The smoking ban does not apply to e-cigarettes; Innkeeper provoked prohibition proceedings “successfully”

E-cigarettes not banned in North Rhine-Westphalia Restaurants

Innkeepers are after North Rhine Westphalia Non smoking protection law (NiSchG NRW) not required, so-called use. To prevent e-cigarettes in their establishments. This has the 4. Determined Senate of the Higher Administrative Court for the Land North Rhine-Westphalia with today's judgment, confirming a decision of the Administrative Court of Cologne.

The applicant operates a restaurant in Cologne and there tolerates the use of e-cigarettes by his guests. The city of Cologne threatened him to order measures, he should not effectively prevent the their opinion prohibited by the NiSchG NRW use of e-cigarettes in his restaurant. The plaintiff then sought a judicial declaration, that the use of an e-cigarette from NiSchG NRW was not detected. At E-Cigarettes arises due to lack of combustion process no smoke; the ingredients would rather just evaporates. The inclusion of the e-cigarette in the smoking ban was also unconstitutional.

The Administrative Court upheld the action. The judgment delivered today, the Higher Administrative Court rejected the appeal of the City of Cologne. In support, the Chairman gave at the hearing of substantially: The NiSchG NRW contains no express provisions on the e-cigarette. Under § 3 Abs. 1 Sentence 1 NiSchG NRW is “smoking” prohibited in certain facilities, so also in restaurants. Among smoking is by universal and professional parlance smoke inhalation to understand, the arises during the combustion of tobacco. When using an e-cigarette but can not find a combustion process, but an evaporation process is taking. In addition, it was stated that the vaporized liquid (Liquid) not a tobacco product in the legal sense, because it was not intended to be smoked. The same applies to the nicotine contained in many liquids. With the genesis of NiSchG NRW is an application of the smoking ban on e-cigarettes can not be justified also. In adopting NiSchG NRW in 2007 the legislator had not had the e-cigarette in sight. With the amendment of the Act in 2012 although he had had the intention, to treat the e-cigarette like conventional cigarettes. The wording of the prohibition norm but he had not changed accordingly. But this would have been necessary, to the addressees of the norm to make its scope sufficiently clear. In addition, the NiSchG serve solely to protect against hazards of passive smoking. Possible risk of e-cigarettes are thus in any case neither identical nor similar. The danger of an e-cigarette for “Passivdampfer” had not been adequately researched, let alone demonstrated. The legislature should assume, that health risks are not only exclude. If he in 2012 had the intention, include the e-cigarette for reasons of risk prevention in the smoking ban, he had these differences at least not sufficiently considered.

The Senate has not approved the revision. In contrast, leave to appeal is possible, over which the Federal Administrative Court.

CERTIFICATE: 4 A 775/14 (I. Instance: VG in Cologne 7 K 4612/13)

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