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NO SMOKING, new law says 

But there’s a large loophole.

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State Rep. Jay Bradford of Pine Bluff was a co-sponsor of the bill that became Act 8, the “Clean Indoor Air Act,” which restricts smoking statewide. He says the law, which took effect July 21, is “a giant leap as far as protecting the health of Arkansans is concerned.” Dr. Jennifer Dillaha, director of the state Health Division’s anti-tobacco programs, says, “This is one of the most important public health laws we’ve passed in my generation. It will have immediate health benefits.”

Yet both Bradford and Dillaha are dissatisfied with one provision of the law, and profess ignorance of how it got there.

The law essentially bans smoking in the workplace, including bars and restaurants, traditional havens for smokers. But it provides a way for bars and restaurants to get around the prohibition. An establishment that refuses admission to anyone under 21, whether customer or employee, can allow smoking. Many places in Little Rock — and elsewhere, presumably — are taking the over-21 route, including such familiar names as Pizza D’ Action, Legends Sports Bar, Midtown Billiards, White Water Tavern, Sports Page and the Electric Cowboy. Other well-known establishments such as Cajun’s Wharf and Loca Luna consider themselves family restaurants as well as full-service bars, and thus unable or unwilling to ban customers under 21. Owners of these establishments are understandably unhappy that some of their competitors can continue to allow smoking while they can’t, though they promise compliance with the law.

The terms “bar” and “restaurant” can be misleading. The state mixed-drink law requires that every establishment with a public mixed-drink permit sell food too, so that every public bar is also a restaurant, to some degree. (Private clubs are not required to sell food, but they will be covered by the new smoking law whether they sell food or not.) Act 8 defines a restaurant as a place that sells food, and a bar as an establishment in which the serving of food is only “incidental” to the serving of alcoholic beverages. The law makes no distinction between the two as far as smoking is concerned. Either bar or restaurant, public or private, can go for the over-21 exemption that allows smoking. It’s management’s choice, a choice presumably made after calculating whether banning smoking or banning kids would be more profitable, or less unprofitable. As the name suggests, Pizza D’ Action is known for its pizza, and has had families with children among its clientele in the past. The Sports Page is locally famous for its burgers.

The city of Fayetteville adopted an ordinance banning smoking in workplaces, including bars and restaurants, two years ago, becoming the first city in Arkansas to do so. Since then, Pine Bluff and Fairfield Bay have adopted similar ordinances. Like the new state law, the Fayetteville ordinance defines a bar as a place where the selling of food is “incidental,” but, unlike the state law, the Fayetteville ordinance makes a distinction between bars and restaurants — only bars can allow smoking. So the big question becomes, what does “incidental” mean? For a time, the Fayetteville police used a rule that if a place derived less than 30 percent of its revenue from the sale of food, it qualified as a bar and thus could permit smoking. But establishments wanting to move from non-smoking to smoking, or to keep a competitor from moving, found the 30 percent rule unsatisfactory and hard to enforce. They went back to the City Council, which adopted a new rule saying that bars could serve only pretzels, peanuts, potato chips and the like — nothing that had to be heated in a kitchen — if they wanted to permit smoking. This too failed to satisfy all the affected establishments. Nine of them sued the city. “The court will have to tell us what ‘incidental’ means,” Mayor Dan Coody of Fayetteville said in an interview.

Other than the disagreement over “incidental,” the Fayetteville ordinance has worked beautifully, Coody said. The week before the ordinance took effect and the week after were the hardest, he said, but since then, the law has been not only complied with, but appreciated by Fayetteville residents. “When they go to other cities, they feel like they’re back in the Middle Ages.”

The Center for Business and Economic Research at the University of Arkansas studied the impact of the Fayetteville smoking ban, using tax collections and other measurements, and concluded that “Fayetteville’s economy continued to thrive” after the ordinance took effect on March 11, 2004. “Employment increased, and 69 percent of Fayetteville restaurants reported higher sales after the smoke-free law went into effect,” the study said. Kathy Deck, associate director of the CBER, cautioned that the study covered the aggregate level only. It doesn’t say that no individual establishment suffered because of the ordinance. And it’s the individual establishment that owners and managers tend to be concerned about.

Mark Abernathy, owner of Loca Luna and Bene Vita in Little Rock, doesn’t like the idea of a state-ordered smoking ban in general, and he particularly dislikes a law that he says discriminates against “restaurants” in favor of “bars.” Abernathy will get some relief because both of his restaurants have outdoor dining areas, and the no-smoking law doesn’t apply outdoors. But patios and decks aren’t open year-round, and they have limited space.

“I think restaurants have done a good job of segregating smokers,” Abernathy said. “In 10 years, I know of only three instances where customers complained to me about smoking interfering with their dining at Loca Luna. … It’s not a personal issue with me. I don’t smoke.”

