Although the implementation and levels of compliance with the smoke free legislation have been exceptionally good, various minor issues are now coming to light that require further clarification and guidance. One such example is the issue of designated smoking bedrooms within hotels. Whilst it is accepted that there is no safe level of ventilation for environmental tobacco smoke, the legislation does allow smoking within designated bedrooms if the rooms are suitably ventilated. This does appear to be contradictory and further confusion exists due to the lack of any clear definition in the legislation or supporting guidance of what will be regarded as suitable ventilation.
Due to the lack of any clarity on what will be acceptable as a designated smoking bedroom there was a demand both from local authorities and the hospitality industry for some form of definitive guidance. In response to this the Royal Environmental Health Institute of Scotland (REHIS) commissioned a small working group of Environmental Health Officers to devise a protocol which would provide guidance on this issue for both the relevant industry sectors and enforcement officers. A draft protocol was produced and circulated amongst all Scottish local authorities and a number of partner agencies including:
- Chartered Institute of Environmental Health;
- British Hospitality Association; and
- Visit Scotland.
The enclosed final protocol reflects the comments received from this consultation and will now provide clarity and consistency to both enforcement staff and the relevant business sectors.
A joint protocol for 'designated hotel bedrooms'
This protocol has been developed jointly by the Royal Environmental Health Institute of Scotland (REHIS), Scottish local authorities, the Scottish Government and key industry partners to provide general guidance on implementation of smoke free laws in relation to 'designated hotel bedrooms'. Whilst this protocol is for guidance only, compliance with the terms of the protocol will assist proprietors to demonstrate that they have exercised due diligence and taken all practicable means to secure compliance with the relevant legislative requirements.
The Smoking, Health and Social Care (Scotland) Act 2005 prohibits smoking in enclosed public places, with a number exemptions. One such exemption allows the person who has management or control of the premises (from now on referred to as the proprietor) to designate a bedroom or bedrooms for smoking. To designate a bedroom within a hotel is the choice of the proprietor although there is no requirement to have any designated rooms for smokers.
Although the legislation does refer to ventilation of designated rooms, it should be noted that there is no safe ventilation limit for environmental tobacco smoke. Ventilation systems may improve comfort by reducing the smell and visibility of the smoke, but they do not remove all toxic carcinogens from the air.
The Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006 defines a 'designated hotel bedroom' as a room in a hotel which:-
- is set apart exclusively for the sleeping accommodation of travellers;
- has been designated by the person having the management or the control of the hotel as being a room in which smoking is permitted;
- has a ceiling and except for doors and windows, is completely enclosed on all sides by solid floor to ceiling walls;
- has a ventilation system that does not ventilate into any other part of the hotel (except any other designated hotel bedrooms); and
- is clearly marked as a bedroom where smoking is permitted.
The legislation defines the meaning of "hotel" as:
"..a hotel, boarding house, guest house, inn or hostel containing at least two rooms or apartments set apart exclusively for the sleeping accommodation of travellers."
The Scottish Government has posted supplementary guidance on www.clearingtheairscotland.com which states that:
"If hotel bedrooms have mechanical ventilation, this should be used. However, an openable window, which allows good natural ventilation, will suffice, assuming that within a hotel bedroom, there would only be one or two people smoking. Hotel bedrooms which do not allow good natural ventilation due to other health and safety issues (e.g. windows which are not fully openable), should not be designated as bedrooms in which smoking can take place".
Designation of hotel bedrooms
It is acknowledged that each premises poses site specific issues due to layout, design and location.
It is the responsibility of the proprietor to determine whether, or not, to designate a bedroom. Any bedrooms so designated should be recorded by room number in the smoking policy for the premises.
Although it is accepted that the proportion of designated bedrooms within each individual premises will be influenced by the nature and type of the hotel's clientele, the number of designated rooms should be retained at the lowest number practical and should not be increased or decreased simply for expediency.
In assessing the suitability of any bedroom to be a smoking 'designated hotel bedroom', the proprietor must give prime consideration to the degree of risk posed by any fully openable window to any person, which may result in a fall from height either directly from the window or, alternatively caused by persons using the window to exit the building onto a roof, ledge or other part of the structure.
Standard advice to protect against falls from height is that windows should be restricted for the purposes of opening to a maximum of 100mm. Such an opening will not be regarded as adequate ventilation, and accordingly such bedrooms will not be suitable as designated smoking bedrooms unless mechanical ventilation is provided. Such mechanical ventilation must not ventilate into any other no smoking part of the hotel. It should also be noted that openable windows at ground floor level may not be suitable for ventilation purposes if the window obstructs an external traffic route.
For those staff engaged in the cleaning or maintenance of designated hotel bedrooms the employer will still have a general duty of care under the Health and Safety at Work Act. Where employees are to be exposed to secondhand smoke, then the employer must consider what needs to be done to minimise the exposure of the employee to protect that employee from the effects of secondhand smoke.
Ventilation of designated bedrooms
Although there is no safe ventilation limit for environmental tobacco smoke, the exemption for designated hotel bedrooms does refer to ventilation. The guidance below provides a minimum standard for such rooms and is based upon those levels recommended by the Chartered Institution of Building Services Engineers (CIBSE).
When occupied, designated bedrooms supplied with mechanical ventilation should be provided with an outdoor air supply rate of 24 litres per second per person. If a designated room is to be ventilated with natural ventilation, then this should be achieved through openable windows with an area 1/30th of the floor area of the room it serves.
For those rooms en-suite to the hotel bedroom in which smoking is to be permitted, then such areas must also comply with the ventilation requirements contained in 5.2 above.
Further detailed advice and guidance on the ventilation requirements for designated bedrooms can be obtained by contacting the Scottish Building Standards Agency or by referring to the CIBSE Guide B : 2001, Section B2 - Ventilation and Air Conditioning.
It is essential that all reasonable steps are taken to prevent smoke from permeating into enclosed public areas of the hotel. This will depend on good management practice and implementation by staff and patrons. For example:-
- the doors to designated bedrooms should not be propped open for any purpose by service staff or guests and should be provided with self closing devices; and
- designated bedrooms should, where practical, be grouped in an area of the hotel e.g. at the end of a corridor away from public areas.
Scottish local authorities abide by the 'Enforcement Concordat', which requires openness, fairness, transparency and proportionality in their approach. In addition, local authority authorised officers always provide advice and guidance to assist with compliance. Legal action is only taken when there is a blatant or continued breach of legislation.
Should a complaint be received by a local authority concerning smoking in hotel bedrooms, the authorised officer will in the first instance make contact with the proprietor to discuss the complaint.
Following conclusion of this investigation, any measures required to be taken in terms of the legislation and this joint protocol will be provided to the proprietor in writing. This shall establish reasonable timescales within which these measures should be implemented.
Where there is evidence of continual non-compliance or a blatant breach of the legislation, then the authorised officer may consider a formal course of action. Such action may include:
- The service of a Fixed Penalty Notice on a proprietor.
- The service of a Fixed Penalty Notices on any other person committing an offence in an enclosed public part of the hotel.
- In certain circumstances a report may be made directly to the Procurator Fiscal.