Shisha cafés and lounges
Whether providing facilities for smoking as a main part of your business (such as a shisha café), or providing facilities for smoking that’s incidental to the business (such as a pub’s smoking shelter), you must comply with the legal requirements under the Health Act 2006 and the Smoke-free (Premises and Enforcement) Regulations 2006.
What the law says
Section 1(2) of the Health Act 2006 (smoke free law) applies to the smoking of tobacco or anything which contains tobacco. This includes being in possession of lit tobacco or anything lit which contains tobacco. Also, being in possession of any other lit substance in a form in which it can be smoked. That includes smoking shisha. Smoking is described as being in possession of a lit article.
The Act prohibits smoking in an area which has a roof or ceiling and is enclosed or substantially enclosed, and which is:
- used as a place of work by more than one person (not necessarily at the same time and including volunteers)
- used as a place of work for one or more persons and where members of the public might attend to seek goods or services (In both the above circumstances the premises would be smoke-free all the time)
- a place not being as described above, but which is open to the public. (In this circumstance the premises would be smoke-free only when the public were present)
Where smoking is a main activity, the objective is often to provide a comfy, warm place where people can stay for extended periods of time. This contrasts with the regulations which require enclosed or substantially enclosed premises to be smoke-free.
Businesses importing and/or supplying tobacco products, including Shisha, also face other legislative requirements.
Before entering into binding contracts to rent or purchase premises or spending money modifying a premise check that for compliance with all relevant legislation.
The following areas must be considered when setting up a shisha café:
- Building control
- Fire safety
- Licensing Act 2003 – providing regulated entertainment and late-night refreshment
- Food safety – providing food or drink
- Health and Safety
- Trading Standards – under age sales and marketing of tobacco including required signage
- Revenue and Customs – duty liable on tobacco products etc.
Compliance with any of the above considerations does not automatically earn compliance with another. For example, having planning permission does not mean that the structure is compliant with smoke-free law.
Premises will be considered to be 'enclosed' if they have a ceiling or roof, and except for doors, windows or passage ways are wholly enclosed, whether on a permanent or temporary basis.
The term roof includes any fixed or movable structure or device which is capable of covering all or part of the premises as a roof, including, for example, a canvas awning.
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.
'Substantially enclosed' is when a premise has a ceiling or a roof but have an opening in the walls which is less than the total area of the walls. This opening does not include windows, doors and any other fittings that can be opened or shut for example shutters or tarpaulin.
This means that at least 50% of its sides must be permanently open. If the smoking shelter is located too close to a wall or another obstruction, then the shelter could be classed as substantially enclosed. This also applies to temporary structures such as ‘jumbrellas’ or an awning that covers most of a courtyard which could become substantially enclosed.
Please note that walls, other structures and items close to the shelter may be counted when
determining the degree of enclosure.
Walls and other structures that are more than 1.5 metres away from the perimeter of the smoking shelter will not be considered by us as part of that shelter*, while those that are 1.5 metres or nearer to the perimeter of the smoking shelter will be considered part of it.
In the case of a nearby wall, where the roof edge is the same height or higher than the adjacent wall, then the distance between the wall and roof edge measured horizontally will be used to calculate the openness of that wall. Where the edge of the roof is higher than the top of the wall the direct distance between them will be used. This calculation gives credit for increases in either or both the height of the roof above the top of the wall or the distance the structure is placed from the wall.
In the cases shown in the drawing below the area credited as being open is achieved by multiplying distance 'a' and the relevant distance 'b'. However where the wall is more than 1.5 metres away from the shelter, the wall won't be counted as part of the structure and no calculation is needed.
* The legislation gives rise to the need for local authorities to interpret how far away another structure or wall is from the smoking shelter before they do not class it as being part of it.
The calculation to establish if an area is open enough to allow smoking is as follows:
- measure the whole of the perimeter, excluding the roof and floor (that is, work out the total area of the four walls).
- measure the total area of all enclosed parts of the four walls (again, exclude the roof and floor)
To determine whether smoking will be permitted within this structure the percentage of enclosed (E) over total (T) perimeter areas must be calculated as shown below:
--- X 100 = % Enclosed
If the percentage calculated is more than 50% then smoking will not be permitted.
For the purposes of all of the above calculations, any openings (such as doors and windows) are considered to be enclosed areas.
To help you a few worked examples are given in the downloadable document below:
Examples of smoking shelter calculations (PDF, 275KB)
If the council say your smoking shelter is substantially enclosed but you disagree
If the council believes that your smoking shelter is substantially enclosed and should be smoke free, they may prosecute you or people who smoke inside. The case would normally be heard in the Magistrates’ Court. It is the opinion of the court that will decide whether the shelter is substantially enclosed or not.
Due to the wide range of legislation involved, visits to premises where shisha is being smoked often include other enforcing agencies such as police, fire, customs and Trading Standards etc.
Enforcement and Regulatory Services officers have power to enter premises at reasonable times and may obtain warrants to enter by force if necessary. People who prevent officers carrying out their duties may commit an offence of obstruction.
Here are the maximum penalties you may be fined by a court:
- smoking in a smoke free premises - £200 (may be offered a fixed penalty notice with £50 to pay or £30 if paid early)
- failing to prevent smoking in smoke free premises - £2,500
- not displaying ‘No Smoking’ signs - £1,000 (may be offered a fixed penalty fine notice with £200 to pay or £150 if paid early)
- obstructing an officer - £1,000
In the event that offences are repeated by an individual or company, the council may apply for a High Court Injunction to stop the illegal activity.
This information has no legal force and is not an authoritative interpretation of the law, which is a matter for the Courts. It is intended to help businesses to understand in general terms, the main features of the legislation. The information is not a substitute for the legislation and you should refer to the text of the legislation for a full statement of legal requirements and obligations. Where appropriate, you should seek your own independent legal advice.