No Smoking Gun

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

In the musical 1776, John Adams objects to the removal of a particularly stirring and poetic paragraph from the Declaration of Independence. "We're a congress, not a literary society," another delegate reminds him.

If the Dallas City Council failed to create a document that might inspire residents to sacrifice their lives, fortunes and sacred honor to the cause of smoke-free restaurants, they are to be forgiven. They're not even a congress, and passages such as "on-premises consumption" and "as defined by the Texas Alcoholic Beverages Code" are not designed to stir a population to action.

Indeed, the only revolution spawned by the city ordinance that bars smoking in Dallas restaurants beginning March 1 is talk of a legal maneuver to temporarily block its implementation. Mark Maguire, owner of M Grill and Maguire's, calls the non-smoking measure "bizarre." Tracey Evers of the Greater Dallas Restaurant Association predicts fiasco when fresh air courses through dining rooms on Saturday. City council member and mayoral candidate Mary Poss dismisses the new ordinance as a "media stunt." And Javier Guiterrez, far from pledging his fortune--a $10,000 inventory of fine smokes and a cigar bar attached to his restaurant, Javier's, raking in $1 million annually--just shakes his head in anger.

Mark Andresen

No "give me Viceroy's or give me death" to rally the opposition.

Even the smoking ban's most steadfast proponent, Mayor Laura Miller, can't rouse herself to momentous eloquence when discussing the earth-shattering parchment. "It's a simple concept," she says.

In her mind, smoking bans are a fait accompli. More than 70 local and state governments in the Unites States banned smoking in specified public areas over the past decade, and the percentage of adults addicted to tobacco continues to decline. Less than 25 percent of American adults light up nowadays. Thus Miller considers restraining orders and bickering as a meager "attempt to postpone the inevitable."

Perhaps that's why the mayor and the council produced such a porous document. According to the smoking ban, restaurants must merely post a sign barring the evil weed from the premises. Responsibility for enforcement of the ban falls on the overworked members of the Environmental Health Department, who will issue fines to customers caught with a cigar or cigarette. "In order to fine patrons, you have to see them smoking," Evers points out. The city employs 27 restaurant inspectors and three supervisors to scour some 6,000 establishments. "When someone calls in, we'll respond to calls, but that's not our highest priority," admits Karen Bradford, director of the city's Environmental Health Services Department. Her team will continue to concentrate on their daily routine of investigating food-borne illness complaints and inspecting restaurants for cleanliness and code violations.

"This ordinance is unenforceable," Poss claims. "It's ludicrous because complainers will call the city and the Environmental Health Department will respond in three or four days."

Or longer. "If I'm lucky, I see the health department twice a year," says Ben Williams, owner of Ben's Half-Yard House. Bradford explains that her team may post inspectors incognito at a site if they receive a number of complaints, but that's about it. She expects little assistance from other law enforcement organizations. "The police will generally refer it [complaints] to my guys," she says. "They're not going to know all of the nuances of an establishment."

The ban extends to establishments with quarterly food sales exceeding 25 percent of revenue. The police--or even other patrons--may surmise that Bob's Steak and Chophouse or Al Biernat's or The Mansion generates more income from food than alcohol, but may not realize the status of other locations. Ben's Half-Yard house, for example, currently qualifies for smoking with a 75-25 revenue split, but that figure may shift in any given quarter.

In Delaware, 18 public health inspectors must track down hundreds of complaints. Establishments in Eugene, Oregon, report that a year after their ban went into effect, customers continue to light up a couple of times each week.

Miller dismisses such pessimism. "Enforcement is not an issue," she says. "Right now people are outraged if someone smokes next to them in a restaurant. Now people will walk in and see the no smoking sign, sit down at the table and there's no ashtray. How are they going to smoke?" She expects diners to take ownership of the ban and self-police restaurants.

Evers, however, foresees trouble: "Some will have to enforce it; some won't. Some will enforce it; some won't." As if to echo her thoughts, a waitress at one restaurant put her hands over her eyes when asked how she would respond to someone lighting up. Smokers themselves either promised defiance--"Absolutely I'll keep smoking," says Earl Burrell, sitting at a bar with a deceased cigar--or possible defiance. "As a lawyer, absolutely not," John Sherwood answers when prodded about illegal behavior, "but as a smoker, I don't know."

Even restaurateurs remain uncertain as to their response. Earlier this month, Al Biernat paced through his namesake restaurant. "I'll obey any law," he said, while expressing uncertainty when it came to directly confronting a smoker. He finally determined to build an outdoor patio to accommodate addicts, at a cost of $25,000. Judd Fruia at Pappas Bros. Steakhouse plans to construct two doors leading to a covered area alongside the restaurant. He expects his cigar sales to dwindle from $20,000 per month to a few hundred dollars--not enough to offset construction costs of $15,000. Bob Sambol, owner of Bob's Steak and Chophouse, will eventually shift his cigar inventory to his Plano restaurant. Yet he acknowledges that the ordinance's emphasis on fines for patrons rather than restaurateurs provides little incentive to enforce the measure.

"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."

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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