Will The Smoke Clear Before Garcia Leaves Office?

The smoking ban gets preliminary approval but its future remains uncertain.

Austin's bar and club owners got dragged, kicking and screaming, a half-step closer toward a tobacco-free future last week, as the City Council voted 4-3 to approve on first reading Mayor Gus Garcia's proposal to ban smoking in public places. But the narrowness of the vote -- and the suggested revisions, unpopular with smoking-ban fans, that have kept the ordinance alive at all -- left club-scene leaders and other ordinance foes cautiously optimistic.

Garcia told the audience at last week's meeting that the smoking ban -- which he denied represented his "legacy," noting that "I'm not a legacy-type person" -- constitutes unfinished business from earlier in his career. When Austin's current smoking restrictions, which exempt bars and some restaurants and allow more indoor smoking in the evenings, were adopted in 1994, "the votes were not there for what we considered to be a strong ordinance," noted the mayor, who as a council member sponsored that effort with then-Mayor Bruce Todd.

Since then, he noted, more medical opinion has emerged on the dangers of secondhand smoke, other cities have adopted stricter measures, and Austin has started to faintly rouse from its doldrums -- though not enough to convince club owners who feel even more economically vulnerable than they normally do. "I felt it was something we should do here," Garcia said, "and I felt that the mayor ought to be the one that proposed it."

But even as he did so -- passing the gavel to Mayor Pro Tem Jackie Goodman so he could make the formal motion -- Garcia knew that the momentum stoked by the Tobacco-Free Coalition of Austin's aggressive campaign had already begun to dissipate. Garcia's successor-to-be, Council Member Will Wynn, announced a week before winning the May 3 mayor's race that he, like all of his challengers except Jennifer Gale, opposed a smoking ban. The two candidates still vying to fill Wynn's Place 5 seat, Brewster McCracken and Margot Clarke, have likewise announced their opposition to the measure.

And all three council members who joined Garcia on last week's 4-3 vote -- Daryl Slusher, Betty Dunkerley, and Danny Thomas -- conveyed much less enthusiasm than Garcia or ban fans have brought to the vision of a smoke-free Austin. All of the above -- as well as Goodman and Raul Alvarez, who voted no -- cited misgivings about taking risks, whether actual or perceived, with the music and entertainment scene. "It's a tough issue to try to decide," said Slusher, "between the one side saying, 'If you don't do this, it's going to kill people,' and the other saying, 'If you do this, it's going to kill our business.' That's not a very good choice." Slusher later told the Chronicle, "I was torn, because I think you should be able to do what you want as long as it doesn't hurt other people, and I thought there should be places where people could smoke. But when you look at the science, it's hard to argue that smoking doesn't hurt other people. That's what convinced me."

Both sides -- limited to 30 minutes each to address the council, although hundreds of citizens had signed up -- demonstrated how polarizing the issue remains. Not more than five minutes into the public comment, a citizen was bewailing that, after an inopportune visit to the Hyatt, her baby's "clothing and hair were saturated with the disgusting smell of cigarette smoke. ... I hate to think of what kind of poisons and toxins went into his brand-new lungs."

But both sides have also tried to dispel the smoking-battle stereotype of uptight health Nazis vs. reckless club trash. Among the most effective advocates of a smoking ban, according to Slusher, were the musicians themselves. "The first rule of club etiquette is that we never complain about the smoke," musician Peter Keane told the council. "But get musicians alone, and you get the real scoop. The smoke makes us sick and irritates our vocal cords, and I have heard plenty of musicians who are smokers themselves make the same complaints." Slusher also cited a 2002 survey by the office of California Gov. Gray Davis finding that, since the Golden State instituted its anti-smoking rules in 1998, bar owners and staff had come to support the measure by sizable margins.

Conversely, the anti-ban side brought up its own unlikely cast -- like Family Eldercare, which sought an exemption for bingo halls, or club owner Lane Roth of the Boyz Cellar, who dramatized his comments by deploying his own asthma inhaler. "I can only go into my own business one night a week," he said. "But I know I will be closed in 60 days if you pass the ordinance as written." After surveying his customers for three months, Roth said, he discovered that "70% of my customers smoke ... and they are telling me that if they can't smoke in my establishment, they are not going to come in."

But what if they couldn't smoke in any establishment? Issues of fair competition between smoking and nonsmoking venues helped motivate Garcia to propose an outright ban, and they've helped efforts by anti-tobacco forces across the country in what's been a good run of political luck. Just this week, the Massachusetts Legislature approved a statewide ban, supported by bars in already smoke-free Boston, which feared their business would decamp to smoke-friendly suburbs. Both sides in the local debate have lobbed statistics to prove that a ban would, or would not, destroy Austin's entertainment industry, or that it would, or would not, avert a real public health crisis, particularly among that industry's employees, caused by secondhand smoke.

Garcia ended up accepting friendly amendments from Dunkerley to exempt charity bingo halls and fraternal organizations; she also proposed an exemption for "billiard halls," but held that one for later readings pending a more precise definition of that species of venue. Slusher took on the more challenging task of loosening the draft ordinance's "impractical" ban on smoking in outdoor venues, patios, and within 25 feet of entrances, at least in the entertainment districts. (As Sixth Street club leader Bob Woody pointed out, "You would have to leave Sixth Street to smoke, because 25 feet would put you into the middle of the next building.")

"We're trying to look at what would be more realistic," Slusher says. He thinks the final measure should also exempt patios and outdoor areas, but noted that Woody had asked the council to not carve out exemptions on the dais, citing the unfair advantage that would be enjoyed by bars where smoking was legal. "I'd like to hear from staff and other bar owners on that," Slusher says. "It's up to us if we want to do a compromise measure. I think if the bar owners take the position that it's all or nothing, it's going to be all."

Right now, it appears unlikely that club owners will get their wish -- the creation of a task force to gather the input from affected stakeholders who felt ignored by Garcia and the Tobacco-Free Coalition as they rushed to pass a ban. (One of the more strident ban fans told the council the task-force option was "bureaucracy and a stall tactic [and] smokers' propaganda.") Garcia would still clearly like to get an ordinance passed before his term is up, and Slusher thinks "it's going to be resolved during this council term." They'll go down to the wire; the smoking ban isn't posted on this week's agenda, and only two meetings remain thereafter until Garcia hands Wynn the gavel June 16.

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