Smoke Alarm

Some Restaurateurs Prepare To Defy The City's New Smoking Ban.

WHEN TUCSON'S new smoking ban begins on October 1, the folks at Safehouse will be smoking up a storm, just like they've been doing every day for the past two years. In fact, it's likely the popular midtown coffeehouse will be even more crowded than usual on that day, when the cafe's owners celebrate the occasion with a joyous smoke-in. That night, at the Grill on Congress, it will be business as usual, with the regular after-hours crowd happily puffing away, ban or no ban. At Frank's, a popular midtown eatery that has allowed smoking throughout its tiny interior for the last 18 years, smokers will be required to step outside to the new patio. And over at Molly G's, customers may join the new private club which will allow smoking, even if it's unlikely to circumvent the ban.

Approved by the City Council with a 4-to-3 vote on April 12, the Regulation of Smoking in Restaurants ordinance bans smoking in all restaurants, with a few narrowly defined exceptions. It also allows for a "hardship phase-in" for restaurants that can prove they can't afford to comply immediately, and a "hardship smoking exception" for restaurants that can prove they've lost 15 percent of their business because of the ban. The ordinance also defines penalties ($100-$2,500 for first offense) for customers and managers/owners, and restricts the relationship between employers and employees as it relates to job requirements and smoking areas.

Molly Grezaffi has owned Molly G's for almost four years. She says 78 to 80 percent of her business comes from smoking customers. In an effort to exempt Molly G's from the ban, Grezaffi has designated the restaurant as a private club, accepting $1 annual membership fees from customers. "My smokers and my non-smokers both think the ban is absolutely absurd," she says. "In addition to my smokers, I've had a number of non-smokers join the club, and new non-smoking customers have stopped by to join, to support us."

But the City Prosecutor's Office says private clubs will not be exempted from the ban. Bill Call, who wrote the ordinance, states that even pre-existing private clubs -- VFWs, Elks lodges, and others that serve occasional meals at special events -- will have to abide by the rules of the ban.

At Frank's, Candace Salisbury says at least 65 percent of her business comes from smokers. She's worked at Frank's for 17 years and has been a part-owner for 10. "And," she says, "our non-smoking customers are against the ban, too. They're just as adamant about the government telling us what to do. They don't want to be told what to do." A new awning-covered patio has been built to address the ban, but the patio does not appear to comply with the precise wording of the ordinance, which states that outdoor smoking areas must be at least 15 feet away from non-smokers, entrances and exits.

Aaron Triplett, who owns Safehouse with his wife Jay, says his business is in a unique position to be damaged by the ban. "We're in a unique situation because we hold a retail tobacco license. About 20 percent of our gross sales come from cigarette sales." In a recent survey conducted by the café's owners, 93 percent of Safehouse customers described themselves as smokers, while fewer than 1 percent said they were non-smokers bothered by second-hand smoke. The fact that Safehouse is even designated as a restaurant is interesting, since the establishment prepares no food for customers. "We serve coffee, smokes and pastries," Triplett says. "The only reason we're even called a restaurant is because Tucson doesn't have licenses for other types of businesses, like (coffee) carts." Triplett has adopted a wait-and-see attitude about the ban, and, at least for now, smoking will continue at Safehouse.

Patrick Forsythe, who has been the owner of the Grill on Congress since June, says the ban caught him by surprise. "We got some backing from our Council members, who assured us the ban wouldn't pass. We were flabbergasted when it did." According to Forsythe, the Grill gets 60 percent of its business from smokers. That number increases to 90 percent after 1 a.m., when the bar crowd saunters in. "The mistake was not paying attention to the ban," Forsythe says. "Actually, that's wrong. The mistake was passing the ban." The Grill's ads highlight "caffeine, alcohol, nicotine, sugar, meat," and Forsythe sees no reason to change his strategy now. "We'll keep smoking, and just let the fines stack up. I just don't see them locking the doors."

All four owners voice additional concerns about fairness -- smoking is still allowed in bars and bowling alleys in Tucson, and in restaurants in Pima County -- and the possibility of increased alcohol consumption and DWIs. "My food is very good," Grezaffi says, "but after the ban, don't think for a minute that a smoker will come here for a hamburger, when he can go to the bar next door for a hamburger and a smoke."

"The bar and grill business is really going to boom here in the next year," Triplett says.

On the Council, the effort to pass the ban was spearheaded by Vice Mayor Janet Marcus. A longtime anti-smoking advocate and the wife of a cardiologist, Marcus previously chaired the Council's Youth and Family Subcommittee, which worked to develop a ban on cigarette vending machines later approved by the Council. Marcus maintains that bans in Flagstaff and Mesa have not hurt the restaurant industries in those towns, and cites an article in the New England Journal of Medicine that reports no business damage in cities and states that have instituted bans. And she sees the ban as protection for workers. "The health of the individual is of prime importance," she says. "Restaurant workers have the least protection of any workers against second-hand smoke. It's a public health issue."

