BIRMINGHAM CITY COUNCIL REPORT OF THE DIRECTOR OF PLANNING AND REGENERATION. PLANNING COMMITTEE 29 May Shisha Use and Planning Legislation

Transcription

1 BIRMINGHAM CITY COUNCIL Appendix REPORT OF THE DIRECTOR OF PLANNING AND REGENERATION PLANNING COMMITTEE 29 May 2014 WARDS: Shisha Use and Planning Legislation ALL 1. Subject and Brief Summary of Proposals This paper advises the Planning Committee of a report produced by Environmental Health for the Licencing Committee dated 16 April 2014 which updated Members on the activities carried out by Regulation and Enforcement surrounding shisha premises in Birmingham To request that Members note the work officers are undertaking and endorse and note the contents of the report. 2. RECOMMENDATIONS 2.1 That the content of the report and the ongoing multi-agency work that is being undertaken is noted. 3. CONTACT OFFICERS Richard Goulborn Head of Planning Management Telephone No richard.goulborn@birmingham.gov.uk James Wagstaff Principal Enforcement Officer Telephone No james.wagstaff@birmingham.gov.uk

2 4. BACKGROUND 4.1 Prior to 2007, the term Shisha and the use of premises for Shisha was relatively unknown from a planning perspective. The term Shisha smoking is a way of smoking tobacco, sometimes mixed with fruit or molasses sugar, through a bowl and hose or tube. The City Council over the past few years has seen an increase in both planning enforcement complaints and planning applications submitted for this use. 4.2 If an unauthorised use or structure for shisha purposes is identified and considered expedient to pursue, then appropriate planning enforcement powers can and will be utilised. 4.3 Shisha smoking is a very social activity, whose popularity has increased within Birmingham and the United Kingdom in recent years. 4.4 Planning Enforcement is very important as part of a multi-agency approach as enforcement action can result in an unauthorised and inappropriate shisha lounge being shut down. 5. PRESENT PLANNING POSITION 5.1 The use of premises for shisha smoking is considered to fall within the sui generis class order in planning terms (a use not able to fit within the standard use classes). 5.2 As outlined in the Licensing report, the majority of Shisha businesses trade predominately in the South East of the City and over the past few years the department have seen a significant rise in planning applications for shisha cafes / bars. 5.3 According to planning records, since 2007 we have received approximately 30 planning applications and investigated approximately 25 alleged unauthorised Shisha premises or associated activities. 5.4 As many of these premises open outside normal working hours for the team, there is a potential risk when visiting the premises. However, this is controlled by working with partner agencies to gather as much intelligence as possible about the premises prior to a visit. In appropriate cases, multi agencies visits will be arranged. 5.5 Planning, coordinating and carrying out multi-agency visits is resource intensive. 6. CONCLUSION 6.1 With the general relaxations of planning powers introduced by the government over the past few years, such uses may be best controlled by a local licensing regime, which would remove risks of planning decisions being overturned by government inspectors, and help to retain local control. 6.2 Work is on-going with partners to gather intelligence and develop a plan to address the matter going forward. As part of this, consideration will be given to further outreach, educational work and publicity around the matter. 2

3 7. RECOMMENDATIONS 7.1 That the Panning Enforcement function continues to work closely with other departments and agencies to ensure that relevant legislation is effectively enforced. 7.2 That the Planning Committee note the contents of this and the Environmental Health reports. 8. BACKGROUND PAPERS Shisha update paper to Licencing Committee 16 April

4 BIRMINGHAM CITY COUNCIL REPORT OF THE DIRECTOR OF REGULATION AND ENFORCEMENT TO THE LICENSING AND PUBLIC PROTECTION COMMITTEE 16 APRIL 2014 ALL WARDS SHISHA UPDATE 1. Summary 1.1 This report updates your Committee on the activities carried out by Regulation and Enforcement surrounding shisha premises in Birmingham. A multiagency approach is adopted in Birmingham, which is led by officers of Regulation and Enforcement in ensuring shisha premises are compliant and safe and that consumers are advised on the health risks associated with smoking shisha. 2. Recommendation 2.1 That the Chair, on behalf of the Licensing and Public Protection Committee, writes to the Minister for Health urging the Government to bring in a Licensing regime for shisha premises so that they may be better controlled. 2.2 That the report be referred to the Planning Committee. 2.3 That the report be noted and that minute number 250, insofar as it relates to shisha lounges, be discharged. Contact Officer: Janet Bradley, Operations Manager Environmental Health South Telephone: janet.bradley@birmingham.gov.uk 1

