Control of Tobacco Ordinance, 2013

ASCENSION REVISED EDITION OF THE LAWS, 2017 CRIME AND CRIMINAL PROCEDURE CONTROL OF TOBACCO ORDINANCE, 20131 Ordinance A3 of 2013 In force 1 August 2013 except for Part VII No amendments to 1 November 2017 No subsidiary legislation to 1 November 2017 ___________________ CONTROL OF TOBACCO ORDINANCE, 2013 ARRANGEMENT OF SECTIONS 1. Short title and commencement 2. Interpretation PART II SMOKE-FREE PREMISES AND VEHICLES 3. Premises open to public 4. Places of work 5. Meaning of enclosed and substantially enclosed premises 6. Exemptions from smoke-free requirement 7. Enclosed vehicles 8. Additional smoke-free places PART III NO-SMOKING SIGNS 9. No-smoking signs in premises 10. No-smoking signs in vehicles PART IV PROTECTION OF YOUNG PERSONS 1 Under section 10 of the Revised Edition of the Laws Ordinance, 1999 this text is authoritative and is the sole authentic edition in respect of the law contained in it as at 1 November 2017. 2 11. Sale of tobacco to persons under 18 12. Possession of tobacco in a public place PART V ENFORCEMENT 13. Enforcement officer 14. Powers of authorised officer PART VI OFFENCES AND PENALTIES 15. Offences relating to smoking in smoke-free place 16. Offences relating to no-smoking signs 17. Offence of failing to prevent smoking in smoke-free place 18. Obstruction of officers PART VII FIXED PENALTIES 19. Fixed penalty notice 20. Contents of penalty notice 21. Effect of fixed penalty notice and payment 22. Proceedings for offence 23. Withdrawal of penalty notice PART VIII MISCELLANEOUS 24. Regulations AN ORDINANCE to make provision for the prohibition of smoking in certain premises, places and vehicles, and to prohibit the supply of tobacco to, and its possession in a public place by, persons younger than 18 years. PART I PRELIMINARY Short title and commencement 1. (1) This Ordinance may be cited as the Control of Tobacco Ordinance, 2013, and, subject to subsection (2), comes into force on 1st August 2013. (2) Part VII of the Ordinance comes into force on a date the Governor appoints by Order. Interpretation 2. In this Ordinance— “authorised officer” includes an enforcement officer appointed under section 13, and all 3 police officers; “no-smoking symbol” means a symbol which consists solely of a graphic representation of a single burning cigarette enclosed in a red circle of at least 70 millimetres in diameter with a red bar across it; “smoking” refers to smoking tobacco or anything which contains tobacco, or smoking any other substance and includes being in possession of lit tobacco or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked, and “smoke” and other related expressions shall be construed accordingly; “smoke-free” in relation to any premises or vehicle, means that no person is allowed to smoke while at such premises or in such vehicle; “smoke-free place” means any premises, place or vehicle which is smoke-free by virtue of any provision of this Ordinance; “tobacco” includes cigarettes, any product containing tobacco and intended for oral or nasal use and smoking mixtures intended as a substitute for tobacco, and the expression “cigarette” includes cut tobacco rolled up in paper, tobacco leaf, or other material in such form as to be capable of immediate use for smoking. PART II SMOKE-FREE PREMISES AND VEHICLES Premises open to public 3. (1) All premises which are open to the public are to be smoke-free but, subject to section 4, are to be smoke-free only during such times as the premises are open to the public. (2) For purposes of this section, premises are “open to the public” if the public or a section of the public has access to them, whether by invitation or not, and whether on payment or not. (3) If only part of the premises is open to the public, the premises are to be smoke- free only to that extent. (4) Premises are to be smoke-free under this section only in those areas which are enclosed or substantially enclosed as defined in section 5. Places of work 4. (1) All premises which are used as a place of work (including voluntary work) are at all times to be smoke-free if— (a) the premises are used by more than one person (even if the persons who work there do so at different times, or only intermittently); or (b) members of the public might attend for the purpose of seeking or receiving goods or services from any person working there. (2) If only part of the premises is used as a place of work, the premises are to be smoke-free only to that extent. (3) Premises are to be smoke-free under this section only in those areas which are enclosed or substantially enclosed as defined in section 5. 