Wellington bar owners say they're in the midst of a health industry crackdown on outdoor smoking areas.

Members of the city’s hospitality industry say at least 40 letters have been dished out from inspectors this year to inform owners their smoking areas are not up to scratch.

They are spaces that were designed to fit with new legislation in 2004, which prohibits smoking in an indoor area at a licensed premise.

The legislation has remained but Ministry of Health enforcement guidelines changed when their open area calculator was thrown out in a 2014 High Court ruling involving SkyCity.

The Ministry of Health has cited the infinite number of different types of smoking spaces as the reason for there being no hard-fast rules in compliance guidelines.

Hospitality New Zealand has called for clearer definitions in enforcement guidelines and an official calculation to support them.

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Wellington’s Five Stags bar has recently had its smoking area deemed non-compliant, despite it having the same layout for years.

Owner Matt McLaughlin said the recent crackdown by inspectors was unfair.

“We spent thousands of dollars on outside areas for people to be comfortable and warm with a bit of a roof over their head while still outside.

“Now we turn around and we are told after nine years of being compliant that we are not compliant, yet the rules haven’t supposedly been changed.”

These are the guidelines in question as listed on the Ministry of Health website.

Mr McLaughlin said phrases like ‘in all likelihood it will be an open area’ and ‘may not/probably will not meet the open area definition’ are vague.

However, he said the additional criteria to the four guidelines was the most confusing.

Tobacco Control Programme manager Jane Chambers said inspectors measured a space to assess what percent of it was open to support their decision.

“Normally a space that is under 25 per cent open would be deemed an internal area and anything over 35 per cent open would be open.

Ms Chambers said each space had to be considered individually. 

“There are an infinite number of different types of spaces.”

In Mr McLaughlin’s compliance report it was stated that the outdoor area’s ratio was measured, but that no benchmark was used.

Mr McLaughlin said if there was a specific ratio listed in the guidelines, bar owners would know what the expectation was.

“The issue that is so up in the air is that we don’t know what the actual rules are.

“If we can fit into the areas that we’ve already got, so we are not spending thousands and thousands of dollars or pushing people out onto the street to have a cigarette, then I think that would be wise.”

Last year the Ministry of Health suggested a 35 per cent open area to 65 per cent closed area ratio would be appropriate for smoking spaces at bars.

The hospitality industry replied to the idea in a submission that suggested a 20 per cent to 80 per cent ratio would be a good compromise.

Ms Chambers said the ministry had taken that on board.

Yet a specific ratio is still not listed as either a rule or a guideline.

Hospitality New Zealand Wellington president Jeremy Smith said he wanted the ministry to come up with a clearer set of guidelines and to include a benchmark calculation of what is a compliant smoking area.

“We don’t want the situation where outdoor areas are forced to close because the way the act is implemented is unfair and unreasonable.”

Mr Smith said getting rid of outdoor smoking areas in bars is not a financially viable alternative for owners.

Lambton Ward councillor Nicola Young said she empathised with bar owners who she said were in a difficult position.

“I feel the bar owners in Wellington are being sandwiched between the people who are enforcing the smoke free rules... and then they’re also having the police on the other side.”

Ms Young said the crackdown threatened the city’s lively nightlife.

“The CBD is one of our treasures.”