One of Marcus' fellow travelers in local anti-smoking circles is Joel Meister, a Professor of Public Health at the University of Arizona. Meister is the volunteer chairperson of Clearing the Air, a local anti-smoking group, that -- along with the American Cancer Society, the Heart Association and others -- was instrumental in passage of the ban. As the Assistant Director of Arizona's Public Health Department, Meister wrote the Strategic Plan for the state's Tobacco Education and Prevention program. He left the Department over a dispute concerning implementation and evaluation of the plan. (A smart move, apparently. The Department has recently admitted that, after spending $750 million, it has no way of knowing whether or not the program has shown any success.)

Meister takes his crusade personally. He identifies himself as a "cancer survivor" and couches his arguments in the first person. "Most of the restaurants that have gone non-smoking on their own are fast-food chains. How does that help me? I want to be able to go to Kingfisher and Barrio."

Currently working on a similar non-smoking ordinance in Pima County, Meister insists (like Marcus) the ban will not hurt business. But when Marcus and Meister argue that the "restaurant business" is not adversely affected, they're not necessarily saying that individual restaurants will not be affected. Triplett offers contrary evidence: "We were looking to open Safehouse in Southern California," he says, "but it was too expensive. There are so many businesses out there affected by the smoking ban. We saw three coffeehouses close because of loss of business because of the ban." Anecdotal evidence isn't always convincing. Unless, of course, you're one of the anecdotes.

Rob LaMaster, of the Arizona Restaurant Association, argues that market forces are already forcing restaurant owners to address the needs of a steadily growing non-smoking customer base. According to LaMaster, the average annual increase in the total number of restaurants is 3 percent, while the average annual increase in the number of non-smoking restaurants is 33 percent. He says the ban, and the incremental approach the anti-smoking forces have adopted, is driven by politics. Anti-smoking activist Meister agrees that the market is working, but "too slowly." And he admits that politics played a role in the ban. "We didn't press for an all-out ban for strictly political reasons."

The ordinance's "hardship phase-in" -- which allows owners who can prove they've lost 15 percent of their business to request an exemption -- is little comfort to businesses with narrow profit margins. (In the restaurant business, the average profit margin is 5 percent.) Under the ban, a devastating 14 percent loss of business does not qualify a restaurant for exemption, even after the owner has suffered the required indignity of opening up her books to the prying eyes of government bureaucrats. (Imagine a City Council suddenly faced with a 14 percent loss of tax revenue, or City Council members faced with a sudden 14 percent cut in pay.)

The owners also don't buy the argument that government needs to protect workers from second-hand smoke. They state forcefully that they have received few or no complaints from workers concerning second-hand smoke, and that, indeed, most of their non-smoking employees have voiced opposition to the ban.

Smokers themselves, Grezaffi, Forsythe, Salisbury, and Triplett are all quick to state that their intention isn't to promote smoking, but to defend the rights of adults to choose, and defend the property rights of restaurant owners, who can best determine how to serve their customers.

Though there has been some dialogue between restaurant owners, there is no cohesive strategy for fighting the ban. "It's basically every man for himself. We're all watching to see who'll be the most daring," says Triplett.

At the same time, there has been little contact between the owners and the City Council. "Politics isn't my bag. Ignoring the ban is the only stand I can take. We're not going to conform," says Forsythe.

Salisbury shares his sentiments. "I know government bureaucracy crap. I mean, I'm busy. I'm not going to go down there and bang my head against the wall. You're fighting the dude. I want to fight, but I'm tired. I don't want to fight them. I shouldn't have to."

Part of the owners' resentment stems from the lopsided City Council meeting of April 12. Before the vote was taken, audience members were allowed to speak. "I filled out a blue card requesting a chance to speak, but I wasn't picked," Grezaffi says. "Several restaurant owners submitted cards. Mayor Miller said he would just 'pick the names at random,' because there were so many. Well, his 'random picking' included four doctors and one other person from out of town, all speaking in favor of the ban. They had nothing to do with Tucson! He didn't call on one restaurant owner. There was one bar owner who was allowed to speak, and that was it. It does amaze me that our illustrious mayor picked five people from out of town, all speaking in favor of the ban, at random."

Triplett shares Grezaffi's concerns. "I completed a form, but I wasn't called to speak. Only one bar owner spoke, and that was early on. There were quite a number of owners there; it was quite interesting that only one was allowed to speak. The only other people chosen to speak against the ban were a hippie and a guy who was drunk. It made everyone who was opposed to the ban look terrible."

Given the fact that Forsythe, Grezaffi, Salisbury and Triplett are independent restaurant owners, it's not surprising that they haven't come up with a joint strategy for fighting the ban. Nor is it surprising that they haven't the time, energy or resources to fight city hall. Unlike Janet Marcus, Joel Meister, and their ilk -- bureaucrats and busybodies with too much time on their hands -- the restaurant owners are entrepreneurs. That means they've got businesses to run.

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