibited in all enclosed and substantially enclosed premises to which the public have access. Work premises and vehicles used by more than one person are also included. The premises and vehicles to which these requirements apply are defined by the regulations made under the Health Act 2006.
Section 5 of this policy has been agreed with Sheffield and Rotherham local authorities. The aim of this joint protocol is to assist individuals and organisations understand their responsibilities under this legislation and to ensure that the neighbouring local authorities take a consistent approach to enforcement of the smokefree legislation across the region.
This document sets out the policy of Doncaster Council for enforcement of this legislation and takes into account the Local Authorities Coordinators of Regulatory Services (LACoRS) Implementation of smokefree legislation in England guidance for local council regulatory officers. In discharging its duty in respect of the smokefree legislation Doncaster Council will follow the Environmental Health Enforcement Policy which is based on the Enforcement Concordat’s principles of standards, openness, helpfulness, proportionality and consistency.
The objective of the smokefree legislation is to prevent smoking occurring where people's health could be affected from the exposure to second hand smoke.
Our objective is to implement the smokefree legislation in an equitable and consistent manner. We will apply the law proportionally, to ensure a fair and safe trading environment for members of the public, employees and businesses.
We aim to help businesses and those who smoke to comply with the legislation by raising awareness and understanding of the legal requirements. We will actively work with local businesses to advise on, and assist with, compliance with the law.
The smokefree legislation introduces three offences that carry a range of penalties, consisting of fines and fixed penalty notices (FPN). The offences are:
Smoking in a smokefree premises or vehicle: the fixed penalty is £50 imposed on the person smoking; this is discounted to £30 if paid within 15 days. The maximum fine on conviction for an offence is level 1 on the standard scale (currently £200).
Failure to display no-smoking signs: where the fixed penalty procedure is used, the fixed penalty is £200 imposed on whoever manages or occupies the smokefree premises or vehicle; this is discounted to £150 if paid within 15 days. The maximum fine on conviction for an offence is level 3 on the standard scale (currently £1000).
Failing to prevent smoking in a smokefree place: the maximum fine on conviction is level 4 on the standard scale (currently £2500 imposed on whoever manages or controls the smokefree premises or vehicle if prosecuted and convicted by a court.
Obstruction of officers and failure to give an officer of an enforcement authority any facilities, assistance or information reasonably required, including making false statements or someone who gives misleading information. The maximum fine on conviction for an offence is level 3 on the standard scale (currently £1000).
Penalties may be subject to change by the government.
Staff in Safer, Stronger and Sustainable Communities will be responsible for enforcing the new laws in Doncaster Metropolitan Borough Council. Authorised officers will be responsible for ensuring that controls on smoking in public places are introduced effectively and maintained consistently.
Only officers authorised in writing can issue fixed penalty notices.
Where more than one enforcement authority is investigating the same person for an offence, the enforcement functions may be transferred from one or more of those enforcement authorities under arrangements made between the transferring and receiving authorities.
South Yorkshire Police works in partnership with the Council and will assist officers achieve compliance.
Where non-compliance is due to misunderstanding or a lack of diligence, then further information, advice and guidance will be provided. However, where it is evident that reasonable efforts are not being made to comply, or the attitude is un-cooperative or antagonistic, then a decision to take formal enforcement action will be considered.
Before deciding whether to prosecute, we will consider a number of factors in line with our generic Enforcement Policy, the Code for Crown Prosecutors and any other national guidance concerning the taking of relevant enforcement action.
We recognise that there may be some unintentional breaches of the legislation and our approach to achieving compliance will be as follows:
Failure to display no-smoking signage
The person who occupies or is concerned with the management of smokefree premises/vehicles will be approached where signage does not comply with the statutory guidance.
Advice on the signage requirements will be given and a timescale to take corrective action will be verbally agreed and subsequently confirmed in writing.
Where appropriate signage has not been installed in the agreed timescale (or extended timescale as agreed with the local authority), a verbal and written warning will be issued and we will specify a date for compliance.
If we establish that appropriate signage is still not installed by the specified compliance date, we will consider serving a FPN.
We will consider taking legal proceedings where appropriate signage is still not in place following the service of a FPN, or where a previously issued FPN has not been paid.
Figure 1 in the downloadable pdf below shows a flowchart of the above.
Failure to prevent smoking in a smokefree premises or vehicle
Where smoking is witnessed by an officer or is alleged to have occurred in a smokefree premises/vehicle, we will approach the person who has control or is concerned with the management of that premises/vehicle.
We will offer them advice and a timescale to take corrective action. We may also issue them with a verbal warning and will follow any verbal warning up in writing.
Where this advice is not acted upon and we establish that smoking is taking place in a premises/vehicle, we may issue a final written warning.
We will consider taking legal proceedings against the manager or person in control of a premises/vehicle if they continue to allow smoking after receiving a final written warning.
Figure 2 in the downloadable pdf below shows a flow chart of the above.
Smoking in a smokefree premises or vehicle
Our aim is to achieve compliance with the legislation by ensuring that the person having management control of a premises/vehicle prevents smoking where they are legally required to do so.
Where reasonable steps have been taken to prevent smoking by the management or person having control, we will approach individuals, who are smoking, and provide advice on the smokefree status of the premises/vehicles and give them a verbal warning.
Where this verbal warning is ignored and an individual continues to smoke, we will consider serving a FPN.
We will consider taking legal proceedings where we become aware of an individual who has previously received a FPN and continues to flout the law. We will also consider prosecuting those who fail to pay a FPN.
Figure 3 in the downloadable pdf below shows a flow chart of the above.
There is no obligation for an authority to offer an appeals process to someone that may want to dispute a Fixed Penalty Notice (eg: the FPN was served on the wrong person).
In Doncaster a non-statutory appeals process has been established.
An individual can appeal against a FPN directly to the council. The appeal should be in writing to the Regulation & Enforcement Manager and it must set out the grounds as to why they feel they should not have been issued with a FPN.
The appeal will be considered by the Regulation & Enforcement Manager, or another person appointed by the Regulation & Enforcement Manager. The authority will write to the appellant and explain the outcome.
In the event of an unsuccessful appeal any letter should explain as fully as possible why this is the case. The letter should state the action that will follow should the fixed penalty notice go unpaid. If a notice is withdrawn any monies paid will be repaid.
Anyone who wishes to lodge an appeal should not be disadvantaged and Doncaster Council will still offer a discount for early payment. If an appellant is unsuccessful, providing the appeal was lodged before the close of the early payment window the person will be permitted to pay the discounted amount within 15 days of being served with the appeal decision letter.
Where the recipient of a FPN wishes to challenge the offence for which they have received a notice, they can make a request for a court hearing. This request must be made in writing to the Doncaster Council within 29 days of the FPN being issued. The details will be on the FPN.
This policy will be subject to an annual review with additional reviews as and when required.
If you have any comments or queries about this policy please contact the Regulation & Enforcement Manager by calling (01302) 737565, or by writing to Regulation & Enforcement, PO Box 257, The Council House, College Road, Doncaster, DN1 1RN or email to health&safety@doncaster.gov.uk
