The Austin Chronicle

Where There's Smoke …

Across the country, perspectives on the smoking bans offer a very mixed bag

By Daniel Mottola, April 15, 2005, News

"I'm Bill Hicks and I'm dead now because I smoked cigarettes. Cigarettes didn't kill me. Nonsmokers kicked the shit out of me one night. I tried to run. They had more energy. I tried to hide. They heard me wheezing. Many of them smelled me." – Bill Hicks

Legendary Texas comedian Bill Hicks never hesitated to express his distaste for what he considered the sanctimonious attitudes of nonsmokers. As the town he once called home moves closer to a vote on whether or not to ban smoking in all public places, including bars and clubs, many business owners feel similarly persecuted by Austin's nonsmoking forces. Anti-smoking activists respond that the smoking ban is a simple question of public health, and that it is smokers who believe they have a right to impose their toxic personal lifestyle choice on others.

In February, Onward Austin, an ad-hoc anti-smoking citizens' coalition organizationally and financially backed by the American Cancer Society and the Lance Armstrong Foundation, submitted sufficient signatures (36,764, representing more than 10% of the Austin electorate) to require the City Council to place a stricter smoking ordinance onto the May 7 City Council election ballot. (The official name is "O2nward Austin" – oxygen, get it? – but since it's unpronounceable, "onward" it is.) Since then, bar and club owners, forming a political action committee called Keep Austin Free, have proclaimed their dire but very real fears that a ban would financially undermine or even spell doom for many of their businesses.

Opponents' arguments against the ban take several forms. First to surface were claims that citizens had been misled into signing the petitions supporting the smoking ban by overly broad pitches – "Want to stop cancer?" and "Want safe workplaces?" – from petitioners. That was followed by a (dismissed) federal lawsuit challenging the legality and constitutionality of the new ordinance, including the novel argument that the use of incense in religious ceremonies will somehow be threatened by the smoking ban. Marc Levin, attorney for Keep Austin Free, said last week that while federal Judge Sam Sparks did deny his client's request for a temporary restraining order on the smoking ban prior to its appearance on the ballot, "I think we've got litigation in a very good place with respect to our concerns and the city's failure to respond to some of them. If [the smoking ban] passes, we could get a decision on its merits quickly, to protect my clients from the ban's effects." Most recently, suggesting the shotgun approach of the opposition, the bar owners have questioned a campaign finance waiver within the proposed ordinance, implying unspecified financial irregularities behind the anti-smoking campaign. Ahart responded, "The passage came directly from the ordinance drafted by the city legal staff that passed in June of 2003 but never went into effect. It is standard, boilerplate language to waive procedural requirements for ordinance adoption." More substantively, opponents complain that the ordinance is unnecessary and discriminatory, and makes the club owners assume all the risk of a dramatic change in city policy that is effectively aimed only at them.

There is no doubt that bar and club owners are truly concerned that the ban will snuff out their livelihoods. "I don't have any reason to believe that Beerland will survive a smoking ban," says Beerland owner and Keep Austin Free member Randall Stockton. Stockton says that based on his in-club surveys, 85% of the patrons, and 90% of the performers that frequent his Red River club, are either smokers or visit the club in the company of smokers (including band members). "Who are we protecting them from?" he wonders. As an Austin-centric incubator of lesser-known acts, Beerland is just the sort of club that opponents say will suffer the most from a ban – consequently handicapping Austin's edgiest music scene. "When the people that actually support my business ask me to be smoke-free, I'll do it in a heartbeat," said Stockton.

Likewise, Keep Austin Free spokesman Paul Silver, owner of the 219 West lounge, believes local bars are being unfairly asked to be experimental subjects of the ban. "There's nobody there to mitigate our losses if we fail," he says. Silver occasionally suggests that those who support the ban should underwrite the risks. "It would be interesting if anti-smoking didn't go the route of prohibition, but [instead] said, 'We will indemnify you over X years because we believe nonsmokers will come out.' That would be a true sign of courage." It's difficult to see how such an indemnity would actually work, especially since club finances are notoriously volatile even in the best of times, but in any case, after narrowly failing to implement the ban in 2003 – the current City Council reversed the action of the previous Council, led by then-Mayor Gus Garcia, before it could take effect – the antismoking advocates are unlikely to make such concessions.

