But no smoking ban in Saarland amusement arcades?

The fact that tobacco smoke can be unhealthy not only for active smokers, but also for people in their immediate vicinity seems to be sufficiently proven. This is why smoking in public places is now completely banned almost everywhere in Germany. The so-called adjoining room exception can be used as a loophole in some federal states - including Saarland. However, as the local gaming arcades were excluded from this by the new gaming arcade law, one operator took legal action and was proved right. However, the Automaten-Verband-Saar warns against jumping to conclusions.

For some, smoking is a vice and a nuisance, for others it is a pleasure, a passion and deeply rooted in cultural or social rituals. But what happens when these personal freedoms come up against legal restrictions that are intended to protect the general public?

This legal regulation allows catering establishments to offer enclosed smoking rooms. In Saarland, a new legal debate has now been sparked around the special provision: the current Saarland Gaming Hall Act, which has been in force since 2023, excludes the possibility of the adjoining room exception for gaming halls. A strict smoking ban was imposed on all gaming arcades.

However, one operator took legal action against this and was partially successful in court. With a ruling from 2 September, which the Saarland Higher Administrative Court (OVG) made public in a press release on 5 September, the absolute smoking ban for the woman's establishment is suspended. This once again raises the question of how far personal freedom may go and whether these regulations are actually in the interests of health protection. However, the court made it clear that there was no relevance to the protection of non-smokers or gamblers in this case. The chances of the smoking ban being overturned appear to be good.

Saarland Higher Administrative Court temporarily suspends smoking ban, but why exactly?

A casino operator had complained that she had to completely prohibit her customers from smoking in her establishment, whereas casinos or casinos in Saarland are allowed to allow smoking in separate rooms. This distinction goes back to the Saarland Gaming Hall Act of 2023. Among other things, the provisions stipulate new minimum distances to addiction counselling centres or children's and youth facilities, earlier closures of gaming facilities and restrictions on consumption, including a strict smoking ban.

The OVG ultimately ruled that the ban violated the applicant's freedom to exercise her profession. There were insufficient grounds for this unequal treatment:

‘Specifically, it found that the applicant is not obliged for the time being (until a final first-instance decision is issued by the administrative court in the main proceedings pending there) to ensure that there is no smoking in its gaming hall in a separate smoking area there in which no gaming facilities are offered (smoking cabin).’

The ruling therefore applies for the time being until the final decision in the main proceedings and does not apply to all amusement arcades in the state.

The court cites the following reasons:

Neither the protection of non-smokers nor the protection of gamblers or the goal of combating addiction provide a viable basis for an absolute smoking ban that is limited to gaming arcades (i.e. does not also include casinos).’

Automaten-Verband-Saar warns arcade operators against immediately allowing smoking again

Despite the recent decision by the Saarland Higher Administrative Court to temporarily suspend the smoking ban in a Saarland gaming arcade, the Automaten-Verband-Saar (AVS) has issued an urgent warning against any premature action. The judgement only relates to the individual case of the plaintiff operator and has no general validity for other gaming arcades in Saarland.

The legal uncertainty as to whether the absolute smoking ban in casinos is constitutionally tenable in comparison to the regulation for casinos still needs to be clarified in detail. The AVS emphasises that the ban cannot be lifted prematurely without a binding clarification from the State Administration Office and the Saarland Ministry of Economic Affairs. However, the association has approached the responsible authorities in order to obtain a standardised regulation for all arcades in Saarland. Until such a resolution is finalised, the AVS appeals to amusement arcade operators to strictly observe the existing legal situation in order to avoid possible fines or other sanctions.

Conclusion

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