# Smoking ban in Hotels, is this a way around it?



## thedaras (10 Apr 2010)

If you are staying in a hotel and they don't have any rooms left ,where you are permitted to smoke, could you smoke out of the window?

Seriously...if the window is fully open and you light and smoke the ciggerete outside ,can you be fined?

Technically,its not in the room?


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## peteb (10 Apr 2010)

Who would fine you for smoking out the window of a non-smoking room? Surely thats just the way the hotel has designated them so people dont get a smelly room if they are non-smokers?! I'd say you would be ok!


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## mathepac (10 Apr 2010)

How positively childish. Of course you are smoking in the room. You, the  guest, are in the room and you, the guest, are the one smoking. "Ooohh,  I'm not smoking, the cigarette is and it's outside the window."

If the hotel's policy is for a fine, then hopefully, they'll enforce it.

As you're having problems with check-in times and smoking policies, maybe you'd consider staying at home for simplicity's sake ?


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## thedaras (10 Apr 2010)

Mathepac; 





> As you're having problems with check-in times and smoking policies, maybe you'd consider staying at home for simplicity's sake ?



Certainly when I studied law,people were always coming up with inovative ways of getting around the laws and finding loopholes.Thats called being human..

As a non smoker I have neither the desire to smoke in or out of the room,or in or out of the window.

The question remains for those who have a legal aspect on this,to say if a challange was made would it stand up ?


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## thedaras (10 Apr 2010)

peteb said:


> Who would fine you for smoking out the window of a non-smoking room? Surely thats just the way the hotel has designated them so people dont get a smelly room if they are non-smokers?! I'd say you would be ok!



It came to my attention when I was passing by a group of smokers outside a hotel and they were complaining about having to come down 5 flights to get outside to have a smoke.

We got chatting and one of them said perhaps smoking out the window would do the trick.

It would be very interesting to see what would happen in that situation..
Thanks.


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## Complainer (10 Apr 2010)

You can't smoke 'out a window'. You can smoke beside the window. Some of the smoke will go out the window. Some won't. The solution for the smoker is to a) find a hotel with smoking rooms, or b) go to the smoking area.


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## thedaras (10 Apr 2010)

They said the windows opened out quite far,and so were able to light and smoke outside it,I presume they tried to get a smoking room,must have been booked up,and the issue was having to go down so far to smoking area..

I remember my brother doing just that ,when he wasn't allowed smoke at home.And we never knew or got the smell of smoke.

Anyway the question still remains for the legal folk,could it be a loophole if hotel staff couldn't prove they had been smoking in the " room"?


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## shesells (11 Apr 2010)

Don't think it's a legal issue actually? The law says that you can smoke in a hotel bedroom, but it's hotel policies that designate bedrooms as smoking or non-smoking. I would imagine you may be breaching whatever documentation you signed at check in agreeing to comply with hotel policies but surely this would be a civil matter if pursued?


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## tenchi-fan (11 Apr 2010)

It's not really a legal issue. More an ethical issue.. or an issue of respect and decency. 

As for enforcing a fine, the hotel could bill you, you could refuse to pay, etc etc. You studied law, you tell me. If you caused a fire alert due to setting off a smoke detector you may be billed by the emergency services if there was a call out.


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## thedaras (11 Apr 2010)

tenchi-fan;
Firstly it is absolute rubbish to say its not really a legal issue.

If you  read my post you will see that I am looking for a legal aspect on it!

Eihics,respect,decency..emm..they were not thinking of murdering someone.

I am fully aware that a hotel could bill them.I know people in the UK and this is what happened when the staff smelt smoke,and saw butts in the room.

What do you mean .you studied law,you tell me?...
There is a reason why there are barristers...and there is a reason why there are Judges..


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## tenchi-fan (11 Apr 2010)

Right,

Then put it like this.

A woman is sitting in restaurant in her pajama bottoms, eating a bag of crisps she brought in with her from outside and chatting loudly on her mobile phone. She pushes open the window, lit a cig and but was told by restaurant staff she was violating the smoking ban - not to mention she wasn't being respectful to other diners.

Enter thedaras! He studied law. He came up with innovative ways of getting around the laws and finding loopholes. "The issue of respect doesn't come into it, your honour - she did not murder anyone. We talking about a legal issue! Technically, she was not in the room! I rest my case, your honour!"

Oh you savvy legal eagle!

