June 26, 2007

Forecast: smoky: As the citywide smoking ban looms, bar owners get ready for … whatever

BY MEGHAN WIGGS, RYAN REAL & ERIN CLEPHASPhoto by Ben SchneiderIt is almost the 11th hour. A judge is expected to rule soon on whether Louisville Metro government can implement the citywide smoking ban (sans the single, contested exception of Churchill Downs) that is scheduled to take effect on July 1.Passed in October to supersede a prior watered down measure, the new ban prompted a lawsuit by the Metro Louisville Hospitality Coalition and bingo hall operators, who assert that a double standard is at play in favor of the fabled racetrack. Jefferson Circuit Court Judge Denise Clayton heard both sides Monday, and she is considering whether to issue an injunction that would put the ban on hold while the lawsuit is sorted out. She is expected to decide by the end of the week.Without an injunction, there is no smoking in Louisville come Sunday.Or at least, that is the plan. An informal survey of bar owners in the city turned up a range of views about the ban, and the likelihood of voluntary compliance.On the defiant side of that continuum rests David Hoffmann, owner of Old Hickory Inn in Germantown. Asked what he plans to do after the smoking ban goes into effect, he replied simply: “Keep smoking.”The bar sold T-shirts earlier this year that proclaim: “After July 1, you can smoke at Churchill Downs … AND OLD HICKORY INN.” Hoffmann said he has already sold out of the shirts.Then he pointed to an LED display above the bar and said, “Look up there if you really want to see how I feel about it.” The sign reads: “The Mayor and Metro Council can kiss my fuckin’ ass.”You might wonder about the wisdom of being so obviously provocative. Hoffmann seems unconcerned.“I’ll get in trouble,” he said. “I guarantee it.“What I’m thinking of doing is,” he added, pulling a cigarette out of a pack as he stood up from his poker game, “if you want to smoke, you buy an ashtray and we’ll use that money to fight the fines.”The mere presence of ashtrays in an establishment, however, is considered a violation of the ordinance. But Bill Patteson, a spokesman for the County Attorney’s office, said no additional fines would be leveled against a business that raises money to subsidize intentional law-breaking. The same fines would apply, regardless of who “owns” the ashtrays.While they don’t agree with the ban for various reasons, other bar representatives seemed resigned to making changes. Morgan “Beanie” Overstreet, who bartends at the Mag Bar, offered no opinion on smoking in the bar, but said he disagrees “with Photo by Ben Schneider chipping away of personal rights.”Overstreet said the Mag Bar will abide by the ban. “We have such a good relationship with the police. We’ve always been law-abiding, and we will stay law-abiding,” he said.Yet Overstreet does think the ban will hinder business. Smoking and drinking are typically combined in a social setting, he noted, and he fears more people will stay home to smoke.Curtis Elder, who bartends at the Spring Street Bar & Grill, shares that view. “It’s going to affect everyone, but everyone must play by the same rules,” Elder said. He called the Churchill Downs exemption “discrimination,” and said any blanket law should include the entire county. The smoking ban debate stretches back to 2003, when the group Smoke Free Louisville began pushing for a comprehensive smoking ban just as Lexington was passing one of its own. To combat a possible Metro ban, a group of about 130 bar and restaurant owners formed the Metro Louisville Hospitality Coalition. Metro Council passed a partial ban in 2005, prohibiting smoking in all public places except bars, taverns and restaurants that derived at least 25 percent of gross revenue from alcohol, all while exempting Churchill Downs and tobacco manufacturing plants. While those bar owners now await a decision on an injunction, some, such as Tommy Clemons, have come to grips with the law.Clemons owns Highlands Tap Room, and he is making post-ban plans.“I’m gonna close down that Sunday before and clean everything out, replace the carpets and just get everything cleaned up,” he said. So what happens if the Metro Health Department catches someone smoking in a bar or restaurant?“The ordinance is going to be largely self-enforcing anyway,” Patteson said. “Bar owners will have to make their customers aware of the ordinance, and if they don’t leave or put out their cigarettes, then that becomes a trespassing issue.”The standard procedure Metro Council established to deal with someone smoking inside a business calls for an employee to first ask the person to extinguish the cigarette. If the person refuses, the next step calls for the employee to ask the person to leave. If the offender refuses, that would be followed by a call to MetroCall (311) to report trespassing.Patteson noted that both individuals and establishments stand to be fined. The ordinance calls for fines of $50 to $100 for a first offense; $150 to $250 for a second; and $350 to $500 for third and subsequent offenses. Enforcement officers have discretion on the fine amounts, he said, based on degrees of cooperation.Oddly, the two owners of Gerstle’s Place in St. Matthews have opposing views on the ban. Co-owner Mike Stephenson favors it, partly because of respiratory problems that keep him from working on smoky nights at the bar he’s owned for 10 years. Stephenson believes business may improve, and he has already considered adding smoke-free nights.Stephenson’s business partner, Alex Moore, is part of the group fighting the ban. But they don’t argue about it. Stephenson merely thinks it’s time Louisville falls in line with other cities nationwide. Moore thinks government should not impose such policies on businesses.“It’s a business-owner’s right,” Moore said. “Smoking is a legal activity, and especially with bars, adults can make their own decisions.”Like other bar owners who oppose the ban, Moore said numerous Lexington bars closed after the city’s April 2004 smoking ban. But Bluegrass Hospitality Association president Fran Taylor said such worries are unfounded.“There really has been no negative economic impact,” Taylor said. “The reality is that business did not dry up.” She pointed to a University of Kentucky study that found that restaurant employment increased by 3 percent and indoor air quality improved by 91 percent. Taylor said Lexington has seen a proliferation of outdoor cafés, and after three years, she deems the situation “win-win.” (The Louisville ban will allow outdoor smoking at venues, with some qualifications.) But Gerstle’s Moore is less confident about the economic consequences post-July 1. “We’ll have to live with the regulations that are enacted,” he said. “I guess we’ll see what happens.” Contact the writers at citystrobe@leoweekly.com