Council officers have said policing a smoking ban on its own street is “too dangerous”.
The tunnelled area on Carnegie’s Brae in Aberdeen, where nightclubs Unit 51 and The Tunnels are based, is included under the Scottish Government legislation which bans smoking in indoor and certain outdoor spaces.
Local authority officers have been made aware revellers have been smoking in the area outside the establishments, which although outdoors is included under the law, due to it being more than 50% solid wall.
Enforcement of the smoking ban is down to Aberdeen City Council, unless the premises operates smoking areas.
In a series of emails seen by The Evening Express, a council officer said notices could be posted in the area to inform people about the smoking ban. However, he also raised concerns that the ban was unenforceable from a council standpoint because of the threat to workers from smokers.
He said: “In regard to the enforcement of the smoking ban in Carnegie’s Brae as a whole, this presents a significant safety risk to any officer trying to enforce.
“By enforcement, I mean the discovery of an offence and the follow up of trying to serve a fixed penalty notice.
“In order to do so, it would mean getting the offender’s name and address.
“Consider also that this would be occurring in the late evening when alcohol has inevitably been taken and with an offender’s friends in proximity.
“Even if there were two officers, I believe the risk of abuse and assault is too great to contemplate this as an appropriate course of action.”
The officer added: “This is, in any case, hypothetical, as there is no officer in this service that would be willing to engage in this activity.”
An email from another council department states that “if the premises do not operate ‘smoking areas’ then they are not responsible for customers smoking in these areas and the responsibility would fall to the local authority”.
The council officer admitted the Carnegie’s Brae situation was difficult.
He said: “You may well see this as the council failing to carry out their duties, but I do not believe there is any practical way of taking enforcement without exposing officers to unnecessary risk.”
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An Aberdeen City Council spokeswoman said: “The two licensed premises are considered responsible for the area in Carnegie’s Brae that is within their control.
“There is a current dialogue with the licensee of Unit 51 regarding the parameters of their responsibilities.”
Lib Dem Councillor Martin Greig said the ban should be “respected and enforced” saying: “I understand the reasons for them not wishing to enforce it in that area.
“However, it doesn’t seem fair that there appears a way of getting round the legislation.”
Meanwhile, Aberdeen City Council co-leader Douglas Lumsden said: “It should be enforced. If they feel it’s too dangerous then they should be able to get police help to enforce the ban.”
Both Unit 51 and The Tunnels have been contacted for comment.
Police Scotland did not respond to a request for comment.