Victorian Numbered Acts

TOBACCO (AMENDMENT) ACT 2005 (NO 45 OF 2005) - SECT 24

For sections 5C, 5D and 5E of the Tobacco Act 1987 substitute —

        '5C.     Outdoor dining or drinking areas: offence by smoker

    (1)     A person must not smoke in an outdoor dining or drinking area if—

        (a)     the area has a roof and walls in place; and

        (b)     the total actual area of the wall surfaces exceeds 75% of the total notional wall area.

Penalty:     5 penalty units.

    (2)     If an inspector believes on reasonable grounds that a person is contravening sub-section (1), the inspector, on producing his or her identity card, may direct the person to cease the contravention.

    (3)     A person who is contravening sub-section (1) must not, without reasonable excuse, fail to comply with a direction by an inspector to cease the contravention.

Penalty:     5 penalty units.

    (4)     In this section—

"total notional wall area" means what would be the total area of the wall surfaces if the walls were—

        (a)     at the perimeter of the roofed area; and

        (b)     continuous; and

        (c)     of a uniform height equal to the lowest height of the roof.

        5D.     Outdoor dining or drinking areas: offence by occupier

    (1)     If smoking occurs in an outdoor dining or drinking area, in contravention of section 5C, the occupier of the area is guilty of an offence and liable to a penalty not exceeding 5 penalty units.

    (2)     It is a defence to a prosecution under sub-section (1) if the defendant proves that the defendant did not provide an ashtray, matches, a lighter or any other thing designed to facilitate smoking where the contravention occurred and that—

        (a)     the defendant was not aware, and could not reasonably be expected to have been aware, that the contravention was occurring; or

        (b)     the defendant—

              (i)     requested the person contravening to stop smoking; and

              (ii)     informed the person that the person was committing an offence.

        5E.     Outdoor dining or drinking areas: no smoking signs

    (1)     The occupier of an outdoor dining or drinking area in which smoking is prohibited by section 5C is guilty of an offence, and liable to a penalty not exceeding 5 penalty units, if, without reasonable excuse, acceptable no smoking signs are not displayed in accordance with sub-section (2).

    Note:     Section 3 defines an acceptable no smoking sign.

    (2)     The signs must be displayed in a manner that ensures that a person is reasonably likely to see one or more of them either on entering the outdoor dining or drinking area or from within the outdoor dining or drinking area.'.