Breathing at Gigs

"As the campaign continues, you will see the opposition's arguments become weaker," says Onward Austin spokesman Rodney Ahart, who's also the governmental affairs director for the American Cancer Society's Austin office. As an engineer of earlier attempts for a full ban, spearheaded officially by former Mayor Garcia, Ahart says, "The overriding benefit of protecting people from secondhand smoke will be the driving force in people's voting for the ordinance." He dismisses fears of widespread business declines, saying, "People who are dedicated to live music are more dedicated to the performers than to cigarettes. People don't believe that making a venue smoke-free will make people stop going." As evidence, Ahart can point to the successful petition drive itself, as well as broader public opinion surveys that consistently find majorities in favor of eliminating smoking from all common public areas.

Another prominent Austin voice emerged just last week. When Keep Austin Free asked the Music Commission to weigh in on the debate, the club owners perhaps expected the nine-member appointed board (which advises the City Council on the local music industry and matters affecting live-performance venues) to unequivocally oppose the ban. Instead, commission vice chair and renowned local musician, Natalie Zoe, sent this response (in part), while duly noting afterward that the Music Commission cannot take an official position on a ballot initiative. "The Music Commission is divided on this issue, so the chance of us passing a resolution against a ban is unlikely. I realize that both smokers & club owners think a ban is a heinous idea, but I disagree completely. I've been forced to breathe other people's disgusting secondhand smoke in order to make a living playing music for years & years and will rejoice when I can actually breathe at a gig. Frankly, I haven't worked with any musicians who smoke in years. None of my personal friends smoke and pretty much everyone I hang out with – and that includes some of the very best musicians around ... – hates smoke. They all say they'd go out more often if they didn't have to come home reeking of tobacco. ... I truly don't believe that a ban would 'ruin' the current local industry. It has worked just fine in a number of cities – including NY after a period of transition." Zoe has been an anti-smoking stalwart for nearly 30 years, but the fact that the Music Commission isn't persuaded by fears that the ban will kill the music scene should help reassure ban opponents, to some degree.

Indeed, reports from Ireland, New York, and just last week from Harvard University researchers concerning the effects of a ban in Boston, on the whole defend smoking bans from charges of economic disruption. According to these studies, cities where similarly broad bans have been instituted in the past five years show slightly increased bar (and restaurant) receipts and increased industry employment. But ban opponents say that most statistically based economic analyses obscure the grassroots financial effects on independently owned, local establishments, by lumping them together with places like Starbucks, McDonald's, or large commercial music venues. Local anti-ban forces say the media have thereby missed the real devastating effects on small businesses, especially locally focused places like Beerland that operate on slim profit margins.

And it's frankly hard to identify truly "objective" analyses. Onward Austin cites studies from the Centers for Disease Control, for which public health is the only issue, while Keep Austin Free cites alcohol industry-funded groups like the Vintners Association or organizations like the Smokers Club Inc., which runs a hysterical Web site insisting that secondhand smoke is harmless but smoking bans cause death – for example, when bar-exiled smokers kill somebody in a rage. Not the most effective defenders of smokers' rights.

In hopes of somewhat clearing the air, I contacted bars and live music venues in three cities where full bans have been implemented. I called local, small-scale, independently owned bars and music venues as well as more established clubs in San Francisco, Boston, and New York City. The responses were mixed, and could provide comfort and ammunition to people on both sides in the current Austin debate. But, perhaps surprisingly, those closest to the live music scenes in their cities tend to report the smallest negative effects from the smoking bans. To the extent that there are problems, they appear to be elsewhere, and in venues that might not translate as directly to the Austin context.