5 3. Background 3.1 Regulation and Enforcement have been at the forefront of tackling issues surrounding shisha since Raising awareness and bringing partner agencies to the table; putting shisha on the planning agenda; designing and delivering a regional training package to regulators and health professionals and a City wide communication package (in conjunction with Public Health) have helped to shape the work undertaken in the region and nationally. 3.2 Shisha smoking is a very social activity, whose popularity has increased within Birmingham and the United Kingdom in recent years. It is enjoyed by mainly young people, predominantly from within the Asian community. The British Heart Foundation in 2011 demonstrated that the UK had seen an increase in 210% in the number of shisha premises since the introduction of the smokefree legislation in Through networks, partners and intelligence gained the Division has helped to shape debate for Government over the inadequacies of the currently available legislation. Partnership working with West Midlands Fire Authority and West Midlands Police has been increased in order to better deal with non-compliant premises. 3.4 Intensive working with the businesses, especially at the planning stage, has paid dividends in ensuring that a number of shisha premises in Birmingham are compliant with the smokefree legislation on inspection. Officers are also experiencing that competition between businesses is helping to raise standards within shisha premises. This business relationship is also providing intelligence for officers on emerging issues within the shisha business community and helping to tackle non-compliant premises. 3.5 There are 21 shisha businesses known to be currently trading in Birmingham located predominantly in the south east of the city in Digbeth, Sparkbrook, Selly Oak, Hall Green, Nechells and Ladywood wards. The Planning Department have seen a large increase in planning applications to build future shisha bars in Birmingham. The Division works closely with the Planning Department, at the planning application stage to ensure applications comply with the legislation Regulation and Enforcement are responsible for. 3.6 The known operating premises in Birmingham range from wooden shed like extensions at rear of cafés/restaurants with a capacity for customers, to large up market premises with capacity for 300+ customers. The number of premises fluctuates as premises open and close regularly. 3.7 Due to a recent spate of fires relating to shisha premises, and an increase in concern from residents the emphasis between agencies has shifted to include safety of the premises, owners, employees and their customers. 3.8 Environmental Health are working with Birmingham University MSc Environmental Health students on two research projects; one on infection control issues associated with the sharing of shisha pipes (early results 2

6 indicate a risk associated with unclean or contaminated shisha pipes) and the second on carbon monoxide, atmospheric particulate levels within shisha premises. 4. The Law 4.1 Shisha premises are businesses and, therefore, have to comply with legislation like any other business. There is no legal requirement for the business to be authorised, be licensed or registered to open and operate as a shisha premises. There is no legal requirement for shisha businesses to inform the Local Authority that they are trading other than to gain planning permission. 4.2 There is no one piece of legislation that specifically relates to the compliance of shisha premises, therefore, a range of multi-agency legislation is required to ensure the safety of the premises. The Smoke Free legislation (the Health Act 2006 and related Regulations) make it an offence to smoke in enclosed or substantially enclosed premises and was drafted and enacted prior to the rise in shisha premises in the UK. Prosecution of the owner is the highest sanction available with a maximum fine of 2,500 per offence. The 50% rule applying to the openness of the premises is often frustrated by the interpretation of this provision especially where the open part of the structure is close to a solid structure such as a wall. 4.3 Working with the shisha business owners to ensure compliance and safety is the usual first course of action taken, however, enforcement will be, and has been used by agencies for persistent offences. 4.4 Environmental Health has had 5 successful prosecutions with the fines ranging from a conditional discharge to the maximum fine of 2,500 (which includes a criminal record). All of the premises prosecuted continued to trade or opened up a new business in a new name. It is felt that owing to the profitability of shisha as a business a prosecution under the smokefree legislation does not act as a deterrent on its own. 4.5 Many of the activities associated with shisha premises are deemed as high risk with regards to smoking; potential carbon monoxide levels and potential infection control issues from sharing pipes; potential for underage sales and concerns around means of escape (due to the numbers of ignition sources available). Often these high risks cause the public and many agencies to believe there are closure powers available to close shisha premises. This is not the case as the Health Act 2006 does not contain powers to close down or prohibit shisha premises. The Fire Authority has powers to prohibit premises under the Regulatory Reform (Fire Safety) Order 2005 around lack of provision for means of escape. These powers have been used on a number of occasions in Birmingham s shisha premises, though once the works required under this legislation have been carried out the premises are allowed to reopen. 3

