Up In Smoke?
The Fine Print That Could Kill the Smoking Ban
For a club owner, Dave Meinert is unusually eager to ban smoking. Long before this week's announcement that an initiative to outlaw indoor smoking will almost certainly appear on the November ballot, Meinert was preparing to enact his own early smoking ban inside the Mirabeau Room, the club he owns in Lower Queen Anne. He figured going smoke-free would increase business, since smoking bans in New York and San Francisco have led to increased business at bars and clubs in those two cities.
But Meinert also wanted smokers who frequent the Mirabeau Room to be able to duck outside and light up, so he began building a deck out back in anticipation of banning smoking inside his club once the outdoor deck was complete. Then Meinert read the fine print in the proposed statewide smoking ban, Initiative 901, which is backed by health organizations including the American Cancer Society and the American Lung Association, and by politicians such as Mayor Greg Nickels and King County Executive Ron Sims.
The fine print of Initiative 901 includes a clause that would make the measure not just a ban on indoor smoking, but also a ban on outdoor smoking—if the outdoor space in question lies within 25 feet of any door, window, or air vent that leads into a protected public space, such as a bar, club, restaurant, office building, or vehicle used by the general public. That means Meinert's new deck, which will have a depth of exactly 25 feet, could be useless as a smoking porch if voters approve the ban. Ditto for the covered area outside of the Mirabeau Room's front entrance on Queen Anne Avenue North. In fact, given the density of bars, restaurants, and other businesses on the Mirabeau Room's block, it seems unlikely a smoker could duck out of the Mirabeau Room and find anyplace nearby that wasn't within 25 feet of some entrance, exit, window, or vent leading into another public space—a scenario that had Meinert fuming.
"This is the politics of fanaticism," Meinert said recently, before blasting off an e-mail alerting other bar and club owners to the initiative's language. "I'm against smoking, but I'm not a fanatic."
Advocates of the Washington ban admit the proposed 25-foot rule is unusual, at least as far as statewide bans go. Seven states currently outlaw smoking in bars, restaurants, and other public places: California, Delaware, New York, Connecticut, Maine, Massachusetts, and Rhode Island. But none of these states has language in its ban creating smoke-free zones that extend beyond the walls of individual businesses. Anti-smoking advocates point out that there are hundreds of smaller cities around the country that do ban smoking outside of businesses and public spaces, with some of these cities banning cigarette smoke for as much as 50 feet beyond air intakes. But none of those cities is as large and filled with bars and clubs as Seattle. In fact, big cities such as New York City and San Francisco make no effort to ban smoking beyond the walls of their densely packed businesses.
Meinert is promising to rally Seattle bar and club owners—and their supporters—against the unreasonableness of the 25-foot clause in the proposed Washington ban, and that could mean trouble for an initiative that otherwise is believed to have broad public approval.
"It would have been good to have had this conversation before we'd written the law," admitted Peter McCollum, spokesman for Healthy Indoor Air for All Washington, the group that is leading the charge on the initiative, as he looked over a copy of Meinert's e-mail last week.
But it's too late to change the proposed law now. If Initiative 901 passes, the 25-foot rule (with its punishment of $100 fines for violators) would have to be amended through another initiative in the future.
Anti-smoking advocates have waited years to put the current smoking ban before the voters, having failed at several past attempts, and as a consequence they're loath to see their recent investment in paid signature gatherers and a more organized campaign derailed by one clause in a mostly boilerplate law.
So McCollum went quickly into damage-control mode after receiving word of Meinert's outrage. He said the key part of the 25-foot clause is that it allows for an exemption for business owners who are able to convince the director of their local public health department that 25 feet is unreasonable in their particular cases, and that "the public health and safety will be adequately protected by a lesser distance."
"I don't know what else to say to Mr. Meinert, except that you can stand one foot outside of the entrance to a bar or restaurant if you can prove that you're not putting the people inside at risk," McCollum said.
But in Seattle, where police and other authorities have been accused of reaching for obscure legal language when they want to lean on a "problem" club or bar, there are fears that allowing the head of the health department to decide whether or not to enforce the 25-foot rule would just give authorities another weapon to wield capriciously against local clubs and bars.
"If there is a club that is not in the city's favor, the police will park across the street from it and write tickets to people who are smoking within 25 feet, whereas some tony club in Belltown will not get that attention," said David Osgood, a civil rights attorney who has frequently challenged the City of Seattle on uneven enforcement of laws regarding clubs and bars.
The model for the trouble-causing 25-foot clause in Initiative 901, it turns out, was the Pierce County smoking ban, which was in effect only briefly last year before it was overturned on a technicality by the Washington State Supreme Court.
How did that ban's 25-foot clause fare? Joby Williams, spokeswoman for the Tacoma-Pierce County Health Department, said the department did have to do some "problem solving" around Pierce County's 25-foot rule when it appeared impractical to implement on a particular block, but that no one was ever fined and no formal requests for exemptions were ever filed. She also said the issue of outdoor decks never came up, but then again, she noted, the Pierce County ban was in effect mostly during colder months. "That's not really outdoor dining time," she said. ■