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Patrons can keep puffing on Port pub's patio; Region loses smoking appeal

Smokers on a Port Dalhousie patio won't have to butt out after Niagara Region lost its legal battle with the Kilt and Clover Monday.

In what is being called a precedent-setting case, Judge Ann Watson ruled the pub wasn't breaking the law by allowing smoking on an uncovered portion of its wraparound patio.

"Although this is one patio that extends around the building, the one patio contains two very clear and distinct places or areas," Watson said, dismissing the Region's appeal in the Ontario Court of Justice.

The Region was trying to overturn a July 2007 decision by a justice of the peace, who decided in favour of the pub.

"We wanted the law clarified and her honour gave us that clarity," Linda Rix, manager of the Region's chronic disease prevention division, said outside the courtroom.

She said regional lawyers would take a look at the decision, but didn't know if it would be appealed further.

Under the Smoke Free Ontario Act, smoking can take place on a patio, but not on a patio with a roof.

The Kilt and Clover's L-shaped patio has a permanent awning on the north side of its building, but is uncovered on its west side.

The pub was charged under the act in August 2006, when bylaw officers found four people smoking on the uncovered side of the patio.

The Region's health department and the Ministry of Health have argued if a roof covers part of a patio, smoking is prohibited on the entire patio.

But Watson found the area where people were smoking did not have a roof so smoking was not prohibited in the area.

Kilt and Clover owner David Prentice was out of the country and could not be reached for comment Monday.

His lawyer, Patrick Little, said the decision is precedent-setting. "Absolutely," he said. "It just so happened the Kilt and Clover were first."

Since successfully fighting the charges in July, Little said he has received calls from lawyers with similar cases in Toronto, Windsor and Ottawa.

He said the decision will help Prentice and others in the hospitality business who have patios to clearly create roofed areas and unroofed areas that meet the intention of the legislation.

"You've got to have a roof or something close to a roof or it's not enclosed," Little said.

Rix said regional bylaw officers will have to judge each patio on a case-by-case basis before laying charges.

"We'll have to look at each one individually," she said.

But the Region, she said, is more interested in compliance than punishment.

"We work very hard with the community on that," she said. "Enforcement to us is obtained by compliance."

Region, pub await ruling in smoking case

Posted By By KARENA WALTER St Catharines Standard

A Port Dalhousie pub owner and the Region are awaiting what is believed will be a precedent-setting court decision on Ontario’s no-smoking law that will reach far beyond patios in Niagara. The Region’s appeal of a July ruling in favour of the Kilt and Clover was heard in court in St. Catharines on Monday. At issue is whether smokers should be allowed to light up on the uncovered section of a bar’s patio if the patio also has a covered section. Judge Ann Watson is scheduled to release her decision on Feb. 25. “This is one of the first decisions in Ontario, in fact it may be the first, that is going to give a definitive interpretation of what a roof is under the Smoke- Free Ontario Act,” Mike Kyne, director of legal services for Niagara Region, said Tuesday. “That’s why it’s important.” The Kilt and Clover was charged in August 2006 when the Region found four people smoking on the uncovered part of the patio. The bar argued the no-smoking law applied only to the covered portion of the patio. A justice of the peace agreed with the Kilt and Clover in July 2007.   The Region filed a notice of appeal soon after the decision. Kyne said the Region’s public health department and the Ministry of Health argue that if a roof covers part of a patio, smoking is prohibited on the entire patio. He said the case turns on the wording of a section of the Smoke-Free Ontario Act. The section states a roof is a “physical barrier of any size whether temporary or permanent, that covers an area or place or any part of an area or place and that is capable of excluding rain or impeding airflow, or both.” Kilt and Clover owner David Prentice said his L-shaped patio has a 12-metre- long covered section and a 9.6-metre-long uncovered portion. They are on adjoining sides of the building. Prentice, a non-smoker, said allowing people to smoke on the uncovered section of his patio is just a convenience. Customers with tabs don’t have to leave the premises to smoke and staff don’t have to go far for cigarette breaks. “It’s never been a pro-smoking crusade on my part,” he said. “It wasn’t my intent to have statutory implications.” The appeal was argued for the Region by Woodstock lawyer Kevin McHugh and for the pub by St. Catharines lawyer Patrick Little. The Region laid 48 charges under the Smoke-Free Ontario Act in 2007 for smoking in public places such as bars, restaurants and workplaces. Regional tobacco control manager David Lorenzo said 44 of the charges resulted in convictions while the other four are before the courts. “Overall, Niagara’s really satisfied with our compliance rates,” Lorenzo said. “We continue to educate more than enforce.” The fine is $250 plus a $55 victim surcharge.

