Landlady from the Munich area sentenced to a fine of 2,000 euros

19.12.2023 Because a landlady remained stubborn after Pro Rauchfrei e.V. had obtained a court order prohibiting her from tolerating smoking in the fully enclosed tent extension of her restaurant, she was sentenced in no uncertain terms to a substantial fine of EUR 2,000, or alternatively imprisonment, by the Regional Court of Munich I (LG Munich I, decision of 15.12.2023, Ref. 3 HK O 2358/23).
The course of events

At the beginning of the year, Pro Rauchfrei learned that guests were smoking in the tent extension connected to the entrance of the restaurant and enclosed on all sides, contrary to the legal requirements. The operator did not respond to the warning. Pro Rauchfrei then obtained a court order prohibiting smoking in the area under threat of a fine and imprisonment.

However, the operator refused to comply and even a telephone call in which she was informed of the consequences of further legal action had no effect. Her objection to the injunction was rejected after an oral hearing.

Landlady ignores court order

A follow-up inspection revealed that the operator had ignored the court order and continued to allow smoking. Pro Rauchfrei e.V. finally applied to the Munich I Regional Court to impose a fine for breach of the court order. The operator defended herself with gaps in her memory.

Court finds clear words

In the order imposing the fine, which is available to Pro Rauchfrei, the court finds clear words about the landlady’s behavior:

The debtor did not fulfil this secondary burden of proof in any way. It has not provided any information on any measures it has taken to prevent a breach of the order. Her submission that she can no longer remember individual events cannot exonerate her.

The measures that the debtor would have been obliged to take include, for example, removing ashtrays from the tables or issuing corresponding instructions to its employees. Such instructions must also be monitored. The debtor can therefore also not rely on disputing the creditor’s submission that no ashtrays can be recognised in the pictures (which the Chamber considers to be refuted by the totality of the photographs submitted). Necessary and reasonable measures also include, for example, the installation of signs indicating the applicable smoking ban. Such a measure has also neither been presented nor can any implementation be recognised on the images submitted.

In the present case, it must be seen in the debtor’s favour that this is the first infringement, albeit a short time after service of the order. It must be assumed in the debtor’s favour that she did not take any measures to prevent a repeat infringement. The violated protected interest of public health, which is of great importance, must also be taken into account.

Weighing up these aspects, the Chamber considered the imposition of a fine in the lower range to be just sufficient to encourage the debtor to comply with the law in future.

The court has thus severely penalised ignoring the order. We can only hope that the operator will now comply with the applicable legal situation.