7 4.6 A number of shisha premises have Late Night Refreshment Licences (under the Licensing Act 2003) for the sale of hot food and hot drinks between the hours of 11pm and 5am, however, these do not impose any requirements or conditions and neither does this change the opening hours of the business from what is stipulated within their planning permission. To date none of the premises have a licence for the sale of alcohol which would impose other conditions on the business and require the Police to be consulted when considering such a licence. 4.7 There have been 32 planning applications for shisha premises since 2009 that Environmental health are aware of. Since 2011 all planning applications relating to shisha premises are referred to Environmental Health to ensure the premises comply, at the planning application stage, with the Health Act 2006 and the Environmental Protection Act 1990 with regard to the impact on the amenity of local residents such as noise from activities associated with the premises. 4.8 Planning only allows planning permission to be given when a shisha premises can demonstrate compliance with the Smokefree legislation. However, of late, Environmental Health officers have found that new developments have not adhered to the original approved planning application plans, particularly in relation to the internal design which is crucial in order to comply with the smokefree legislation. These have been referred to Planning Enforcement. Planning legislation does not allow planning applications to be rejected on the basis of being a risk to with public health. Environmental Health have a close working relationship with Planning and Planning Enforcement on these issues. 4.9 Working with other local authorities, it is considered that the best option for effectively dealing with shish premises to ensure compliance is a licensing scheme. The City Council has written to the Minister for Health on two occasions asking the Government to bring in a Licensing regime to provide better control of shisha premises, as have other local authorities, but to date, this has not been accepted. 5. Complaints and Co-ordinated Action 5.1 In recent months, joint working has continued to prioritise the health issues related to smoking shisha as well as concentrating on fire prevention and police related issues associated with a number of shisha premises. Shisha is now a high priority for both West Midlands Police and Fire Service and Regulation and Enforcement are working closely with both agencies in a prevention capacity. The effectiveness of this work is reliant on the priority that all agencies give to dealing with shisha premises. 5.2 Since October 2013 there have been two major fires in shisha premises, within Birmingham that has increased proactive visits by Regulation and enforcement, West Midlands Police and West Midlands Fire Service. 4

8 5.3 50% of all the known shisha premises have had a joint visit by all 3 agencies since January 2014 and the others are to be visited shortly. Business compliance information and a joint letter from West Midlands Fire Authority and Regulation and Enforcement, devised by Regulation and Enforcement, have been left with the owners to promote good practice and advice on works required to ensure compliance as shown in the attached Appendix. Revisits are planned, with agencies, to ensure work requested has been actioned and enforcement will be taken for persistent non-compliance. Due to the nature and complexity of the issues found, shisha premises ensuring compliance within these premises is resource intensive, partnership working is a more efficient way of achieving this goal and also provides the safety for officers working at night. 5.4 Some complaints have been received from the public regarding noise, waste issues, antisocial behaviour, parking problems and vehicle crime associated with shisha premises, especially within areas of high density of shisha premises. However, very few complaints have been made regarding issues such as underage non-compliance with the smokefree legislation. It is believed that the reason for the small number of complaints is the lack of awareness of the general public towards these premises, the fact that most are situated away from the general public and those that frequent them either are not aware of how or who to complain or do not choose to complain. All complaints received have been investigated. 5.5 A recent complaint alleged that a particular shisha premises in Birmingham was selling to school children in school uniform. This was investigated twice, however, no evidence was obtained that this practice was occurring. The school was contacted and educational material on the harms associated with shisha smoking supplied for the school to pursue. Test purchasing using children has not been explored due to the risk of exposure to the children from tobacco smoke. There appears to be no other Local Authority that has gone down this route. 6. Activities and Outcomes 6.1 Following the fires in shisha premises in October 2013 and December 2013 Regulation and Enforcement are flying the flag by raising awareness of shisha premises and associated issues with West Midlands Fire Safety Officers and response officers, and West Midlands Police (south region) through training sessions and discussions. West Midlands Fire Authority are working closely with Environmental Health to ensure shisha premises are safe. 6.2 It is still apparent that many people who frequent and use shisha are still unaware of the potential harm from undertaking this activity. Parents of the young people also appear unaware also and, therefore, research suggests that this gives the young person the green light to frequent these premises. Research also suggests that as there is little in the public domain regarding the potential harmful effects of smoking shisha that people ascertain the practice is ok. Environmental health has been invited to provide and deliver 5