Winners and Losers

The Hotel Utah Saloon in San Francisco ( is a small bar that serves food and features live music every night. California was one of the first places in the country to enact a complete smoking ban, in 1998. Bartender Rebecca Gudobba remembers when the ban took effect, more than eight years ago. "Anybody that did feel the effects then, doesn't now." Asked whether Austin's ban would put bars out of business, she said, "No, it won't happen. You will experience a lull when people first react to it – people here hated it, they tried to get it repealed. But people just get used to it." Another San Francisco music venue, 12 Galaxies (, is described simply as a "rock club" by owner Robert Levy. He said he's never really seen a difference in business since the ban. "I can't smoke in a bar, so I'm going to sit at home and rip butts all night? No," he joked. "People are going to come to see live music whether they can smoke or not." 12 Galaxies, Levy says, mainly books local Bay-area acts. When it comes to ordinance drawbacks, he said increased noise complaints (generated by smokers congregating outside venues) are more likely, especially for bars in residential districts. There is also the logistical problem for club-owners of monitoring people going in and out. "Will people stay away in droves?" he concluded. "No."

Across the country, in Massachusetts, a statewide smoking ban took effect last year, following a citywide ban in Boston. T.C.'s Lounge in Boston, declared 2004's "Best Dive Bar" in the local newsweekly, The Boston Phoenix, is the kind of hole-in-the-wall local bar that Austin club owners fear will succumb under the pressure of the ban, although it's a drinking-and-conversation place, serving bar food, and not a live music venue. Proprietor Tony Constalvi says he serves a diverse array of customers, including older regulars, college students, and visitors from all over the world. Constalvi is personally ambivalent about the effects of the ban – but he calculates it has effectively cost him 20% in business. "People go outside to smoke, drinks sit on the bar," he says. "It cuts down on the quantity of alcohol sold." Constalvi himself quit smoking 23 years ago and likes the ban because he no longer smells of smoke, but shrugs, "As far as business, it hurts." His customers come to the bar for a communal experience – drinking, smoking, talking, and watching television – and since the ban, a lot of people who would have come out to watch the game, now stay home. Constalvi says he's resigned to the aftermath. "This is the way of the world – they did it in Ireland, they did it in Italy, if they do it in Asia it's all over." To Constalvi's knowledge, a number of Irish pubs in Boston have closed due to the ban. "In the long run people like it," Constalvi said, "but it definitely cuts down on business."

In nearby Cambridge, Kieran Fallon, box office manager at the Middle East ( says the ban hasn't affected club attendance. The Middle East has stages on two floors and is split between local and touring acts. Asked about Elysium owner John Wickham's concerns that Austin clubs will have to cut back on booking local, unheralded bands in favor of "swinging for the fences" with big-name acts to compensate for depressed alcohol sales, Fallon said he books local bands every night and has done so since the ban took effect. "No one took a bigger chance to get people to come out." Right after the ban began, not a lot of people were going out, he said, but one month later, things were back to normal. As for post-ban bar and club closures, Fallon said some may have changed formats to attract a different crowd, but he knows of none that closed. Overall, he said, it didn't take long for people to come back out.

The New York news is similarly mixed. When the Times published an article in February declaring NYC's smoking ban – enacted under Mayor Michael Bloomberg in 2003 – a success, and insisting that the devastation business owners feared simply hadn't materialized, Soho bar owner Amy McCloskey erupted, rattling off an angry three-page response. Her bar, Madame X, was voted the city's best lounge in 2002 by Citysearch users. That year she netted more than $1.2 million. In 2004, she says, her profits declined by 63% and now Madame X is behind on its rent and barely holding on. She says that since New York's ban, people are flocking by train to nearby New Jersey bars that still allow smoking. "As horrifying as it is, I'm hoping New Jersey will pass a ban in June," McCloskey said. "That's the only thing I can hope for to save my bloody business."

