Don't Ash, Don't Tell

Restaurants, Bars, Make the Best Out of Smoking Ordinance

Don't Ash, Don't Tell
Photo By Todd V. Wolfson

A cartoon posted on the door of Vic Zuliani's office underscores the restaurateur's intense personality: A pelican holds a frog's head firmly in its mouth while the frog grips its hands tightly around the pelican's neck. The caption reads, "Never give up." That pretty much sums up Zuliani's stance against the city's five-year-old smoking ordinance. A nonsmoker and owner of Vic's Restaurant, Zuliani has been fighting the smoking ban since the spring of 1998, when he was cited for three counts of noncompliance. The first charge stemmed from failing to post a sign outside his restaurant warning customers about the designated smoking areas. So he went out and bought a sign. The second violation came when two of his regular customers lit up before the 2pm start time while city health inspectors looked on. Zuliani asked the couple to put out their cigarettes, but it wasn't enough to free him of a citation. Zuliani plans to contest the third violation -- this one for failing to provide a 15-foot nonsmoking buffer zone from the entrance to the restaurant.

Zuliani, poring over the ordinance like a contract lawyer, says the law requires a 15-foot nonsmoking buffer zone from the entrance of the restaurant, not the exit. He points to the door of his restaurant and declares, "That's not an entrance, that's an exit. When you're standing outside the door, then it's an entrance. I have no problem with keeping smokers 15 feet from the entrance, but inside the restaurant that door's an exit, not an entrance to the world. This is a poorly written law."

Since he was cited, three court dates have been postponed by his count; once because his attorney was ill, and twice more for no apparent reason. When he entered his plea of not guilty in municipal court, the prosecutor offered Zuliani a plea bargain. A guilty plea would yield a fine of only $318, provided he comply with the ordinance -- and the city's interpretation of a restaurant entrance. But Zuliani says he plans to challenge the law and seek a jury trial, even if his legal fees exceed what he would have paid in fines. (Zuliani's Oct. 4 court date was once again continued; he does not yet know the date of his next court appearance.)

Zuliani may be the only restaurant owner in the city to challenge the regulation, which otherwise has caused barely a ripple since its enactment five years ago. Still, coming under the scrutiny of local health investigators is no picnic. Last year, Mike Wilhite, the former owner of the Texas Chili Parlor, was cited by the Austin/Travis County Board of Environmental Health and told he needed to build a wall to separate the smoking section from the nonsmoking section.

Wilhite complied and closed off a room, separate from the main room and bar, at a cost of $2,000. Fortunately, he already had a required dual air-ventilation system in place, which saved him $10,000. He figured the enclosed room with the separate ventilator would make an ideal nonsmoking environment, since it was far from the bar area. But he figured wrong. According to the ordinance, nonsmokers require nonsmoking access to the bathrooms, which are located outside the enclosed room. Further, the restaurant needed to incorporate the ubiquitous 15-foot nonsmoking buffer zone from the entrance. So when all was said and done, the enclosed area became a smoking section, the bar area also became a smoking section, and the dozen or so tables next to the bar became the nonsmoking section. Now the Texas Chili Parlor is in full compliance, and nonsmokers retain nonsmoking access to the bathrooms and the exit, provided they don't step too close to the bar.

Wilhite says he's just glad he didn't wind up in jail. "It took me a while to get everything done," he says. "We got one postponement [of the court date] and then had to ask for a second postponement, but the municipal court doesn't grant a second extension for any reason. They never called me back to tell me it wasn't okay, so they put out a warrant for my address, like they would if I didn't show up for a traffic ticket."

Even the city health inspector who handled Wilhite's case agreed that the gerrymandered nonsmoking section made little sense, but there is no provision to grant variances in the ordinance. Wilhite thought one solution might be to add another entrance, handicapped accessible, to the enclosed room, the logical choice for a nonsmoking area. But the Chili Parlor has been grandfathered in as a historical building, so any improvements once made would require a costly overhaul of the plumbing and electrical system to bring it up to code, since variances are not allowed under the building code. Wilhite can understand the city's point. "I think the use of variances have been abused over time," he says.

A Complaint-Driven Law

How does the city monitor and enforce the law? It doesn't -- unless someone files a complaint. The board of health's investigation of the Texas Chili Parlor was spawned by a citizen's complaint, as was investigators' visit to Zuliani's restaurant in Oak Hill.

One spring Sunday in 1998, Zuliani was working in the kitchen when one of his waitresses told him a customer wished to speak to him. He met the customer with bubbling enthusiasm, figuring he was about to receive yet another compliment on his renowned country breakfasts. He was wrong.