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Bar owner calls Region's puff
In what could set a precedent in Ontario, Kilt and Clover owner David Prentice wins ruling allowing smokers to light up on an uncovered portion of his patio, beating charges he drew 'on purpose'

St. Catharines Standard- July 11, 2007 by Marlene Bergsma

A Port Dalhousie bar owner has won what he is calling a precedent-setting victory against the province's no-smoking legislation. A decision handed down in provincial offences court in St. Catharines on Tuesday afternoon says smoking is legal on the west patio of the Kilt and Clover, and three charges against David Prentice, the bar's owner, were dropped.
The Region's smoke police charged Prentice last August when an inspector found four people smoking on the uncovered section on the west side of the bar's L-shaped patio - the portion overlooking Main Street.
According to an agreed statement of facts, the patrons were being served by Kilt and Clover staff, and smokers were using ashtrays on the tables.
Prentice said Tuesday he had been waiting for the charges, ever since Niagara Region officials had informed him of their interpretation of the province's beefed up Smoke Free Ontario Act, which implemented tougher new smoking rules last June.
At issue was whether his whole L-shaped patio should be smoke-free, or only the portion that was covered by an awning.
"I wasn't surprised (by the charges)," said Prentice in an interview after Tuesday afternoon's victory, "because I instructed my staff to continue to allow people to smoke in that section."
Prentice said he knew people could not smoke on the covered portion of his patio overlooking Lock Street, but he believed the uncovered portion should be a permitted smoking zone.
"I drew the charge on purpose, to go to court to fight what I thought was nonsensical," he said.
The issue came down to the definition of a covered patio, said David Lorenzo, a manager in the Region's tobacco control program.
"He has one way of looking at the legislation, we took a different viewpoint," said Lorenzo, whose department said if any area of a patio was covered, the entire patio had to be smoke-free. Since the Kilt and Clover patio was continuous, the Region considered it to be all part of the same patio.
Justice of the Peace David Brown heard the case on May 31 and handed down his decision on Tuesday, agreeing with Prentice that smokers can light up on the west side.
"Basically, if the province leaves the door open by saying you can smoke outside on an open patio, then you are going to run into the issue of what is covered or what is not covered," said Patrick Little, Prentice's lawyer.
Little said neither he nor the prosecutor could find any other cases dealing with the same issue, which leads him to believe it's precedent-setting.
Lorenzo said it will be up to the provincial Ministry of Health Promotion to decide whether to appeal Tuesday's decision.
"We will contact them and they will likely be wanting the transcripts," he said.
"It's fairly new legislation and there are still some grey areas," Lorenzo said.
The Region enforces the rules, but it's up to the province to decide what should be done with the decision.
Overall, smokers and proprietors in Niagara are doing a good job of implementing the tougher anti-smoking rules, Lorenzo said. Most people comply after a written warning is issued, he said, and public health officials are also heartened by the reduction in overall smoking rates.
Prentice, who doesn't smoke, said it would have been cheaper to pay the roughly $1,200 in fines than the $5,000 he expects he'll have to pay his lawyer, but he wanted to make a point.
"It was a matter of integrity," he said. "You've got to go with your gut instinct and with what you believe in. I thought it was wrong and I thought it was unfair.
"It was 100 per cent about the principle."