My view is, if you stink up a non-smoking room you could be liable for cleaning costs, they might even bill you for it (as you admitted happened happened to your mates in the UK). Refuse to pay the bill and it could result in legal action. And they do have a case because "my head was stuck out the window, I was not actually in the room" is pure nonsense. It's not a loophole any more than smoking in a restaurant with your head out the window is a way around the smoking ban.


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## thedaras (11 Apr 2010)

tenchi-fan;
Perhaps you could let off steam somewhere else.

Your tone is aggressive ,attack the post not the person.


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## tenchi-fan (11 Apr 2010)

didn't particularly like your tone either.
"Firstly it is absolute rubbish " (just like the opening post)
"If you read my post " (condescending)
"Certainly when I studied law" (hmm)

Right, over and out i'm going to enjoy the weather.


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## thedaras (11 Apr 2010)

tenchi-fan said:


> didn't particularly like your tone either.
> "Firstly it is absolute rubbish " (just like the opening post)
> "If you read my post " (condescending)
> "Certainly when I studied law" (hmm)
> ...



One, this thread is* Askaboutlaw.*

It is not askaboutmorals/ethics/

 One of the first rules of studying law is to understand that not everything is black and white.


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## TreeTiger (11 Apr 2010)

The smoker is 'technically' inside the room even if they are hanging out the window from the waist up.


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## tenchi-fan (11 Apr 2010)

thedaras said:


> One, this thread is* Askaboutlaw.*
> 
> It is not askaboutmorals/ethics/
> 
> One of the first rules of studying law is to understand that not everything is black and white.



Which is why I wrote :

"My view is, if you stink up a non-smoking room you could be liable for cleaning costs, they might even bill you for it (as you admitted happened happened to your mates in the UK). Refuse to pay the bill and it could result in legal action. And they do have a case because "my head was stuck out the window, I was not actually in the room" is pure nonsense. It's not a loophole any more than smoking in a restaurant with your head out the window is a way around the smoking ban."

It's up to the judge really. Some judges are no-nonsense, but a good barrister will pick holes in anything.

Now do you really think a hotel is going to bother with legal action if no damage was done? and even if they did press charges, do you really think anyone is going to spend thousands on a barrister to defend them? 

It's not a legal issue, thedaras, and you certainly didn't study such a case at college either!


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## shesells (11 Apr 2010)

thedaras said:


> One, this thread is* Askaboutlaw.*
> 
> It is not askaboutmorals/ethics/
> 
> One of the first rules of studying law is to understand that not everything is black and white.



Did you read my post? It's not a legal issue. The law says you can smoke in a hotel room but hotels have the right to have their own policies. This is what you would be breaching and the sanction depends on what you signed at booking/check in.


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## ajapale (11 Apr 2010)

Moved from   Askaboutlaw
to Letting Off  Steam

aj
moderator




shesells said:


> The law says you can smoke in a hotel room but  hotels have the right to have their own policies. This is what you would  be breaching and the sanction depends on what you signed at  booking/check in.


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## thedaras (12 Apr 2010)

The cops got a tip off about a well known drug dealer.
The drug dealer was to collect 5kg of heroin at a particular spot.
When he collected the heroin,he put them in his car and then the cops arrested him on possesion of drugs.

The dealer was brought to jail and the drugs were sent to the lab.
When the lab results were returned ,it was found that it was not drugs after all ,but a flour substance.

He then obviously couldnt be charged with possession of drugs and was released.
My point is ,could the same happen in the case of a hotel room where someone claims they were not smoking in the room, but in fact out of the window,they may have been in the room but the cigerette wasnt.

You would be amazed at what people try..


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## DonDub (12 Apr 2010)

Well spoted thedaras..

Was it the sun yesterday that caused this post to be totally blown out of all proportion!!

You asked a sensible question.
Let me give you my experience. My aunt owns a hotel.

She said she wouldnt chance taking any action to someone who smokes out a window,provided that the smell isnt in the room and there is no evidence of a cig being smoked.

She has said ,that you must have evidence of the person smoking in the room,ie; a butt, or ashes .
Other than that you are on very shaky ground.
You are on to something thedaras,obviously a legally trained mind.


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## DonDub (12 Apr 2010)

TreeTiger said:


> The smoker is 'technically' inside the room even if they are hanging out the window from the waist up.


 
Agree, But if you look at thedaras last post, the cig wasnt in the room.