9 harm reduction messages to young students in colleges surrounding areas of high density of shisha premises. 6.3 Being an active member of Birmingham s tobacco control Alliance Regulation and Enforcement has helped to raise the priority around shisha with all stakeholders of the alliance. 7. Further Initiatives 7.1 Environmental Health is currently a stakeholder with Public Health England in the production of a shisha compliance tool kit due to be released in April This tool kit brings all advice and case studies surrounding shisha compliance within one document. 7.2 In collaboration with Birmingham University and Public Health England, two research projects are being undertaken surrounding infection control and indoor air quality issues. Once these projects are completed by August 2014, consideration will be given to any further action required. However, action will occur earlier should any risk be realised through the projects. 7.3 Environmental Health is working with South and City College Birmingham, Public Health England and Public Health to produce an awareness raising programme for students. 7.4 As well as providing training for West Midlands Police and Fire Services, officers have also provided training on dealing with shisha premises to other local authorities. 8. Consultation 8.1 The Enforcement Policy that underpins the work identified in this report as approved by your Committee. The policy reflects the views of the public and business in terms of the regulation duties of the Council. Any enforcement actions taken in relation to shisha are subject to the Enforcement Policy. 9. Implications for Resources 9.1 The work identified in the report was undertaken within the resources available to your Committee. Public Health is providing 6,000 contribution to the infection control research project to cover sampling costs. 10. Implications for Policy Priorities 10.1 The work identified in the report contributes to the succeed economically strategic outcome, ensuring that all traders conduct their business in a fair and equitable trading environment. 6

10 10.2 The work particularly addresses the Council plan priority To tackle inequality and deprivation, promote social cohesion across all communities in Birmingham and ensure dignity, in particular for our elderly and safeguarding for children. 11. Public Sector Equality Duty 11.1 The actions identified in this report were taken in accordance with the Enforcement Policy of the Licensing and Public Protection Committee which ensures that equality issues have been addressed. DIRECTOR OF REGULATION AND ENFORCEMENT Background Papers: Nil 7

11 APPENDIX Joint letter and business information sent to shisha business owners Dear Shisha owner, Safety is our business and our aim is to make you, your business and your customers safe. You will be aware that since October 2013 there have been two devastating fires relating to shisha premises in this city. Across the country we are becoming increasingly aware of the number of fires relating to shisha. Injuries have been sustained by members of the public as a result of fires and owners, like you, have lost their premises and business. Fires can cost more than buildings and we are sure you share our concern that we do not want any more fires relating to shisha premises in this city. The agencies below are joining together to undertake a series of compliance visits to shisha businesses to provide advice help and guidance in helping you to make your premises compliant and safe. We hope you will work with us to achieve this goal. We will contact you in the coming months to make an appointment for agencies to visit you. In the meantime please see the information attached. Yours sincerely West Midlands Fire Service Telephone: Regulation & Enforcement Telephone:

