Smoking Ban – Constitutional Court Undoes Ban

Rarely has a law heated the minds of citizens as much as the smoking ban. No wonder, finally, the parliaments of the states decided non-smokers protection laws significant impact on the lives of citizens - the beer in the bar just around the corner, the coffee klatch in the café, or while visiting in hospital. On July 30, 2008, the Federal Constitutional Court came to a decision on non-smokers protection laws and made it clear that the states of laws that protect non-smokers from the dangers of passive smoking need adoption. The exemptions of the non-smoking laws violate the Federal Constitution (re: 1 BvR 3262/07, 1 BvR 402/08, 1 BvR 906/08).

Protection of Non-Smokers

In particular, to protect non-smokers, state parliaments passed laws for a comprehensive ban on smoking. Since 1 July 2008, a nationwide smoking ban is in effect. It applies to all public buildings and enclosed spaces, not only for public institutions (schools, hospitals, government agencies, theaters, etc.) but also for restaurants. Violations of the smoking ban will be punished with a fine – in Saxony even up to € 5,000. Building managers are legally obliged to respond to violations. You must clearly point out in buildings, that a smoking ban exists. In case of violation, smokers should be requested to refrain from smoking. When stubbornly refusing, the smoker is to be sent off the building and the police can be called.

Restaurants and Other Rooms

The non-smoker protection laws of the federal states introduce the ban on smoking in restaurants, which, as a business, offer beverages and food to be eaten on the spot, i.e. restaurants, pubs, cafés, bars, nightclubs, shisha bars, and snack stalls. In all these cases, smoking is generally prohibited. Exceptions are made only for large catering establishments, which can offer closed adjoining smokers’ rooms. In some states, further exemptions for relieves exist for outdoor catering, tents, etc.

Exactly these exemptions now overthrew the non-smoking protection laws in the states of Baden-Wuerttemberg and Berlin. The decision of the Federal Constitutional Court based the actions of two restaurateurs running bars with only one room. They have no way of setting up separate rooms for smoking and had to suffer significant losses because of the smoke ban. The highest German court had a balance between two fundamental legal rights: “the protection of non-smokers” and the “fundamental right to free exercising a profession” of the innkeepers (Art. 12 GG).

The judges assessed the current non-smoker protection laws as unconstitutional. The exemptions taken violate the constitution, because they the concerns of small bar owners have been not sufficiently taken into consideration. Thus, the operators of small bars are unreasonably economically affected by the smoking ban, compared to such establishments where a smoking area is possible. The Constitutional Court declared the smoking ban on such small one-room bars with less than 75 m² as ineffective, when only persons over the age of 18 have access, no food is prepared and operate as a clearly marked smoking bar.

A nightclub's owner had also raised a constitutional complaint. The judges also saw his fundamental rights as violated. According to the existing exemptions for larger caterers, smoking must also be allowed in nightclubs and discotheques if they are smoking in locked rooms.

Note:

Smoking areas must be completely separated from the non-smoking area. In a recent decision, the court in Koblenz confirmed that it is not enough if the smoking room only separated by a curtain (re: 5 L 412/08.KO.).

Margin Parliaments of the States

Until 31 December 2009, the parliaments of the federal states have time to come up with a constitutional regulation of non-smokers protection laws. The judges in Federal Constitutional Court of Justice gave the states plenty of free rope how to handle the non-smoking laws to meet the constitutional needs. They stressed that even a strict general ban on smoking in restaurants without exception as constitutional. The protection of health against the dangers of passive smoking is such an important asset that the constitutional rights of restaurant owners to freely exercise their business must stand back.

This will give state law makers the following options: They can create a comprehensive non-smoker protection law, without any exceptions for all restaurants. The second possibility is an addition to the existing exemptions so that discotheques clubs, and one-room bars have appropriate exemptions from the smoking ban. Specifically, e.g. smoking in clubs and in small pubs with only one tap room must be permitted. Finally, state legislators may even the lifting the smoking ban in restaurants totally.

In its judgment, the Federal Constitutional Court strengthened the protection non-smokers and unequal treatment of smaller gastronomy and nightclubs. The question has been left open whether a smoking ban on smokers infringes the constitutional right of the general freedom of action and also intervenes an admissibility of so-called smoking clubs. After a ruling by the OLG Oldenburg, the registration of a "non-smokers protection workaround association" has been confirmed (re: 12 W 39/08), in other words such association is legal. it is up to a final decision from Karlsruhe on the admissibility of such smoking clubs, which will still take some time.

 

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