- Transitional provisions in Part 2 of Schedule 6 of the Smoking (Public Health) Ordinance (Cap. 371) permit listed qualified establishments to defer the implementation of smoking ban until 1 July 2009. Qualified establishments are required to apply to the Director of Health to be included in the list of qualified establishments in order to defer the smoking ban. The transitional provisions will be withdrawn on 1 July 2009. In other words, the complete smoking ban will apply to all establishments with effect from 1 July 2009.
- Part 2 of Schedule 6 of the Smoking (Public Health) Ordinance (Cap. 371) requires that listed establishments permitted to defer smoking ban, shall comply with the following conditions:
a. The establishment complies with all the entry restrictions;
b. The establishment complies with the requirements of a qualified establishment;
c. The establishment displays a prescribed sign related to the deferment of smoking ban in legible condition; and
d. The establishment has submitted an application to the Director of Health to include the name and address of the establishment in the list of qualified establishments maintained by the Director of Health.
Person in Charge
- According to Schedule 6 of Smoking (Public Health) Ordinance (Cap. 371), a “person in charge” of any premises
a. in relation to a qualified bar that complies with Section 4(1)(c)(i), means the licensee of the liquor licence that is in force in respect of the bar;
b. in relation to a qualified bar that complies with Section 4(2)(b), means the person who has made an application described in that section;
c. in relation to a qualified club, means the person in whose name the certificate of compliance for the club-house is issued;
d. in relation to a qualified night club, means the licensee of the liquor licence that is in force in respect of the night club;
e. in relation to a bathhouse, means the person to whom a licence in respect of the bath house is granted under the Commercial Bathhouses Regulation (Cap. 132 sub. leg. I);
f. in relation to a massage establishment, means the person to whom a licence to operate the establishment is issued under the Massage Establishments Ordinance (Cap. 266); and
g. in relation to mahjong-tin kau premises, means the person to whom a licence is issued in respect of the premises under Section 22(1)(b) of the Gambling Ordinance (Cap. 148).
- “Licensee” means a licensee within the meaning of Regulation 2(1) of the Dutiable Commodities (Liquor) Regulations (Cap. 109 sub. leg. B).
Listed Establishments and Entry Requirements
- Schedule 6 of the Smoking (Public Health) Ordinance (Cap. 371) requires that an indoor area of a listed establishment may defer smoking ban until 1 July 2009. The relevant establishments are classified into 2 categories:
a. a designated mahjong room in a listed establishment that is a qualified club;
b. other listed establishments which include qualified bar, qualified nightclub, bathhouse, massage establishment, and mahjong-tin kau premises.
- The person in charge of an establishment permitted to defer smoking ban shall ensure the establishment concerned comply with the following entry restrictions:
a. No person under the age of 18 years is permitted to enter the establishment;
b. No person can enter the establishment except through an exclusive entrance;
c. A sign in English and Chinese is displayed in a prominent position at each exclusive entrance of the establishment indicating that no person under the age of 18 years is permitted to enter the establishment;
d. Such signs are maintained in legible condition and good order.
Definition of Qualified Bar
- To be a qualified bar, the following requirements shall be met:
a. All entry restrictions;
b. It is a place that sells and consumes intoxicating liquors within the meaning of Section 53(1) of the Dutiable Commodities Ordinance (Cap. 109);
c. The establishment is permanently and completely partitioned off from any other establishments;
d. There is in force a liquor licence in respect of and relating exclusively to the establishment;
e. Do not contain any displayed name of the establishment such as “restaurant”, “café”, “karaoke”, “internet”, or similar expressions in Chinese or English;
f. The establishment is not engaged primarily in the sale or supply of meals.
Designated Mahjong Room in a Qualified Club
- To be a qualified club, the following requirements shall be met:
a. All entry restrictions;
b. There is in force a certificate of compliance within the meaning of the Clubs (Safety of Premises) Ordinance;
c. The club-house is open 24 hours on any day on which it is open to members and their accompanied guests;
d. The establishment consists of at least 10 designated mahjong rooms.
- In order to be a designated mahjong room, the following requirements shall be met:
a. The room is furnished and used for the purpose of playing mahjong;
b. The room is permanently and completely partitioned off from the remainder of the establishment.
Qualified Nightclub
- To be a qualified nightclub, the following requirements shall be met:
a. There is in force a liquor licence in respect of the establishment;
b. Each displayed name of the establishment in a language other than Chinese contains the expression “night club” or “nightclub” or in Chinese contains the characters “©]Á`·|”;
c. Do not contain any displayed name of the establishment such as “restaurant”, “café”, “bar”, “internet”, or similar expressions in Chinese or English;
d. The establishment is not open for business between 6 a.m. and 12 p.m. on any day.