12 Shisha Legislation Compliance Guide Birmingham 2014 Issue Legislation Information Relevant Agency Contact details Planning permission and Building Control Fire safety Town and Country Planning Act 1990 (as amended). The Regulatory reform (Fire safety) Order 2005 Planning Permission If you construct a shelter for shisha users, it will require planning permission. Please contact the Planning Department for advice prior to construction. Building Control If you are erecting any new structure or changing the existing buildings then you may also be required to make a Building Regulations Application. The owner of the business must make sure that a Fire Risk Assessment is undertaken of the premises. There must be adequate means of escaping from a fire to a safe place that are kept clear and unlocked There must be a means of tackling a fire. For example, you must have fire extinguishers and people trained to use them. There must be an adequate means of raising the alarm in the event of a fire. All furnishings and drapes need to meet the required standards so as not to ignite easily. Failure to comply may lead to an enforcement notice being issued. Planning Department and Building Control Telephone: Building Consultancy tel nsultancy West Midlands Fire Service Telephone: Website: 1

13 Shisha Legislation Compliance Guide Birmingham 2014 Issue Legislation Information Relevant Agency Contact details Food Safety Food Safety Act 1990 Paying tax on tobacco Tobacco Products Duty Act 1979 Tobacco Products Description of Products Order 2003 Tobacco Products Duty Regulations 2001 If the business provides any food or drinks then the business is legally obliged to register with. There is no charge for registering. You will need to consider that you store, prepare and cook your food to ensure the safety of it and consider the hygiene of your premises. Environmental Health can provide you with advice on this. Shisha containing tobacco is liable for excise duty. From 1 January 2014 herbal shisha containing no tobacco will also be subject to excise duty. As a guide if you are currently purchasing Shisha for less than 10 per 100 grams it is likely that this is an illicit product and the duty and VAT hasn t been paid. A criminal conviction for the evasion of duty and VAT could lead to a sentence of up to 7 years imprisonment Illicit products will be liable to seizure You can receive an assessment for the duty due and a penalty of up to 100% of the duty amount. Relevant business taxes and income tax must also be paid. For further advice please contact the HMRC helpline Regulation and Enforcement Environmental Health HM Customs & Revenue Customs & Excise Helpline

14 Shisha Legislation Compliance Guide Birmingham 2014 Issue Legislation Information Relevant Agency Contact details Health warnings and labelling Underage sales Consumer Protection Act 1987 The Tobacco Products (Manufacture, Presentation, and Sale) (Safety) Regulations 2002 and Amendment Regulations 2007 Consumer Protection From unfair Trading Regulations 2008 (CPRS) The Children and Young Persons Act 1933 (as amended) The Children and Young Persons (Protection from Tobacco) Act 1991 (as amended) It is illegal to sell shisha products which do not comply with the requirements of Regulations 7 to 10 of the Tobacco products (manufacture, Presentation and sale) (safety) Regulations 2002 and amendments Regulations 2007.Shisha tobacco products must be labelled as other more traditional tobacco products such as cigarettes and hand rolling tobacco Packaging that the Shisha is supplied in must say: Smoking Kills or Smoking seriously harms you and other around you On the back of the packaging it must also have a picture warning If you are selling loose Shisha e.g. in small packets or in a bowl, you still need to comply. This could be overcome by giving the warnings and printing the pictures on the Shisha menu and displaying them when the customer makes their order. Currently we are unaware of any legitimate suppliers of Shisha tobacco in the UK It is an offence to sell Shisha containing tobacco to anyone under the age of 18. If you think someone is underage you need to ask them for ID. A sign saying it is illegal to sell tobacco products to anyone under the age of 18 must be displayed Selling a Shisha product to an underage person carries a maximum penalty of 2,500 Regulation and Enforcement Trading Standards ndards tradingstandards@birmingha m.gov.uk The Niche Tobacco Directory; Regulation and Enforcement Trading Standards ndards tradingstandards@birmingha m.gov.uk 3