"Everything was rockin' and rollin', the Sunday breakfast crowd was great, and she just lit into me like a tiger," Zuliani recalls.

Don't Ash, Don't Tell
Photo By Todd V. Wolfson

Apparently, as the customer was leaving, someone entering the restaurant blew smoke into her face. Zuliani apologized profusely and asked if she could point out the offender, but she couldn't remember who he was. Zuliani apologized once again, the customer left in a huff, and he went about his kitchen duties. The following week, the city's environmental health inspectors paid him a visit. The inspectors confirmed that they had been summoned there because of a citizen complaint, but they wouldn't reveal the identity of the complainant.

"Our enforcement is not heavy-handed. We respond to complaints, rather than routing inspections of places of employment," says Austin/Travis County Environmental Health Supervisor Lawrence DeRoche. "Food sanitarians who inspect food compliance do not also investigate and consult with regard to smoking compliance." DeRoche says his office does not have citation authority; instead, all citations stem from one man, Allan Baker, the environmental health compliance coordinator. From there, citations are handled through municipal court, much like a traffic ticket.

Most business owners cited for noncompliance never appear in court, DeRoche says. After 10 days, the health inspectors do a follow-up investigation to see if the business has complied to the ordinance voluntarily. If so, the matter is dropped. But Zuliani says he never received a follow-up investigation. De Roche declined to comment on the case. "As far as we're concerned, that issue has not been resolved by the municipal court. Since charges have been filed, we can't really talk about it," he says.

If the Zuliani case should go to trial -- and more and more it looks as if it will -- the person who filed the initial complaint against Zuliani would be required to appear in court to testify. If Zuliani loses, he could be charged with a Class C misdemeanor and fined up to $2,000.

Since the law's inception, complaints about businesses failing to follow the smoking ordinance have steadily decreased. In a six-month period from April to September, 1994, 228 complaints were filed. But during the entire fiscal year from Oct. 1, 1997, to Sept. 30, 1998, citizens lodged only 86 complaints. (This fiscal year's complaints have yet to be compiled, but DeRoche estimates the number will be no more than the previous year.)

Watering It Down

Who knows what life would be like today if the original version of the smoking ordinance had passed in April 1994? Sponsored by former mayor Bruce Todd and Council Member Gus Garcia, the more rigid version called for a total ban of smoking in the city, with the exception of tobacco stores, bars, and private residences. As the volatile process unfolded, the ordinance was rewritten to include further exemptions, such as smoking in restaurants after 2pm, in a lounge or bar area (provided at least 25% of the restaurant is reserved for nonsmokers and a separate ventilation system is installed). Both Todd and Garcia became disillusioned with the watered-down version of their ordinance and voted against it. Despite their disappointment at the time, they now consider the ordinance a success.

"The ordinance is working better than anticipated, not because of the way it's written, but because a good number of the restaurants went above and beyond the ordinance and have gone completely nonsmoking -- and their businesses are doing better," Garcia says.

Todd agrees, but he still thinks the original ordinance provided a better model for Austin. "Gus Garcia and I were the sponsors, but we voted against the ordinance because it got weakened during the process, largely through ... the tobacco lobby. They worked through the restaurant associations. I found out later that's a pattern of big tobacco, to hide behind restaurant associations. And while they've had limited success, big tobacco is losing the battle."

The compromise ordinance, largely rewritten by then-council member Ronney Reynolds, did receive input from other contributors, including Glen Garey, general counsel for the Texas Restaurant Association. Garey, a nonsmoker, says the ordinance as originally written would have proved a financial hardship for several Austin restaurants unable to afford the $2,000 to $10,000 outlay to comply with the law. Even with the compromise ordinance, some establishments were forced to close their doors, especially in East Austin, he says. And while Garey admits to writing a large chunk of the current ordinance, he rejects Todd's insinuation that the Texas Restaurant Association is a tool for big tobacco interests. "I always thought we did fine with smoking and nonsmoking establishments," he says. "I just want the best for the restaurants in our association and their customers. We work with the tobacco companies as long as our interests are in line with theirs, but they don't tell us what to do."

As Garcia mentions, some restaurants have turned completely nonsmoking, including Hernandez Cafe on East Sixth Street. Owner Leon Hernandez says he would not have been able to comply with the ordinance otherwise, since he lacked the required space and ventilation for a separate nonsmoking section. An ex-smoker, Hernandez says he does prefer the nonsmoking atmosphere of his restaurant -- but he doesn't support the city ordinance. "My opinion as a restaurant owner is that I want to have my customers satisfied with what they want. I don't want the city government telling us what to do."

