Banning cigars on the terrace: is it legal?

It is not unusual to see signs outside certain establishments stating that smoking a cigar on the terrace is forbidden. Whatever the reasons that lead the owners to take that decision, is it actually legal?

What the law says about the use of public space

Under the French general code of public property, the use of public space by a business is subject to an application for authorisation. Once approved by the local council, that authorisation gives the owner of a bar or restaurant the right to use a pavement to seat customers. In return, they must comply with the rules in force.

In other words, a business cannot forbid someone smoking a cigar, or indeed cigarettes, from doing so on the public space it has been authorised to use.

Banning cigars on the terrace is possible in some cases

By banning smoking on the terrace, whether cigarettes or cigars, restaurants and bars place themselves in breach of the rules. If, however, the local council states that smoking on the public highway is forbidden, then that ban takes precedence and the business must in turn forbid cigar smoking on its terrace.

Otherwise, the ban is imposed without any legal basis. Apart from councils that have adopted such measures, the law is clear. The French circular of 29 November 2006 on the smoking ban in premises for collective use states that “as regards so-called social premises such as cafés, restaurants, nightclubs and casinos, the ban applies in enclosed and covered places, even where the frontage can be removed. Smoking will therefore be permitted on terraces, provided they are not covered or the frontage is open.”

Restaurant and bar managers who forbid cigar smoking on their open terraces may be accused of discrimination. They may therefore face withdrawal of their occupancy permit or termination of their public space occupancy agreement, on the grounds of failing to comply with the regulations in force.