4 (4) A private dwelling which is also used as a place of work is exempt from the smoke-free requirement of this section if, but only if, the work done there is only limited to work in one or more of the following forms: (i) providing personal care for a person living in the dwelling; (ii) assisting with the domestic work of the household in the dwelling; (iii) maintaining the structure or fabric of the dwelling; (iv) installing, maintaining or removing any service provided to the dwelling for the benefit of persons living in it. (5) For purposes of subsection (4), “private dwelling” includes any self-contained residential accommodation for permanent, temporary or holiday use and any garage, outhouse or other structure for the exclusive use of persons living in the dwelling. Meaning of enclosed and substantially enclosed premises 5. (1) For the purposes of sections 3 and 4, premises are— (a) enclosed if they have a ceiling or roof and, except for doors, windows and passageways, are wholly enclosed either permanently or temporarily; or (b) substantially enclosed if they have a ceiling or roof, but the opening (or an aggregate area of openings) in the walls is less than half of the area of walls. (2) In determining the area of opening (or aggregate area of openings) under subsection (1)(b), no account is to be taken of openings in which there are doors, windows or other fittings that can be opened or shut. (3) In this section— (a) “roof” includes any fixed or moveable structure or device which is capable of covering all or part of the premises as a roof, including a canvas awning; and (b) “walls” include other structures that serve the purpose of walls and constitute the perimeter of the premises. Exemptions from smoke-free requirement 6. (1) The following premises are exempt from the smoke-free requirement under sections 3 and 4: (a) a place designated as a smoking area in accordance with subsection (2); and (b) any other place exempted by the Governor by regulation under section 24. (2) A person having charge of the management of any smoke-free premises may designate an area of such premises, to be known as a “smoking area”, where smoking is allowed, provided that such area— (a) is clearly marked as an area in which smoking is permitted; (b) has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid, floor-to-ceiling walls; (c) does not have a ventilation system that ventilates into any other part of the premises. Enclosed vehicles 7. (1) An enclosed vehicle or any enclosed part of a vehicle is to be smoke- free if it is used— (a) by members of the public or a section of the public (whether or not for reward 5 or hire); or (b) in the course of paid or voluntary work by more than one person (even if those persons use the vehicle at different times or only intermittently). (2) A vehicle or part of a vehicle is enclosed for the purposes of subsection (1) if it is enclosed wholly or partly by a roof and by any door or window that may be opened or by any window which cannot be opened. (3) For purposes of subsection (2), “roof” includes any fixed or moveable structure or device which is capable of covering all or part of the vehicle, including any canvas, fabric or other covering, but in relation to a vehicle that is engaged in conveying persons, does not include any fixed or moveable structure or device which is completely stowed away so that it does not cover all or any part of the vehicle. (4) A vehicle is not used in the course of paid or voluntary work for purposes of subsection (1)(b) if it is used primarily for the private purposes of a person who owns the vehicle, or has a right to use it, and such use is not restricted to a particular journey. Additional smoke-free places 8. (1) The Governor may make regulations designating as smoke-free any place or description of place or vehicle, which is not otherwise smoke-free under this Ordinance if, in the opinion of the Governor, there is a significant risk that (without such a designation) persons present there would be exposed to significant quantities of smoke. (2) Any place or vehicle designated as smoke-free under subsection (1) need not be enclosed or substantially enclosed. (3) Regulations under this section may provide that such places or description of places or vehicle are to be smoke-free only— (a) in specified circumstances; (b) at specified times; (c) if specified conditions are satisfied; (d) in specified areas. PART III NO-SMOKING SIGNS No-smoking signs in premises 9. (1) A person who occupies or is concerned with the management of smoke-free premises must ensure that no-smoking signs complying with subsection (2) are displayed in those premises in accordance with the requirements of this section. (2) There must be displayed in a prominent position near (and inside) each entrance to smoke-free premises at least one no-smoking sign which— (a) is at least 150 millimetres × 200 millimetres; (b) displays the no-smoking symbol; and (c) contains, in characters that can be easily read by persons using the entrance, the words “No Smoking. It is against the law to smoke in these premises”. 