Despite his own distaste for the law, Abernathy doesn’t expect widespread resistance to it. But it will cost him money, he says. “We will lose bar business because of it. People can go to bars and smoke.”

Mary Beth Ringgold, owner of Cajun’s Wharf, said that after July 21, she’d allow smoking only on the deck. The dining area inside has been non-smoking for some time, she said, but smoking was allowed in the bar area. “We’d hoped for a way to have a segregated arrangement, but they won’t let us do that.” She thinks the ban will affect her business adversely. “The young people who come in about 10 o’clock are still a big smoking crowd.”

“There should have been a level playing field,” Ringgold said. “If the idea was to protect workers, the law should apply to everybody.”

Larry Rogers of Dallas, vice president for operations of the Flying Saucer chain, said some time ago that it was possible the Flying Saucer in the River Market area would follow the no-one-under-21 path. At the time of the interview, the matter was still being studied, he said. Flying Saucer has said all along that it had no objection to a no-smoking law that applied to everybody, Rogers said. “But this law allows bars to remain smoking while restaurants can’t. That’s a very negative position for us. We sell a substantial amount of food. We do a lot of family business during the day and on weekends. We’re one of the busiest places in downtown Little Rock.” If the restaurant denies admission to anyone under 21, “It won’t put us out of business,” Rogers said, but “It’ll hurt the people that want to eat with us.” (At noon on a weekday in the middle of last week, the Saucer had posted no signs, neither “No smoking” nor “No one under 21.” One of the customers was a young boy — with his mother, apparently. No one was smoking at the time, but ash trays were still on the tables. A waitress said an over-21 policy was still planned.)

The Flying Saucer has big plate-glass windows in front that are sometimes opened, but that’s not enough to be classified as “outdoors.” Rogers said he never thought it would be. The Flying Saucer chain has restaurants in Texas, Arkansas, Tennessee, North Carolina and South Carolina — a total of 11 restaurants in all. A couple of them are non-smoking, because of local or state laws. Flying Saucer’s home state, Texas, does not have a statewide smoking law, but some Texas cities have adopted no-smoking ordinances.

Act 8 was approved at a special legislative session earlier this year. It was an administration bill. At previous sessions, Gov. Mike Huckabee had been cool toward no-smoking bills, most of them sponsored by Bradford, but he changed his position. Sen. Tracy Steele was the lead sponsor of the bill — at Huckabee’s request, Steele said. In an earlier legislative session, Steele had sponsored a bill to prohibit smoking wherever children are present. It didn’t pass.

Bradford was one of a number of co-sponsors of Act 8. He said he would have preferred the bill without the exemption for places that don’t admit anyone under 21. “I understand the governor and the [Arkansas] Hospitality Association agreed to that. I think the bill should have applied to bars too. But I supported it even with that provision because it’s a vast improvement over what we have now.”

Dr. Jennifer Dillaha, director of the state Health Division’s anti-tobacco programs, said she would have preferred “a full ban that would protect everyone.” She didn’t know why the over-21 exemption was in the bill. “I was not involved in the negotiations over the bill.”

(The law also contains a specific exemption for “Designated smoking areas on the gaming floor of any franchisee of the Arkansas Racing Commission.” There are two franchisees — Oaklawn Park, the thoroughbred race track in Hot Springs, and Southland Greyhound Park in West Memphis — and they are usually successful in getting what they want from the legislature. Especially Oaklawn.)

The Health Division tobacco prevention and cessation program, called “Stamp Out Smoking,” or SOS, has four goals — to prevent the initiation of tobacco use, to promote quitting, to eliminate the exposure of non-smokers to second-hand smoke, and to eliminate the disparities resulting from the tobacco companies’ targeting of certain demographic groups. During a legislative committee meeting on Act 8, Dillaha referred to “Stamp Out Smoking.” Steele quickly interjected that it was not his intention to stamp out smoking, merely to protect non-smokers from second-hand smoke.

Steele said in an interview that the over-21 exemption was included in the law because “We were trying to give leeway to people that consider themselves adult entertainment — clubs and such.”

Some establishments put their new smoking policies into effect July 21, either banning smoking or banning under-21s. Others took a more casual attitude toward the law, unsurprisingly. The Health Division has said repeatedly that people will be given time to adjust, and that no one will be fined who hasn’t first received repeated warnings. Beyond that, enforcement of the law is up to local law enforcement agencies for the moment, and most police departments won’t give a high priority to collaring smokers and their enablers. But the state Board of Health has adopted new regulations for enforcement of the law. Those regulations will take effect no earlier than August 7. After that, the Health Division itself will become primarily responsible for enforcement.

There will be no flying squad of anti-smoking agents. The Division will rely primarily on complaints from the public. Complaints can be filed, and additional information obtained, at the Department of Health and Human Services toll-free number (1-800-235-0002) or a Web site (www.ARCleanAir.com). Complaint forms may be obtained from local DHHS offices also.

