The Common Law

Austin Smoking Ordinance – is the smoker or bar owner at fault?

I'm a smoker. One of the bars that I like to hang out in still allows people to smoke even though the smoking ordinance is now in effect. Can I get in trouble for smoking in the bar, or does the ordinance only punish the bar owner?

Whether you love it or hate it, the new Austin Smoking Ordinance took effect on Sept. 1, 2005. And while most people know that the smoking ordinance is in place, many still have lots of questions about exactly what the ordinance says. One of the most common questions is, who will the smoking ordinance be enforced against – the smoker or the bar that permits it?

The express language of the smoking ordinance suggests that both the smoker and the bar could be responsible for a violation of the ordinance. For example, section 10-6-2 (a) of the ordinance states: "a person commits an offense if the person smokes in a public place." Alternatively, section 10-6-2 (e) states that "the owner or operator of a public place commits an offense if the person fails to take necessary steps to prevent or stop another person from smoking in an enclosed area in a public place."

From a practical standpoint, however, current enforcement of the smoking ordinance is focused on the bar owners and operators rather than the individual smokers. For example, the city of Austin's "Frequently Asked Questions" regarding the smoking ordinance states that the owner or person in charge of the public place will be the one responsible for a violation.

Moreover, the city suggests that anyone who wants to complain about a violation of the smoking ordinance contact the Environmental and Consumer Health Unit at 972-5600. Assuming violations of the smoking ordinance are reported to the ECHU, than there is no instantaneous enforcement of the smoking ordinance. Under those circumstances it is the bar owner or operator, rather than the smoker, who will ultimately be the person fined for the smoking ordinance violation.

Read next week's column for more issues regarding the smoking ordinance.

Please submit column suggestions, questions, and comments to thecommonlaw@austinchronicle.com. Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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