6 (3) The words “these premises” in subsection (2)(c) may be substituted by words which refer to the particular smoke-free premises. No-smoking signs in vehicles 10. A person with the management responsibilities for a smoke-free vehicle must ensure that at least one sign displaying the no-smoking symbol is displayed in a prominent position in each compartment of the vehicle which— (a) is constructed or adapted to accommodate persons; and (b) is, or may from time to time be, wholly or partly covered by a roof. PART IV PROTECTION OF YOUNG PERSONS Sale of tobacco to persons under 18 11. (1) In this Part, “young person” means a person under the age of 18 years and “public place” means any place to which, at the material time, the public have access (whether on payment or otherwise). (2) It is an offence for a person to— (a) sell tobacco to a young person, whether for his or her own use or not; (b) supply tobacco to any young person in any public place; or (c) have responsibility for the welfare of a young person and cause or permit that young person to smoke tobacco in any public place. Penalty: A fine of £1,000. (3) It is a defence for a person charged with an offence under subsection (2) to prove that he or she took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. Possession of tobacco in a public place 12. A young person found with any tobacco in his or her possession in any public place commits an offence. Penalty: A fine of £500. PART V ENFORCEMENT Enforcement officer 13. The Governor may appoint any person to be an enforcement officer for purposes of this Ordinance. Powers of authorised officer 14. (1) An authorised officer has the right to do any of the following: (a) exercise, in relation to the enforcement of this Ordinance, any power which could be exercised by a police officer (under the Police and Criminal Evidence Ordinance, 2003 or otherwise) in relation to the enforcement of any other law which creates criminal offences; 7 (b) seize any tobacco in the possession of any person apparently under the age of 18 years whom the officer finds smoking in any public place, and any tobacco so seized must be disposed of in the manner the most senior police officer on duty on Ascension considers appropriate. (2) A person from whom any tobacco is seized under subsection (1)(b) may, within 21 days of the date of seizure, make an application to the Magistrates’ Court for the tobacco to be returned to the person and the court must, after enquiring into the matter— (a) if satisfied that the person was in fact over the age of 18 years on the date of the seizure, order that the tobacco be returned to him or her; (b) in any other case, order that the tobacco be destroyed, and, if no application is made under this subsection within the said period of 21 days, the said police officer may cause the tobacco to be destroyed. (3) An authorised officer who seizes any tobacco under subsection (1)(b) must provide the person from whom it is seized with a receipt containing at least the following information: (a) the name of the authorised officer; (b) a description of the item or items seized; and (c) a notice of that person’s rights under subsection (2). PART VI OFFENCES AND PENALTIES Offences relating to smoking in smoke-free place 15. (1) A person who smokes in a smoke-free place commits an offence. Penalty: A fine of £300. (2) It is a defence for a person charged with an offence under subsection (1) to show that the person did not know, and could not reasonably have been expected to know that it was a smoke-free place. Offences relating to no-smoking signs 16. (1) A person who fails to comply with the duty in section 9 or 10 to display no-smoking signs commits an offence. Penalty: A fine of £300 (2) It is a defence for a person charged with an offence under subsection (1) to show that— (a) the person did not know, and could not reasonably have been expected to know, that the premises, place or vehicle was smoke-free; (b) the person did not know, and could not reasonably have been expected to know, that no-smoking signs complying with the requirements of this Ordinance were not being displayed in accordance with the requirements of this Ordinance; or (c) on any other grounds it was reasonable for the person not to comply with the duty. Offence of failing to prevent smoking in smoke-free place 8 17. (1) A person who controls or is concerned in the management of any smoke-free place (and, in the case of a vehicle which is smoke-free, also the driver) has a duty to