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## Sunny (12 Apr 2010)

Hardly one of those questions that would have the Country's finest legal brains scratching their heads. Shesells aswered this about 15 posts ago. It's not a legal issue. You are allowed to smoke in hotel bedrooms. The hotel is entitled to designate certain rooms as non-smoking and are entitled to charge you if they find you were smoking in one of those rooms and left a smell. Can't see why your excuse that you were in the room but your cigerette was outside the window would be any sort of defence if the hotel decided to charge you. If I shoot up on heroin while hanging out the window, I can hardly claim I was inside and the drugs were outside...


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## DonDub (12 Apr 2010)

shesells said:


> Did you read my post? It's not a legal issue. The law says you can smoke in a hotel room but hotels have the right to have their own policies. This is what you would be breaching and the sanction depends on what you signed at booking/check in.


 
It could become a legal issue/I would have thought that it is against the law to smoke in an area designated as non smoking?


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## DonDub (12 Apr 2010)

Wasnt thedaras point not if it were legal or not,but if it could be used as a defence?


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## Sunny (12 Apr 2010)

DonDub said:


> It could become a legal issue/I would have thought that it is against the law to smoke in an area designated as non smoking?


 
As far as I know, not hotel rooms because they are not public places and do not some under the smoking ban legislation. It's for the hotel to decide and charge you if you smoke in a non-smoking room. Has nothing to do with the Authorities unlike if you were caught smoking in a bar.

BTW, I could be wrong!


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## Sunny (12 Apr 2010)

DonDub said:


> Wasnt thedaras point not if it were legal or not,but if it could be used as a defence?


 
You can use anything as a defence.


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## DonDub (12 Apr 2010)

Sunny said:


> As far as I know, not hotel rooms because they are not public places and do not some under the smoking ban legislation. It's for the hotel to decide and charge you if you smoke in a non-smoking room. Has nothing to do with the Authorities unlike if you were caught smoking in a bar.
> 
> BTW, I could be wrong!


 
So back to thedaras post then, if the hotel fined you for smoking in the room,and you claimed you were not, and refused to pay the fine,wouldnt the logical conclusion be that that they would have to bring you to court ?
Therefore it becomes a legal issue.


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## Latrade (12 Apr 2010)

No defence. As others have said with the exemption (of sorts) for Hotels means that they can set their own rules and standards. Second though is the wording of the legislation which is that employers must not expose their employees to Environmental Tobacco Smoke. 

On face value this means smoking in these areas is banned, however, it would also mean that if some smoke were to come back into an area and expose employees, the hotel would still have a case. 

The physical act of smoking inside or outside the room is irrelevant, it's whether or not the ETS gets into the room that the law hangs on.


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## thedaras (12 Apr 2010)

It is very unlikely that the hotel would go that far, due to time/expense.?

Which is why I'm saying that if someone says I wasn't smoking in the room,would the hotel then not bother to take any action.

How does the hotel in this case determine if there is ETS in the room?


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## csirl (12 Apr 2010)

> It is very unlikely that the hotel would go that far, due to time/expense.?


 
But if they had a problem with it, the hotel chain would probably black list you.


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## MANTO (12 Apr 2010)

It is NOT against the law to smoke in Hotel rooms.
It IS against hotel policy to smoke in non smoking rooms.
The hotel IS by law allowed to enforce their policies if broken. 

You are breaking a policy that can be enforced by law but you are not breaking an actual law. 

IMO unless you have done any damage to the room the hotel will not go to expense to chase you for a fine.


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## Latrade (12 Apr 2010)

MANTO said:


> IMO unless you have done any damage to the room the hotel will not go to expense to chase you for a fine.


 
That's where the OP isn't actually an issue or defence as such. In the same way a hotel any impose an additional charge for any damage they say you caused to the room, they can do the same for a smell of smoke in a non-smoking room.

As with the damage issue, it's your word against theirs.


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## DonDub (12 Apr 2010)

thedaras said:


> If you are staying in a hotel and they don't have any rooms left ,where you are permitted to smoke, could you smoke out of the window?
> 
> Seriously...if the window is fully open and you light and smoke the ciggerete outside ,can you be fined?
> 
> Technically,its not in the room?


 
If you take what thedaras asked originally," If the window is fully open and you light and smoke the ciggerete outside,can you be fined?".

Well it looks like ,thedaras original post didnt ask about if it was legal or not,but if you were caught smoking out a window in a non smoking room,could you be fined.

