The Smoking Ban

Posted on May 11, 2012


The topic of this post differs largely from our typical posts, but as it touches on an area that affects many licensees, we believe it is worth posting.

Recently, there have been renewed discussions on the efforts to trim back the smoking ban.  One bill, introduced last year, would permit smoking in seperate enclosed locations and on patios.  Until and unless such a bill becomes law, many licensees are left pondering ways to “get around the law.”  As summer arrives, we are hearing more and more ideas regarding permitting smoking outdoors.  The information below, taken from, was written as a response to several inquiries about using an SDM license to sell “to go” beers and then allowing patrons to smoke and drink outside of the licensed premises.  After hearing the same question again yesterday, it became evident that this information should be widely shared.

Please note – This post is tailored specifically to the question of using an SDM license and adjacent unlicensed premises.  If you have other questions about the smoking ban, please feel free to contact us at

The Smoking Ban and On-Premise Licensees

Restaurant and bar operators shall prohibit smoking at their establishments. Smoking will not be permitted in outside areas where service is intended to take place.  Compliance is determined by the following:

  • Clearly and conspicuously post “no smoking” signs or the international “no smoking” symbol at each entrance and in other areas where smoking is prohibited under this act. These other areas may include outdoor areas such as patios or rooftops where patrons are intended to receive service and/or consume food and/or beverages.
  • Remove ashtrays and other smoking paraphernalia from anywhere where smoking is prohibited.
  • Inform individuals that smoking in the establishment is a violation of state law.
  • Refuse service to an individual smoking in violation of this act.
  • Ask an individual smoking in violation of this act to refrain from smoking and, if the individual continues to smoke in violation of this act, ask him or her to leave.

“Getting Around” the Smoking Ban

Not surprisingly, one of the most frequent questions we are asked  is “how do I get around the smoking ban”? While we wish there was a good, one-size fits all answer, that is simply not the case.

Recently, we have heard a number of ideas regarding avoiding the smoking ban through the use of “to-go beers” by on-premise licensees who also have an SDM license.  The idea is that the licensee can sell a beer to go, and the patron can then exit the licensed premises, drink the beer, and smoke a cigarette.  These considerations should be kept in mind:

  • If you have an SDM license, you cannot sell beer to go and then allow customers to drink these beers while they smoke elsewhere on the property if the customers remain on property that is owned or leased by your licensed business.  To permit this will constitute a violation of Rule 436.1523.  This rule states that “[a]n off-premises licensee shall not knowingly allow a person to consume alcoholic liquor on property which is owned, leased, or possessed by the licensee and which is adjacent to the licensed premises.”
  • If the customers leave the property that is owned/leased by the licensed business, they may not consume alcohol on any public property, public roadway, sidewalks, etc.
  • If the customers leave the property that is owned/leased by the licensed business, they may not consume alcohol on any property that is held open to the public at large.  This includes parking lots and other areas that are held open to the public.
With these considerations in mind, there may still be alternatives which can be tailored to a licensee’s specific situation.  It will be necessary to consider the property of the licensee, local ordinances, and other factors.  To discuss a specific idea, feel free to contact us or your own “liquor lawyer.”


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*This information and thoughts herein are provided by the Liquor Lawyers at Stariha & Brower, PLC.  As always, we remind readers that the materials on this site are provided purely for informational purposes and are not legal advice. These materials are intended, but not promised or guaranteed, to be correct, complete, and current. This blog is not intended to be a source of legal advice. Therefore, the reader should not consider this information an invitation for an attorney-client relationship. Readers should always seek the advice of competent counsel.