Before filing a formal complaint, the person offended by unauthorized smoking should go to the person in charge of the establishment — owner, manager or whatever. Under the law, the person in charge has the responsibility of enforcing the law in his or her place of business and is subject to a fine if he or she doesn’t. A smoker who refuses to obey the rules can be fined too. Violators may be fined by the Health Division, up to a maximum of $1,000 per violation. If prosecuted in criminal courts, they may be fined from $100 to $500 per violation.

Dillaha said last week that she hadn’t heard of any arrests or fines since the law took effect July 21.

Some establishments aren’t worried about the new law at all. The Afterthought, a popular bar in Hillcrest, went no-smoking of its own volition several months ago, even though it already limited admission to people over 21, and even though some of its regular customers were heavy smokers. The bar and its next-door restaurant, Vieux Carre, reopened April 28 after extensive remodeling that included replacing carpet, ceiling tiles, and most of the furniture — anything that had absorbed cigarette smoke, according to General Manager David Bennett. That done, Bennett was not of a mind to let smoking resume. Bar revenue declined for the first six weeks after reopening smoke-free, he said, but after that, the revenue recovered, and surpassed its previous level.

A manager of Acadia, an up-scale restaurant, said the restaurant would comply with the new law simply by following the policy that’s been in effect since Acadia opened seven years ago — no smoking inside, smoking permitted on the deck.

A number of states and municipalities have adopted no-smoking laws in recent years, some more strict than Arkansas’s. Anti-smokers already are complaining about the Arkansas law’s allowing smokers to cluster just outside the front door, forcing non-smokers to walk through a noxious cloud to get inside. Some states, including Florida, don’t allow smoking on-premises. Fayetteville considered imposing a 25-foot buffer zone, but abandoned the idea after it was pointed out there were bars and restaurants in town that were next door to each other, and getting 25 feet from both would require standing in the street. Non-smokers considered that a reasonable requirement, but the City Council felt otherwise.

Studies of laws banning smoking in bars and restaurants in places like New York City and California have found no adverse economic impact overall. Dr. Dillaha of the Arkansas Health Division says that Arkansas restaurateurs who criticize Act 8 do so because of “an underlying belief that not allowing smoking in bars and restaurants has hurt business. There’s no evidence that’s ever happened. In many places, it’s been good for business.”

That second-hand smoke is dangerous has been known for years. Coincidentally, not long after Act 8 was approved, U.S. Surgeon General Richard H. Carmona issued a report saying the danger was even greater than previously thought: “Non-smokers exposed to second-hand smoke at home or work increase their risk of developing heart disease by 25 to 30 percent and lung cancer by 20 to 30 percent … Nearly half of all non-smoking Americans are still regularly exposed to secondhand smoke.” And according to Dillaha, the smoking rate in Arkansas is higher than the national rate.

Given statistics like that, some say that any action against smoking is justified. Yet there are those who agree with Mary Beth Ringgold that if the idea of a non-smoking law is to protect workers, then the law should apply equally to restaurants and bars. Are the bar workers less important than the restaurant workers? And protecting workers is the only nonrebuttable argument for a law like Act 8. Customers who don’t like smoke, and are endangered by it, can go to some other establishment. They can stay home. Or they can pressure management to disallow smoking. If enough people say forcefully that they won’t come back to a bar or restaurant unless smoking is banned, smoking will be banned. Workers often don’t have such a choice. There’s always someone who needs a job so badly that he or she will work for almost any wages under almost any conditions. That is why we have wage and hour laws, occupational safety and health laws, child labor laws.

Will people comply with the Arkansas law, as far as it goes? Most likely. It’ll take awhile, but only about 20 percent of Arkansans still smoke, and the 80 percent majority includes militant anti-smokers. Most smoking violations will be reported, and only a few fines will be needed to convince management that the risks of violating the law outweigh the rewards. That seems to be the way it has worked elsewhere, with a few exceptions. A former Little Rocker now living in the San Francisco area says there are bars that seem to follow a “majority-rules” policy. That is, if no one objects to customers and/or employees smoking, then smoking is allowed. Smokers learn where these smoker-friendly bars are, and frequent them. Non-smokers learn and stay away. Something similar might happen at Little Rock, with the law generally being observed except in all-night clubs and other places catering to a young crowd that’s not yet frightened enough to quit smoking, and too frightened of peer pressure to protest it. But that won’t be possible in smaller towns, where everybody knows what’s going on everywhere.

We queried a couple of smoking colleagues. One said she wanted to quit smoking anyway, and the new law might help her do that. Another, who smokes and drinks in the bar of a restaurant and will no longer be allowed to, said he didn’t like the law, and thought it should be possible to segregate a smoking area from a non-smoking area. On reflection, he said the new law might force him to go home, where he’d drink less. “I guess that’s an upside,” he said.

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