15 Shisha Legislation Compliance Guide Birmingham 2014 Issue Legislation Information Relevant Agency Contact details Tobacco advertising Tobacco Advertising and Promotion (Point of Sale) Regulations 2004 Advertising any tobacco products limited to a single A5 sign at the point of sale. The sign must include the warning Smoking kills or Smoking seriously harms you and others around you. Posters in windows, banners on the side of premises or any other sign which carries a Shisha brand or logo are all prohibited. Regulation and Enforcement Trading Standards ndards The Tobacco Advertising and Promotion (Display)(England ) Regulations 2010 The Tobacco Advertising and Promotion (Display of Prices) (England) Regulations 2010 It is an offence for an advertisement to have the effect of promoting Shisha tobacco products. This can include free offers, student discounts, price reductions or the supply of coupons. Products covered include those with only small proportion of tobacco in them. From April 2012 large shops can no longer display tobacco products, there are restrictions on the way that a price list can be displayed. Small shops will have to comply from April tradingstandards@birmingha m.gov.uk Smoking signs The Smoke free (Signs) regulations 2007 You must display at least one no smoking sign in a visible position in the no smoking part of the premises. Regulation and Enforcement Environmental Health Telephone:

16 Shisha Legislation Compliance Guide Birmingham 2014 Issue Legislation Information Relevant Agency Contact details Shelters Health act 2006 In 2007, the Smokefree Law was introduced which banned smoking in virtually all enclosed public places and work places. If Regulation and Enforcement shisha is smoked on your premises you also have to comply with Environmental Health the Smokefree legislation The Smoke free (Premises and Enforcement) Regulations 2006 Water pipes can only be smoked outside in the open air, or in a smoking shelter/lounge which must be at least 50% permanently open. Doors, windows, shutters and tent/marques side-panels will be classed as parts of the wall if they can be shut or rolled up. If rugs, carpets or sheeting are used to cover up the open parts of the walls so that it is no longer at least 50% open, you will be breaking the Smoke free Law and could be fined. Many businesses try to place the open part of the smoking shelter/lounge close to a wall like structure to minimise the effect of the weather (i.e. the cold, wind and rain). This makes the lounge feel more enclosed and is not within the spirit of the legislation. It is advisable that when determining the distance of the roof of a shelter to a wall structure, the height of the wall structure is taken into account. If this wall structure is higher than the roof level of the shelter you may need to increase this distance. It is advisable that at least a 1.5 metre distance is considered from the guttering of the shelter roof to a wall structure in all cases. 5

17 Shisha Legislation Compliance Guide Birmingham 2014 Issue Legislation Information Relevant Agency Contact details Statutory Nuisance noise, fume, odour, waste Environmental Protection Act 1990 Regulation and Enforcement Environmental Health Statutory Nuisance Noise and smoke fume or odour can constitute a nuisance in legislation. Action must be taken by the Council where statutory nuisance occurs to deal with the cause of the nuisance. Waste removal You need to consider how you remove your waste from your premises. This will include paper, ash and cans. You will need a trade waste contract to remove your waste Environmental Planning Environmental Health considers this when considering planning consultations, and makes comment as necessary. The open nature of these premises unavoidably causes noise and smoke issues. Because tests for planning amenity are tighter than for nuisance, recommendations for refusal of planning applications may also be made where statutory nuisance may not arise. pollution.team@birmingham.gov.uk Licensing Licensing Act 2003 Where licensable activities are taking place, a premises licence is required. These activities include provision of live or recorded music, late night refreshment (if you provide hot food or hot drinks between 11pm and 5am then you will need a late night refreshment licence). Environmental Health, among other Responsible Authorities, must also be served with premises licence applications and temporary event notices where applicable. Regulation and Enforcement Licensing licensing@birmingham.gov.uk Planning often put on opening hours restrictions. You cannot increase your opening hours by having a late night refreshment license. 6

