Small Dutch bars cannot be held to smoking ban: appeals court

May 12, 2009

A Dutch appeals court ruled Tuesday that small bars with no staff except their owners are exempt from a national smoking ban introduced for the hospitality industry last July.

The appeals court of Den Bosch, in the southern Netherlands, found two owners of the Victoria cafe in Breda, near the Belgian border, not guilty of having contravened the ban.

"The court finds that the (ban) is partly non-binding, as it lacks legal grounding" regarding establishments with no staff, said a court statement.

The ban on smoking in the hotel, restaurant and catering industry had sought to protect staff from the dangers of second-hand smoke inhalation.

"This is a huge boost for (small establishments) to get back to business," said Joris Prinssen, a spokesman for industry association Koninklijke Horeca Nederland, in reaction to the judgement.

Court spokesman JJ van der Kaaden told AFP that Tuesday's ruling would apply to all small cafes and bars that employed no staff.

But its application was frozen by an announcement by prosecutors that they intended appealing the verdict in the Supreme Court. This could last 18 months.

"Today's decision will not be formal until confirmed by the Supreme Court," said Kaaden.

"But one can imagine that courts asked to consider similar cases in the interim, would be unwilling to make any findings until the outcome of that appeal is known."

The owners of the Victoria cafe were first acquitted by a lower court last month, escaping prosecution demands for a 1,200 euro (1,600-dollar) fine and closure for a month. The prosecution appealed the finding.

The cafe is run by the owners with no other employees.

Several thousand small bars and cafes in the Netherlands united late last year to flaunt the smoking ban and create a joint legal defence fund, arguing they lacked the floor space and money to erect separate smoking-only areas.

A recent Dutch health ministry study found that 62 percent of Dutch cafes saw a drop in business in October and November 2008, compared with a year earlier, on account of the smoking ban.

Prinssen said there were some 9,500 bars in the Netherlands, of which 3,000 employed no personnel.

In February, the owners of a cafe with no employees in the northern Dutch town of Groningen was fined 1,200 euros in the first-ever trial involving a breach of the Dutch smoking ban. An appeal in that case is pending.

The House of Representatives in the Dutch parliament asked Tuesday for a new debate on the smoking ban.

(c) 2009 AFP