February 12th, 2008:

The following letter was sent by James Middleton of Clear The Air to Tobacco Control on the 12th of Feb 2008.

Dear Tobacco Control,

The Department of Health grants smoking deferral exemptions to any liquor licensed premises that states on its application form for deferral that its main income is derived from the sale of intoxicating liquor and not from its food sales. The Department Of Health does not even request a certified set of accounts to prove this point.

It seems pointless for restaurants to apply for a General Restaurant (full) license and abide by the rigid size requirements for the kitchen etc when their main sales are supposedly from liquor and they could pack more people in to sell drinks rather than having tables for food. It is obvious that many restaurants would apparently earn possibly more from its food sales than drinks. Tobacco Control should not rely on these declarations and should by inspection , ascertain what the main usage of the premises is : ie they are a genuine sit down restaurant or they are a bar with occasional full meals.

As we see it, any premises that has a General Restaurant license rather than a Light Refreshment license is involved in the sale mainly of meals, rather than being a bar, then can be exempted . Furthermore any premises that has its exemption overturned should be prosecuted under the Crimes Ordinance for making a false declaration in order to obtain the initial exemption (ie that their premises conformed to all requirements listed in the application procedure) and such prosecutions will probably see a flood of sham bars that are actually restaurants rescinding their exemptions.

Kind regards

James Middleton

CleartheAir

Nishika Patel – The Standard – Tuesday, February 12, 2008

A swank Central bar-eatery that caters to the financial community is seeking the first judicial review to challenge no-smoking rules. Biztro, located in IFC, is fighting to quash an Appeal Board ruling that had upheld a decision by the director of health to enforce a smoking ban at the premises.

The director of health struck Biztro off a list of venues that are for now exempt from the smoking ban after two lunch-time visits to the premises last year determined it was more an eatery than a bar.

A review is being sought on the grounds that the court decision made in November last year was “irrational” as it was based on two visits in March and May for a total of 35 minutes.

“Only 35 minutes of lunch-time observations could not possibly have been a reasonable manner in which to determine the activities in the establishment of the applicants,” said lawyer Adrian Halkes in a written application for a judicial review.

Biztro maintains it is primarily a bar and that it derives most turnover from the sale of drinks rather than food – and most patrons smoke.

Halkes said the applicants, Arthur Lok Kok- cheong and Mark East Enterprise, had suffered a “denial of substantial justice” as the business had seen a drastic drop in sales in November and December last year following the decision.

The smoking ban was implemented last year, but bars, mahjong parlors, saunas and siuje nightclubs are exempt until July 1, 2009, to give them time to adapt.