18 Guide to setting up and running a Shisha businesses Birmingham 2014 This guide is aimed at business owners who are considering setting up a shisha business in Birmingham and for those who already own shisha premises to advise of the legal issues surrounding such businesses and provide advice on running a safe and compliant business. Birmingham is a diverse and vibrant city. Agencies of the City want to achieve a safe, healthy, clean, green and fair trading city for residents, businesses and visitors. Being safe and compliant is good business and we hope that our aims are the same as yours for your business. This guide is intended to help you achieve this. The law Shisha businesses are no different from other businesses in that you need to comply with the law. This information will provide you with information to help to achieve this. Failing to comply with the law is costly and may result in prosecution. There are many agencies that can provide you with help to become compliant and this is detailed in the attached table. All agencies work towards a level playing field for all businesses in the city and want businesses to be safe and compliant for your business, customers and staff. Before you open Experience has found that if you consider all aspects of your business before you open then it can help to remove costly mistakes and prevent formal action being taken. Most of the agencies will provide you with free advice before you open in getting your business compliant. Premises must have planning permission, building regulation approval, a valid fire safety assessments, keep noise, light pollution and exposure to second hand smoke to a minimum. A shelter must comply with the 50% smoke free rule under the Health Act 2006 and the Smoke free( Premises and Enforcement) Regulations Planning If you construct a shelter for shisha users, it will require planning permission. Please contact the Planning Department for advice prior to construction. PlanningandRegenerationEnquiries@birmingham.gov.uk Where can customers smoke? If your customers smoke tobacco shisha or herbal shisha or cigarettes you need to comply with the Smoke free Regulations, therefore, unless your business has access to a legal smoking area you will not be able to supply lit shisha in water pipes. More detail is provided below. The Smoke free Regulations apply to all businesses in the UK. Water pipes can be smoked in the open air when there is no roof or ceiling above the smoker. They can also be smoked in some circumstances where there is a roof or ceiling, but only if at least 50% of the walls of the structure are permanently open (even when you are not trading). This is known as the 50% rule. Revised 2014 Page 1

19 Guide to setting up and running a Shisha businesses Birmingham 2014 The weather can cause problems for the open section of the shisha business, especially the wind, rain and cold so you are advised to consider this, especially when you are drawing up plans for a build or renovation as at no time should the 50% open part of the business be closed by tarpaulin, drapes, shutters, fencing, furniture nor plants. You must also consider security of your business with this in mind. 50% rule in detail: As a business owner you have a duty to comply with the Law. The following is an extract from LACoRS Guidance for the implementation of smokefree legislation and gives you advice on the steps you need to take to ensure a smoking shelter complies: If 50 per cent of the walls or more are missing then it is legal to smoke in the area; or If more than 50 per cent of the walls are present then it is illegal to smoke in the area. When determining the area of an opening, no account can be taken of openings in which there are doors, windows or other fittings that can be opened or shut. A roof includes any fixed or movable structures, such as canvas awnings. Tents, marquees or similar constructions will also be classified as enclosed premises if they fall within the definition (note that tent/marquee side-panels will be classed as rolled down even when they are rolled up). In general if an opening or cover can be closed, the 50 per cent rule will be calculated on the basis that those openings are closed. The following also from the above guide gives you information when you do erect a compliant shelter and you will need to consider the following:- Local planning requirements Building control requirements Licensing requirements in terms of outside hours/use of the street. Noise issues, especially at night and adjacent to residential area. Provision of suitable litter receptacles to help keep the streets/outside areas clean The siting of the shelter is also important and it is therefore recommended that:- Many businesses try to place the open part of the smoking shelter/lounge close to a wall like structure to minimise the effect of the weather (i.e. the cold, wind and rain). This makes the lounge feel more enclosed, which may prevent proper air-flow through the shelter and this is not within the spirit of the legislation. This can also effectively render the structure substantially enclosed and raise the prospect of offences being committed when it is used by smokers. It is strongly advisable that you discuss you shelter considerations with the Planning department and Environmental Health prior to committing to your build. Revised 2014 Page 2