I dont think it has been answered,regardless of if it being a legal/civil/hotel policy.The question is can you be FINED?

I know from what my aunt says that unless the hotel has direct evidence of smoking in a room,then nothing can be done.

It is a very interesting/worrying question,espically for hotel /B and Bs etc.


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## Complainer (12 Apr 2010)

thedaras said:


> My point is ,could the same happen in the case of a hotel room where someone claims they were not smoking in the room, but in fact out of the window,they may have been in the room but the cigerette wasnt.


If you want to play the silly technicalities game, then ask this - was any part of the person inside the room while they were smoking?


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## Latrade (12 Apr 2010)

DonDub said:


> If you take what thedaras asked originally," If the window is fully open and you light and smoke the ciggerete outside,can you be fined?".
> 
> Well it looks like ,thedaras original post didnt ask about if it was legal or not,but if you were caught smoking out a window in a non smoking room,could you be fined.
> 
> ...


 
The question wasn't clear to answer. Fined by who: The enforcing authority? No, because hotels are different and the rooms are not under the control of the enforcing authority. Fined by the hotel? Depends. They aren't at liberty to impose a "fine" as such, because that would be a criminal sanction, but can impose an "additional charge".

As such the same standards will apply to whether you take a dressing gown, break a lamp or spill wine on the carpet.


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## DonDub (13 Apr 2010)

What does it matter who issues the fine.
The question is would they be fined? 
Not who will fine them.


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## DonDub (13 Apr 2010)

Complainer said:


> If you want to play the silly technicalities game, then ask this - was any part of the person inside the room while they were smoking?



In the case of my aunts place, no part of the person was inside the room.

They were sitting on the window sill.

Do you mean as they had no body part "in" the room,that technically they were not "in" the room and therefore couldn't be fined for smoking in the room?

You see if you were in a *ground *floor room,and the smoking area was too far to be bothered going too,then you could open the window and hop out?

Or sit on the sill.

Then you wouldn't technically be in the room, and couldn't be fined .

Because if you were outside a pub ( in a designated smoking area )and the windows were open,they couldn't fine you if some smoke got in.

What do you guys and gals think,is this the answer? 

For the smokers it could be.
For the hotel/B and Bs, it may be a bit of a quagmire. 

42.


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## Complainer (13 Apr 2010)

DonDub said:


> In the case of my aunts place, no part of the person was inside the room.
> 
> They were sitting on the window sill.


Do you mean the window sill on the inside of the room, or the window sill on the outside?


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## Latrade (14 Apr 2010)

DonDub said:


> In the case of my aunts place, no part of the person was inside the room.
> 
> They were sitting on the window sill.
> 
> ...


 
As stated, the legislation isn't concerned with physical or metaphysical debates about being inside or outside a room. It's exposing employees to ETS.

The two examples you provide are different. With the pub, it has set up a smoking area adjacent to a window and so allowing ETS to enter the premises. That is the fault of the publican and they may be subject to enforcement regarding this if ETS is re-entering the building. Guidance to the legisation gives a recommendation of 6 metres away from any open window or vent.

The only possible defence is if there is no private land to designate a smoking area and people are smoking on the street. As the publican has no control over that, they can't be liable.

In the case of the hotel/BB if people are not using a designated smoking area and are either sitting on the window sill or standing under a window on the grounds of the Hotel, then the owner is entitled to enforce that. They have a designated smoking area and that is where smoking is permitted. It's their land, they are entitled to state where people can smoke. It's their right to implement any form of enforcement of that rule on their land, window sill or not.

It isn't grey at all. If a room was cleaned on the Monday and it wasn't smelling of smoke, a person checks in, leaves on Tuesday and the room smells of smoke Hotels can, and do impose an additional fee. It isn't a fine in the same way they don't fine you for breaking a glass or spilling wine. You can't directly prove I broke the glass or spilled the wine, but you can narrow it down to having occurred when I was in charge of that room.

The only time it is grey is like with the pub example where the person is smoking in a public area, such as a footpath. If the hotel control the grounds they can designate and enforce specified smoking areas.

That's why the first post was a silly one, it was trying to be clever with a bit of law that doesn't actually exist. The law is not to expose employees to ETS, the consequence of that is you can't smoke in a workplace, but that additional steps need to be taken to prevent ETS getting into the workplace.


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