cause a person smoking in that place or on that vehicle to stop smoking. (2) A person who fails to comply with the duty in subsection (1) commits an offence. Penalty: A fine of £500. (3) It is a defence for a person (‘P’) charged with an offence under subsection (2) to show that P— (a) took reasonable steps to cause the person in question to stop smoking; (b) did not know, and could not reasonably have been expected to know, that the person in question was smoking; or (c) on any other grounds it was reasonable for P not to comply with the duty. Obstruction of officers 18. (1) A person who intentionally obstructs an authorised officer acting in exercise of his or her functions under this Ordinance commits an offence. Penalty: A fine of £500. (2) A person who without reasonable cause fails to give to an authorised officer acting in the exercise of his or her functions under this Ordinance any facilities, assistance or information which the authorised officer reasonably requires of the person for the performance of any function, commits an offence. Penalty: A fine of £500. (3) A person who, in purported compliance with any requirement of an authorised officer. makes a statement which is false or misleading in a material particular, knowing that it is false or misleading or being reckless as to whether it is false or misleading, commits an offence. Penalty: A fine of £500. (4) Omitted PART VII FIXED PENALTIES Fixed penalty notice 19. (1) An authorised officer who has reason to believe that a person has committed an offence under section 11, 12, 15, 16 or 17 may give the person a penalty notice in respect of the offence. (2) A penalty notice is a notice offering a person the opportunity to discharge any liability to conviction for the offence to which the notice relates by paying a penalty in accordance with this Part. Contents of penalty notice 20. A penalty notice must be in the form prescribed by regulation and must state— (a) the alleged offence (and give such particulars of the circumstances alleged to 9 constitute it as are necessary for giving reasonable information about it); (b) the amount of the penalty and the period for payment of it, which must not be less than 30 days from the date of the notice; (c) the consequences of not paying the penalty before the end of the period mentioned in the notice; (d) the person to whom and the address at which payment may be made; (e) the person to whom and the address at which any representations relating to the notice may be made; and (f) that the person to whom it is given has a right to be tried for the alleged offence and explain how that right may be exercised. Effect of fixed penalty notice and payment 21. (1) Proceedings for the offence in respect of which a penalty notice was given may not be brought before the end of the period for payment of the penalty. (2) Subsection (1) does not apply if the person to whom the notice was given has returned the penalty notice to the authorised officer indicating that the offence is denied. (3) If the penalty is paid in accordance with the penalty notice before the end of the period mentioned in the notice, no proceedings for the offence may be brought and section 22 does not apply. (4) If proceedings have been brought under section 22 pursuant to an indication under subsection (2), but then the penalty is paid in accordance with the penalty notice before the end of the period mentioned in the notice, those proceedings may not be continued. Proceedings for offence 22. If the person to whom a penalty notice has been given fails to pay the penalty by the due date, proceedings may be taken against the person as if the penalty notice had not been issued. Withdrawal of penalty notice 23. (1) If an enforcement officer considers that a penalty notice should not have been given, the notice may be withdrawn. (2) If a penalty notice is withdrawn— (a) any amount which has been paid by way of penalty in pursuance of the penalty notice must be repaid; and (b) no proceedings may be brought or continued against the person to whom the notice was given for the offence in question. PART VIII MISCELLANEOUS Regulations 24. The Governor may make regulations necessary or convenient for the purposes of this Ordinance, and without limiting that power, may specifically— (a) exempt certain places or description of places or vehicles from the smoke-free 10 requirement under this Ordinance, which regulations may provide that such exemption applies only in specified circumstances, at specified times, if specified conditions are satisfied or in specific areas; (b) prescribe the form of a fixed penalty notice issued under Part VII; (c) prescribe the amount of the fixed penalty for purposes of section 20. ________________________