Clear The Air News Tobacco Blog Rotating Header Image

Bars Win In Smoking-Ban Case

Peter Brieger – Oct 09, 2008

The director of health used a flawed process to decide which places of entertainment should be excluded from a wide-ranging smoking ban, the Court of First Instance ruled yesterday.

The decision was a win for three bars, which fought the prohibition, and threw into question how the health watchdog might fight other legal challenges to the ban, introduced two years ago but with exemptions for some premises until June 30 next year.

In his ruling, Mr Justice Anselmo Reyes said health inspectors must do more than just look at, for example, lunchtime sales to determine whether or not to allow smoking at an establishment.

The Bull and Bear pub in Wan Chai, Sticky Fingers in Tsim Sha Tsui and Biztro in Central had argued that alcohol accounted for the vast majority of their sales even though customers could order full meals.

The judicial review centred on whether the three – booted off a list of bars exempted from the smoking ban – sold mainly food or alcohol.

Smoking is not allowed at restaurants that rely on food sales for most of their revenue.

Health Department inspectors concluded that the three bars should be removed from the list on the basis of checks on their lunchtime trade.

Mr Justice Reyes wrote: “As a matter of logic, that an establishment serves certain foods at certain hours will not necessarily mean that it is `primarily’ engaged in the supply of meals. One has to look at what the establishment does as a whole.”

The judge sent the case back to the appeal board – which had upheld the Health Department’s ruling – for “reconsideration”.

“We will study the judgment of the court in detail in consultation with the Department of Justice before we decide on the way ahead,” a Health Department spokeswoman said.

The ratio of food to liquor sales might help determine what sort of business an establishment ran, but it was not the only factor to consider, Mr Justice Reyes wrote.

He also criticised the appeal board for having made “inconsistent decisions” in the past and noted that board members relied too much on what kind of food places served.

“This vindicates what our position has been throughout the process,” said Chris Dundon, a solicitor who represented Biztro and the Bull and Bear. “The approach of the Director [of Health] was misconceived all the way along.”

Yesterday’s ruling could open the door for other establishments to challenge their removal from the department’s list of exempted establishments, Mr Dundon said.

“As far as I’m aware, [health authorities] haven’t changed their approach,” he said. “Now that there’s actually been a judge pronouncing on this, it shows the route map by which bars can look at their operations and decide if they fit within the ordinance.”

The decision also helped create a “level playing field” for establishments that suffered under the dual system, said Ian Thomson, chief executive of the Bull and Bear’s parent company.

It had suffered an appreciable drop in sales when it had to ban smoking for a month until it won the right to fight the decision in court, he said.

“We’re pleased because it means we’re back to business as usual and on a level playing field with other bars,” he said.

Comments are closed.