In her letter to the Times, McCloskey wrote, "I've met with the owners or managers of many businesses in Soho, Greenwich Village and the Lower East Side and the main topic of conversation is how dead our neighborhoods have become since the smoking ban went into effect." Echoing San Francisco's Robert Levy, she says noise complaints in NYC have greatly increased since the ban. She also says that the mayor's office has yet to release individual bar sales data, and is basing its conclusion that the ban has been an economic success on figures that fail to differentiate bars from restaurants. McCloskey also says neighborhood area can be a major factor in overall bar traffic. "Some neighborhoods are still very hot, people are still going out." But a decreased number of people, she says, equals decreased overflow from hot neighborhoods to the less popular areas. "It's a self-perpetuating problem that definitely applies to Austin. Places not offering what people want, food and live music, have a noose tightening around their neck," McCloskey said.

But again, the live music clubs don't seem to be seeing that effect. The Knitting Factory (, which has locations in New York City and Los Angeles, is known for hosting some of today's best indie bands. The New York venue has three performance spaces dedicated both to local acts and prominent touring bands. Promotions and marketing director Robert Johnson said the ban initially hurt – especially around happy hour. But he continued, "Let's be real here – people are still going to come out and drink and people are definitely going to come out to see bands. The sort of fans that see indie bands are dedicated, smoking ban or not." Johnson reiterated the need for a good system of reentry, however.

Asked whether the dismal predictions by Austin club owners of inevitable ban-related failure will come true, Johnson responded bluntly, "Not at all, that's crazy," and he adds that his entire staff agrees. "It will have a little effect on bars, but I can't think of a single one that's gone out of business due to the smoking ban."

Austin Free or Onward?

So, what might these anecdotal reports mean for Austin's live music clubs and bars – the 200 or so local venues estimated by Keep Austin Free – not to mention for Austin's voters? Based on most of the accounts I've been able to gather across the country (as well as the ongoing war of post-ban statistics), it would appear Austin's live music venues – focus of most of the public concern – may have less to worry about than its handful of neighborhood watering holes, where most of the draw is not live performances but simply a place to drink, talk – and smoke. Also in the mix, but virtually unmentioned, are the bowling alleys and billiard parlors that managed to get themselves exempted when the current, "compromise" ordinance was enacted. Since as a matter of course the bar business is notoriously volatile, it may well be impossible to tell if any future closings might be laid at the feet of the smoking ordinance, should it finally pass.

But that prospect raises Randall Stockton's question, "Is it acceptable for some places to close?" Any public policy has inevitable drawbacks, and the numerous, even insistent reassurances from the club people I talked to elsewhere – that the ban will have only temporary effects and will likely lead to virtually no venue closures – may not fully comfort some Austin club owners. As Paul Silver puts it, "Even if the sales impact were temporary, there are very few bars with the cash reserves to survive the adjustment. These bars are primarily the small, locally owned music venues. If the ban passes we can do a postmortem on the failed clubs and exactly define how much business they lost before closing." At the same time, supporters of the smoking ban respond with an undeniably rational question, "Do people go out to smoke, or do they go out to socialize, see the newest bands, and have a couple of drinks?" Either position will only be fully tested in the aftermath of a ban.

Whatever the answer, smoking bans have become a growing social and public policy movement that shows no signs of going away. As more and more places around the world pass measures similar to the one proposed here (see, we can expect that even should it be defeated on next month's ballot, a full smoking ban will eventually revisit Austin in some form.

Sadly and more than a little ironically, comedian Bill Hicks died of pancreatic cancer in 1994, in his prime, at age 32. There's no way to be certain of the direct cause of his illness, but his chances of survival were hardly increased by years of heavy smoking – nor by years of performing in clubs where everybody inhales clouds of secondhand smoke, either their own or that of others. On one side of the argument are rights of property, personal freedom, and the survival of small, legitimate businesses; on the other, the rights of workers, musicians, and the public at large to enjoy community spaces without the imposition of secondhand smoke, all taking place within a broader effort to decrease the amount of smoking-related suffering and death in our community. On May 7, Austin voters will choose which of the arguments now weighs stronger in the community balance. end story

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