Eddie Wilson, an ex-smoker and owner of Threadgill's, agrees. His original location on North Lamar became a nonsmoking establishment a full year before the ordinance passed. "We were just so full of people, we couldn't make it comfortable for nonsmokers, especially during Thanksgiving. We had three or four irate temper tantrums at first, but no more than we get for not taking American Express."

Don't Ash, Don't Tell
Photo By Todd V. Wolfson

When Wilson was asked to sign a petition in support of the 1994 ordinance, he refused. "Why should I sign a petition helping the city make a law when I'm doing this on my own just to improve my business? Besides, I sympathize with smokers. I used to smoke four packs of Camels a day for years."

The Highlife Cafe has also gone beyond the mandates of the smoking ordinance to satisfy the needs of both its customers and one of the owners. Co-owner Scott Campbell, a smoker, designates 50% of the cafe to nonsmoking, much to the relief of his partner, nonsmoker Mary Hall Rodman. And even though Rodman is extremely sensitive to smoke, so far it's been working and they've had no complaints from employees or customers. "We keep the nonsmoking area completely smoke-free," says Rodman, "so if they choose to sit in the smoking section, they lose all right to complain."

Bars Aren't Exempt

Restaurants aren't the only businesses expected to maintain a well-ventilated non-smoking section. Contrary to popular belief, the ordinance requires all bars, taverns, and nightclubs to do the same.

At live music venues, 25% of the shows must be nonsmoking, and each smoke-free show must be at least two hours long. How many live music venues follow this provision? Not many. In a call to 11 music venues where the only question asked was, "Do you have any nonsmoking shows?" only two venues answered in the affirmative: Threadgill's and Artz Rib House. Of course, those two restaurants ban smoking altogether, so 100% of their shows are smoke-free. The same is true of the University of Texas' Cactus Cafe, because smoking is banned in all state-owned buildings. Fat Tuesday's stage sits on the back patio, so its smoking shows are in the open air. The Continental Club puts on occasional smoke-free shows, especially when Junior Brown, a nonsmoker, is on the bill. The Saxon Pub also stages the occasional nonsmoking show, but Joe's Generic Bar, Emo's, Maggie Mae's, Antone's, the Hole in the Wall, the Broken Spoke, and the 311 Club never host nonsmoking shows.

"I think not being able to enjoy a smoke-free environment is an impediment to my being able to enjoy live music," Todd says. "If you want to see a certain band and they're at a bar that does not enforce the ordinance, you can't go for health reasons."

The ordinance also requires bars without live entertainment to provide a nonsmoking area with a separate ventilation system, even if they don't serve food. But anyone who takes a walk down Sixth Street would be hard pressed to find a bar with a nonsmoking section, unless it's a restaurant bar, such as Dan McKlusky's or Jazz on Sixth Street. Bar owners and club managers say there's a good reason for this: No one cares.

"Thursdays from 7-9pm is the designated nonsmoking night -- but everyone still smokes anyway," says Marshall Sugg, a manager at The Ritz on Sixth Street. If a customer were to ask for a nonsmoking area, the bar would provide one. But so far, Sugg says, no one's asked.

"Spending two hours a night, twice a week in a bar isn't going to kill you," Sugg says. "It's a bar, you know."

Some saloon owners question why they should play the role of policeman, and they wonder how much the city expects from them. The ordinance states that the owner must make a "reasonable effort" to stop smokers from smoking in a nonsmoking section or committing any other violation of the smoking law. But what constitutes a reasonable effort?

"According to the ordinance, 25% of this room should be designated nonsmoking. Okay, I'll give it a shot," says Lovejoy's owner Chip Tait. He stands on a bar stool and yells throughout the room in a stentorian voice, "Can I have your attention please: Everybody standing near the pool tables, you are now in the nonsmoking section. Please put out your cigarettes and obey the law."

Some people laugh. Nobody puts out a cigarette. "See? They don't listen to me. Just how much responsibility are bar owners supposed to take to enforce this ordinance?"

Zuliani agrees. "I follow the ordinance to the letter, at least in my interpretation of the law. For example, my employees are not allowed to smoke in the building, on or off the clock. But this is the hospitality business. It's not my job to enforce laws. I am not an officer of the court and I haven't been trained for this."

Baker, the city's compliance coordinator, says the ordinance does require restaurant and bar owners to police themselves. "If a restaurant owner fails to stop someone from smoking in a nonsmoking area, it's a criminal violation of the code," he says. Baker adds that compliance with the ordinance has been quite high, and only Wilhite and Zuliani have ever been prosecuted.

As for Zuliani, he fights on, but largely alone. With citizen complaints down, restaurant attendance high, and a booming bar business on Sixth Street, Austin's smoking ordinance seems to be working out for everyone -- whether the law is adhered to or not. end story

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