20 Guide to setting up and running a Shisha businesses Birmingham 2014 It is advisable that when determining the distance of the roof of a shelter to a wall structure, the height of the wall structure is taken into account. Therefore, with a 3 metre height wall structure, the distance of the roof to this wall will be greater than with a 1 metre height wall structure. It is further advisable that at least a 1.5 metre distance is considered from the guttering of the roof to a wall structure in all cases. A shelter should be sited so as to ensure as far as possible that second hand smoke will not be likely to drift into smoke free area of premises and give rise to complaints. Penalties You need to be aware that the penalties for failing to prevent smoking in a smokefree place is a fine up to 2,500. Failing to display the correct signage can mean a 200 fixed penalty fine. In addition individual customers smoking are liable for a 50 fixed penalty notice. Further information is available on and What can I sell? You can only sell tobacco products that have been legally imported into the UK anything imported illegally will be seized by Trading standards, HMRC or Police Officers. Excise duty is currently a kilo on tobacco products and from 1 January 2014 herbal smoking products will be treated as if they contain tobacco and will be subject to Tobacco Products Duty. It is advisable to keep evidence that you have paid this duty. Please see for more information or contact HM Revenue & Customs helpline on or Who can I sell shisha to? No tobacco product can legally be supplied to anyone under 18 years old. Given that water pipes are normally shared, you must check the ages of the whole group and any friends who subsequently join them. It may be sensible to allow only over 18s into the premises. Any premises selling tobacco products has to display large notices stating it is illegal to supply tobacco products under the age of 18. This should be displayed in areas where customers can receive tobacco. We can supply this notice. The water pipes themselves should be labelled with the same written and picture warnings that are on cigarette packs. We can supply these labels. Revised 2014 Page 3

21 Guide to setting up and running a Shisha businesses Birmingham 2014 Information on other legislation enforced by Trading Standards for underage sales, signage and labelling is available on or tradingstandards@birmingham.gov.uk Waste All businesses require, by law to have a trade waste contract with a licensed waste carrier. The Environment Agency has a list of businesses that are licensed to take your waste. You need to keep records (receipts) for 2 years of how you remove your trade waste from your business. A licensed carrier should provide you with such receipts. How can I ensure the safety of employees and customers? West Midlands Fire Service Fire Safety Safety is our business and our aim is to make you, your business and your customers safe. There have been a number of fires relating to shisha premises around the country, including Birmingham. A number of people have already been injured. You could face legal action should your premises catch fire. The following gives you advice on the conditions you must have to comply with the law. You must: Have a fire risk assessment and it must be written if they employ more than five or have a license in force. Have adequate means of escape that must be available when the building is in use. Have means of tackling a fire i.e. fire extinguishers and have persons that are trained to use them. Have an adequate means of raising the alarm in the event of fire, and that it either cuts out amplifiers or can be heard over the loud music. Provide emergency lighting and signage if required. In addition Revised 2014 Page 4

22 Guide to setting up and running a Shisha businesses Birmingham 2014 Furnishings and drapes need to meet the required regulations so as not to ignite very easy. They should be flame retardant material or treated. Any LPG cylinders should be stored upright where they can not fall over and all connections and pipes should be tested to ensure no leaks. Radiant heaters and the like must not be placed too close to drapes, furnishing and where people can come into contact. Consider the use of tunnels to pipe the hot air into the public areas. Travel distances may have to be shorter than the normal 18 meters particularly if the smoking structure is a marquee or tent: 6.5 meters one way or 18 meters two ways. West midlands Fire Services can provide advice - For further information see Police Many Shisha Lounges now operate similar to other businesses in the night time economy such as nightclubs. It is strongly advisable that you consider how you run your business to take into account security and activities outside and within your business; car parking associated with your business and how this may affect local residents and other businesses, and noise created late at night when customers leave your business. Hygiene, Health and Safety Supplying shisha will involve additional risks which you should assess and control. Risk assessments must only be documented where you employ five or more staff. Risks include infectious disease associated with not cleaning pipes after use and customers not using individual tips when passing round the pipe. There are also risks associated with burning coals, spillages, Carbon monoxide and injury from portable heaters that you must take into consideration. Your local Environmental Health Officer can advise you on such matters. Revised 2014 Page 5

23 Guide to setting up and running a Shisha businesses Birmingham 2014 Where can I get further information? The agencies would much rather achieve compliance through advice than by taking enforcement action. Many agencies will give free onsite advice: Planning Department and Building Control Tel: PlanningandRegenerationEnquiries@birmingham.gov.uk Building Consultancy Tel West Midlands Fire Service Tel: Regulation and Enforcement Environmental Health Tel: HM Customs & Revenue Customs & Excise Helpline Tel: Regulation and Enforcement Trading Standards Regulation and Enforcement Licensing licensing@birmingham.gov.uk West Midlands Police Revised 2014 Page 6