Monday, 1 September 2008

The Bavarian Smoking Ban in Action

There is a lot of rubbish talked by the one of the Publican's bloggers about how the German High Court has ruled the German smoking ban as unconstitutional. It hasn't. What it has said is the law must be applied in consistent way, so that single room pubs are not disadvantaged by allowing multi roomed pubs a smoking room. Thus in three German states the law must be revised. The likely outcome is a complete ban on smoking. It would be unthinkable to go back now and I confidently predict that they won't.

Bavaria has no such problem. Smoking is completely banned in all pubs, so a level playing field and no need for law revision. Smoking is banned and it is constitutional. OK? This makes Bavarian pubs even more delightful places to be in and as far as I could tell, just as thriving as they always have been. Why am I telling you all this? Well our next stop on our tour was the walking and ski resort, Oberstdorf. We arrived knackered after a long ride high into the Allgäu Alps. Our room looked over towering peaks and a ski lift. It was stunningly beautiful.

After a good meal in a pub owned by the Allgäuer Brauerei who do a strong range of beers with the very decent, chewy, malty dunkel being my favourite, we strolled around the town before the call of beer became too strong. The nearest pub to our hotel would do. After all it was late. Nearly half past nine. I already told you it is early bed in the Bavarian sticks. After assuring the waiter that we only wanted a bevvy, we were shown into a delightful side room in which another family were sitting - mother and young child, father and what seemed to be a grandfather with his mate. All was well until the grandad lit up! The waiter rushed in, threw open the windows and angrily berated the old guy, pointing out smoking was "verboten" and reminding him of the presence of the young child. The miscreant said the mother didn't mind him smoking and the waiter was withering in his reply. A row ensued with the waiter (who was black) being told that this is a German pub - what right had he to tell him, a German to stop smoking. We watched in amazement - public rows in Germany are rare beasts - and the matter was concluded by the family being told to drink up and go. We exchanged glances and rolling eyes with the room's only other two occupants until order was restored.

The waiter returned and politely declined my order of another half litre*. He pointed out it was nearly ten and they'd be closing. Wouldn't a small beer be better? I wasn't going to argue with this guy! A small beer and "ein korn" were duly ordered. "Jawohl" says he.

*Postbraurei Nesselwang!


Ron Pattinson said...

Unfortunately it's not as simple as that in Bavaria. Yes, there is a total ban on smoking in pubs. But there's a loophole: call yourself a members only club and the smoking ban doesn't apply. Something like 20% of pubs in Nuremberg had become "smokers' clubs" when I was there in Spring.

Adeptus said...

There seems to be a similar trend towards smoking clubs in Münster recently, as the non-smoking laws came into force a couple of minths ago, and have had some revisions since. I don't understand why they don't just go for a blanket ban. It's just too bloody complicated otherwise.

Tandleman said...

Ron - I am well aware of them. Readers of this blog may know I am a smoking club member of a pub in Hamburg.The members only club thing is being challenged by the Bavarian authories. Nick knows the details. I think it is expected to be declared unlawful. We encountered a couple of them on our travels as smoking clubs within pubs, but they were firmly separate with a closed door. One was entirely empty while the non smoking bit was bustling, the other was about 80/20 in favour of non smoking. That was where the eating was going on.

Adeptus said...

I got so used to the all-out smoking ban in Ireland that I feel guilty lighting up indoors in Germany, so I nearly prefer to go outside :D

Erlangernick said...

I'm certainly no expert! I've tried to learn as much as I can about the Rauchverbot(e) (plural--each state has its own, despite what that chucklehead over at The Publican says about "Germany's smoking ban" being practically dead--which is of course simply flat out wrong), but am just a poor Ausländer here.

When the Bavarian Rauchverbot was first enacted, there was an exception for "geschlossene Gesellschaften", (*) which literally translates to "closed societies", or functionally to "private functions". Like, when you stumble across a Gaststätte somewhere, and there's a sign on the door saying "Sorry--geschlossene Gesellschaft heute, privat", and you can see a private party going on inside.

The law does NOT say anything about "Club" or "Verein", two words in Deutsch that mean exactly that: club. But publicans started interpreting the exception as allowing "Raucher Clubs" to be enacted. I've said that I expect a challenge to this exception in the Bavarian court to succeed, because it's too vague.

But now, I don't know. The high court, following its 31 July ruling on the smoking bans in Berlin and Baden-Württemberg, opined that the Bavarian law *is* perfectly fine, with its exception for "Raucher Clubs", since there is no differentiation between size of places or the number of rooms they have.

There has also been a specification or something which specifically states what a club operator has to do --maintain a list of members, know each member personally, and not allow application for instant one-day membership at the door, etc.-- to conform to the Raucherclub exception.

(*)Looking at the text of the enactment again: (fun with Deutsch!), the bit about "geschlossene Gesellschaften" is simply not there. I don't know what's up with that.

Article 6 defines where and how smoking areas may be set up--specifically EXCEPTING Gaststätten (pubs, restaurants, the gastronomie in general). This is what saves the Bavarian law from the problems encountered in the other states.

But now, back to beer. Wouldn't mind a Lees...Sparkler-frei, mind! Ah well, will have to settle for a hoppy Kellerbier instead. (Or for Ron, a malty fränkisches Dunkel.)

Tandleman said...

Thanks for the clarification Nick. My own view is those that choose to be smoking clubs for now at least, are at the bottom end of the market by and large. Good riddance to them. Keep us posted on the outcome

Erlangernick said...

Heh heh. This will teach me to post beFORE reading the paper...the Bavarian Constitutional Court did indeed make two rulings on both sides of the Rauchverbot (sorry, the Krauts' word is much better than "smoking ban") yesterday.

First, they turned down a publicaness's appeal to allow an exception for one-room, owner-run Gaststätten.

Second, they ruled that there are insufficient grounds to temporarily overturn the Raucherclub exception while they continue to consider the claim brought by a non-smoker's group challenging the legality of said exception, specifically how the supposed "clubs" fit into the category of "Gaststätten".

So there.

newspaper piece:
press release from the Bayerischen Verfassungsgerichthof:

And some Raucherclubs are doing well around here. What irritates me is that one of them said in the paper that "none" of his customers is a nonsmoker. Really? What were meine Frau and I then?

Another place we used to like went non-smoking (and it was great for us of course), but then became a Raucherclub. She's rather smoke than have us as customers.