No Smoking Gun

The new smoking ban will work--if no one lights up

"If someone wants to light up and no one objects, I'm going to let them," he says. "Smoke away, babe."

The health department promised to investigate--possibly--after "continuous" complaints against a location. "All we're required to do is post a sign," says Ernie Quilantan of Primo's. "As long as we don't put an ashtray out, we won't get in trouble. The health department is not going to come out at 10 p.m. Where does that make sense?" Miller acknowledges the city's resource deficit. A budget sinking deep in the red makes overtime or additional staff to enforce the code impossible.

"Since they can't enforce it, people can smoke," concludes Eddie Villa, a manager at Javier's. "We can't have ashtrays out, but have a drink and use it as an ashtray. People can call and complain and the health department will be out in six months."

Mark Andresen

Despite the references to ashtrays, the devices are not actually addressed in the ordinance, and some squabbling by restaurant owners forced the health department to back down from its initial contention that the presence of ashtrays would justify a visit. "After talking with the restaurants, we agree that if someone smokes, they have a need to put it out somewhere," Bradford says, bowing to the inevitable. The ordinance does, however, require bars to establish a non-smoking area. It also bans burning tobacco from an unspecified zone around cash registers.

Enforcement of this requirement remains murky, as well. "We'll rely on the owner of the bar to identify the area," Bradford explains, meaning essentially that bars may allow patrons to smoke anywhere outside of bathrooms.

"There's been a lot of confusion," Quilantan says. "Even the city attorney and health department were confused about how to enforce it."

In fact, listening to bar and restaurant owners discuss the ordinance over the past few weeks amounted only to a catalog of uncertainty. "I've heard all sorts of different things," says Jim Severson of Sevy's Grill, whose establishment may or may not reside in the Park Cities, an area unaffected by the ordinance. Some bar owners worried certificates of occupancy listing their businesses as restaurants might affect their smoking status. Bradford, however, will be satisfied with evidence that food sales do not exceed 25 percent of revenue.

At the very least, bar owners and restaurateurs mumble that a total ban on smoking would clarify the issue. Establishments bordering smoking areas--Highland Park, the suburbs, Oklahoma--are particularly concerned. "If it's statewide, it's one thing," Biernat says of the ban. His restaurant pays more than $52,000 in liquor sales taxes in an average month, and he foresees disaster when patrons can scurry "a quarter mile down the road to Highland Park."

Even neighborhood activist Avi Adelman doubts the city's ability to distinguish a smoking establishment from a smoke-free place under the new regulations. "The city doesn't know how to audit a bar if their life depended on it," he says.

Miller has little patience for such commotion. She settled for an ordinance aimed at restaurants alone after recognizing council members would not support anything more stringent. "They are not confused," she says of restaurant and bar owners. "Their legal tactic is that it's too confusing, unenforceable, full of loopholes. It's very simple. You walk into a restaurant, and you can't smoke. That's the ordinance."

This issue is, indeed, a simple one. A bar may be a bar or restaurant, depending on which quarter inspectors visit the establishment, and vice versa. Restaurants need only post a sign notifying patrons of the ban, but are not held accountable for the actions of patrons. They may position ashtrays at the bar and continue to operate as normal. Patrons run the risk of a fine, but only if a health department inspector--one of 30 in the city--catches them in the act. The upcoming election could reverse the ban, anyway, as it did in Carrollton, Plano, Arlington and other cities.

"I don't even know what we're in a position to do at this point," says Greg Kalina, general manager of Bamboo Bamboo. "The more you trumpet the right to have smoking, the more you look bad to non-smokers. It's a no-win situation."

And that about sums it up.

Except for Fruia, who looks at the cavernous smoke-free section of his restaurant and says, "I just hit a pothole today. Why wasn't that taken care of?"

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