From our consumer protection work – Case 3: Indoor space remains indoor space

20.06.2022  No matter what you call it: Walls, doors and ceiling form an interior space. Whether doors are open or closed is irrelevant.

One of our members discovered that a large Nuremberg pub has a fully enclosed entrance area that can be used by customers as a dining room and is invitingly furnished with tables and chairs. Ashtrays were provided on the tables for customers, which were also used:

In an article by titled “Do smokers bother in Franconia’s beer gardens? That’s what the landlords say”, the operators consider the interior to be a covered passageway. Specifically, it says: “‘If you feel disturbed, you just have to go inside’, says Sabine Dörfler, service manager at ‘xx’. ‘Everyone knows that smoking is allowed in the beer garden. And in her restaurant, smoking is not only allowed outside in the open air, but also in the covered passageway between the town hall square and the restaurant door.”

Pro Rauchfrei issued a warning and demanded that the ashtrays be removed and an assurance that the smoking ban would be observed in future. The enclosed space thus provided is not a covered passageway but clearly an indoor space. It is not even a borderline case, as may sometimes apply for tents, extensions or canopies due to their specific design. The interior is entered through the entrance door and there is a glass door on the other side of the room. In between are walls and a ceiling. It does not matter whether the doors are open or closed.

There was no response to our letter, which is why we pursued the case in court, as we had announced. By order of the Nuremberg-Fürth Regional Court dated 31 March 2022 (case no. 4 HK O 1828/22), the presiding judge of the 4th Chamber of Commerce prohibited the managing director from tolerating or allowing smoking on the premises under threat of fines of up to EUR 250,000 or imprisonment for each case

An inspection revealed that the ashtrays have since been removed. The management has yet to respond. An appeal can be lodged against the court order or it can be recognised as a final ruling.

Read more: link to the court decision