Bathhouse, Massage Establishment, and Mahjong-Tin Kau Premises
- Bathhouse means a bathhouse that is within the meaning of Section 3(1) of the Commercial Bathhouses Regulation and in respect of which there is in force a licence granted under that Regulation;
- Massage establishment means a massage establishment that is within the meaning of Section 2 the Massage Establishments Ordinance and in respect of which there is in force a licence granted under that Ordinance;
- Mahjong-tin kau premises means a gambling and gaming place where mahjong or tin kau are played within the meaning of Section 22 of the Gambling Ordinance and in respect of which there is in force a licence granted under the Ordinance.
Prescribed Sign for Deferment of Smoking Ban
- The person in charge of designated mahjong rooms in a qualified club shall ensure that a prescribed sign is displayed in a prominent position at each exclusive entrance of designated mahjong rooms and such signs are maintained in a legible condition. The prescribed sign shall comply with the following conditions:
a. It is square in shape and each side is at least 15 centimetres in length;
b. It is surrounded by a black line as demarcation and the background colour is white;
c. It reads in Chinese and English as follows: (in respect of a listed establishment that is a qualified club) “This is a designated mahjong room in a qualified club that has been included in the list of qualified establishments maintained under the Smoking (Public Health) Ordinance. The smoking ban will apply to this room in this establishment with effect from 1 July 2009”.
d. All characters and letters shall be printed in black and are plain and readily legible.
- On the other hand, the person in charge of qualified bar, qualified nightclub, bathhouse, massage establishment, and mahjong-tin kau premises shall ensure that a prescribed sign is displayed in a prominent position at each exclusive entrance of the establishment and such signs are maintained in a legible condition. The prescribed sign shall comply with the following conditions:
a. It is square in shape and each side is at least 15 centimetres in length;
b. It is surrounded by a black line as demarcation and the background colour is white;
c. It reads in Chinese and English as follows: (in respect of other listed establishment) “This establishment has been included in the list of qualified establishments maintained under the Smoking (Public Health) Ordinance. The smoking ban will apply to an indoor area in this establishment with effect from 1 July 2009”.
d. All characters and letters shall be printed in black and are plain and readily legible.
- The manager of a no smoking area that is not in a listed establishment shall ensure that no prescribed sign, or any other sign implying or suggesting that smoking is permitted in the area, is displayed in or outside the area.
- Any person who contravenes any of Items 14 to 16 above commits an offence and is liable on summary conviction to a maximum fine of $50,000 and, in the case of a continuing offence, to a further penalty of $1,500 for each day during which the offence continues.
Application to be Included as Qualified Establishment so as to Defer Smoking Ban
- To apply for the deferment of smoking ban on behalf of a qualified establishment, the person in charge of the establishment may apply to the Director of Health to include the name and address of the establishment in the list of qualified establishments, by submitting to the Director an “Application to be Included as Qualified Establishment so as to Defer Smoking Ban”, namely, Form 1.
- After reviewing and approving the application, the name and address of the establishment will be included in the “List of Qualified Establishments” available for the access by the general public.
- Where there is any change in any information given in the application submitted in respect of a listed establishment, and as a result the establishment is no longer a qualified establishment, the person in charge of the establishment shall, within 10 days after the change, inform the Director of Health of the change by submitting to the Director an “Application to Amend Submitted Information of a Qualified Establishment”, namely, Form 3. Any person who contravenes any of the above regulation commits an offence and is liable on summary conviction to a maximum fine of $50,000.
- If the person in charge of a listed establishment wishes to remove the name and address of the establishment from the list of qualified establishments, he may request the Director to do so by submitting to the Director an “Application for Removal of Establishment from the List of Qualified Establishments”, namely, Form 2.
Review Process
- If it is proven that any listed establishment no longer meets the requirements of a qualified establishment, the Director of Health will give the person in charge a prior written notice informing him that the name and address of the establishment may be removed from the list of qualified establishments. The person in charge of the establishment may make a written representation to the Director of Health within 14 days of receiving the notice.
- If the written representation is not accepted, the Director of Health will issue a written notice to the person in charge of the establishment informing him that the establishment will officially be removed from the list of qualified establishments. If the person in charge of the establishment is unsatisfied with such decision, the person in charge may, within 14 days after the decision, appeal to the Appeal Board by giving a written notice of appeal. However during the course of appeal, the establishment removed from the list is required to comply with the smoking ban as stipulated by the Smoking (Public Health) Ordinance.
