Federal Judge Limits Smoking Ban

Sparks says businesses are not responsible for smoking patrons' conduct

Federal Judge Limits Smoking Ban
Photo By Aubrey Edwards

Austin's smoking ban, which took effect in September of 2005 following a narrow approval by voters, had one of its most contentious provisions snuffed out in federal district court last Wednesday, henceforth changing the way the ordinance can be enforced. Judge Sam Sparks ruled that the ban's requirement of bar or club owners to take "necessary steps" to stop customers from smoking was "unconstitutionally vague," meaning that proprietors can now only be penalized for failing to post no-smoking signs or failing to remove ashtrays but not for puffing patrons if the other two conditions are met. Since the smoking ban is a citizen-drafted ordinance that, according to city law, can't be changed or abolished until September of 2007, Sparks' ruling can be construed as an uncertain triumph in a backdoor attempt to repeal the divisive ban.

"The law hasn't changed;" the target of enforcement has just shifted to the individual, said Anne Morgan, the city's chief of litigation on Friday. "Health department officials [in addition to cops] can cite individual smokers," she said, with fines not to exceed $500. The Austin Travis Co. Department of Health and Human Services was the entity originally charged with enforcing the ban. So far, there have been no such individual citations. Morgan said on Monday that the city is "definitely going to appeal" Sparks' ruling. She said she wasn't aware of any cases of rogue smokers who, despite a bar employee's requests, wouldn't put out their cigarettes or leave the bar – which would've been the so-called "necessary steps." Although such situations were the stated basis for the suit – brought by establishments including Warehouse Saloon and Billiards, Canary Hut, Canary Roost, Elysium, Lovejoy's, and Ego's – Morgan called the scenarios "hypotheticals or what-ifs." She added that "outside the people who filed the suit, enforcement of the ban didn't seem to be a huge issue." Several of the plaintiffs were among the ban's most vocal opponents in the lead-up to the vote, and until now, a few had flagrantly disobeyed the ban, some asking smokers to sign a document stating that they had been told of the ban but chose to smoke anyway. Health-department data obtained in August showed that a number of the plaintiff businesses were among the most heavily cited bars in town. Asked how businesses with pending citations would be affected, Morgan said the individual cases must be evaluated according to whether the violation was based on smoking or signage and ashtrays.

Plaintiff attorney Marc Levin, who seemed to suggest in earlier, televised interviews that the ban was now unenforceable, told the Chronicle that if it's true that enforcement is now based on no-smoking signs and ashtrays, "people may still smoke." Levin argued that it's not practical to ticket individual smokers, nor is it in the city budget. He also disputed health-department officials' right to issue citations to individuals. As for the ruling's impact of actual businesses, Levin said, "Many places will still ask smokers to leave," but "the pool halls, dive bars, and blue-collar hangouts on the verge of going out of business" will benefit – as should citywide happy-hour revenues, since inspections have been more common in the late afternoon than late at night. He said the case was part of a larger issue of the government trying to dictate individual liberties, referring to discussions in places such as New York City of banning foods heavy in trans fats. (Perhaps we should have asked him whether scientists have found carcinogenic dangers in sitting next to someone eating a triple chili dog.)

Eric Wolf, who purchased Lovejoy's Taproom & Brewery this March, said he doesn't plan to do anything differently following the ruling, since indoor smoking really hasn't been a problem there. He said staff will still ask smokers to go outside and that "We're just happy we no longer have to be the cops, that things don't fall onto our shoulders any more." The well-being of Lovejoy's, Downtown's last remaining brewpub, was of particular concern prior to the ban, since it's one of very few establishments in the entertainment district sans an outdoor seating area. Former owner Chip Tait, who joined the lawsuit before selling the bar, listed the smoking ban as one of the factors contributing to the bar's waning revenues and his decision to sell. During his tenure, Wolf says he's been happy with Lovejoy's business and that he hasn't had to lay off any of the original staff. Best of all, Lovejoy's house brews have continued to flow (remaining tasty, according to this reporter's palate).

"We were happy the ordinance wasn't overturned, but we're not particularly pleased with Judge Sparks' ruling," said Rodney Ahart, director of governmental affairs for the Austin-area American Cancer Society on Monday. Ahart led the well-funded effort by the group O2nward Austin to get the ordinance on the ballot and approved by voters last May. "The ordinance can still be enforced, but it will require a different process in order to start citing individuals," he said. Austin will make a shift toward handling enforcement in a way that's similar to cities like El Paso and New York (whose bans were originally written to target individuals), said Ahart, adding that violations could be treated as any other complaint-driven call, "the same way the noise ordinance is handled." He was unsure of how Sparks' ruling applies to the ban's provision that owners must provide a smoke-free workplace to their employees and said he expects compliance to remain steady since the last thing proprietors want is the APD wandering into their establishments.

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