Mixed results a year into the smoking ban

Almost one year after a statewide ban on smoking in public places officially took effect, the prohibition has shown to have affected restaurants and bars across the lakes area in different manners.

Under the Dr. Ron Davis Smoke Free Air Act, smoking and the use of all other tobacco products — including non-cigarette tobacco and smokeless tobacco — is prohibited in all public places and food service establishments throughout the state. Besides protecting patrons from secondhand smoke, the law is designed to protect employees, including those working in a restaurant or bar, from the ill-effects of secondhand smoke.

The act was officially passed by the Michigan Senate and House on Dec. 10, 2009, before being signed into law by former Gov. Jennifer Granholm on Dec. 18, 2009. The ban on smoking and all tobacco use in public places took effect on May 1, 2010.

Places that are exempt from the smoke-free law are cigar bars, tobacco specialty retail stores, and the gaming floors of casinos, as well as motor vehicles. Only cigars can be smoked in cigar bars, with all other tobacco products prohibited.

Electronic cigarettes, which are battery-powered devices that provide inhaled doses of nicotine by way of a vaporized solution, aren’t covered under the smoking ban, but each individual establishment can make its own rules on whether to allow them to be used in their building.

According to the state’s website on the smoke-free law, when the Legislature passed the ban, lawmakers did so citing findings that secondhand smoke has been proven to cause cancer, heart disease and asthma attacks in both smokers and non-smokers.

Prior to the smoking ban taking effect, the state encouraged business owners to take steps and make sure their establishments would be compliant with the law. Those steps included discussing what were then forthcoming changes with employees and training them on what to say to customers smoking in prohibited areas.

One of the ban’s results has been increased business at some bars and restaurants — including at the Village Place Restaurant on Cooley Lake Road in Waterford Township and at CJ’s Brewing Company in Commerce Township — with former and new patrons along with families frequenting establishments without fear of secondhand smoke.

However, other establishments — including area cigar bars such as Nectar’s in West Bloomfield Township — which are havens for smokers are reporting that business has actually gotten worse now that cigarettes, pipes and cigars are no longer allowed to be smoked indoors or in outdoor areas where food or beverages are served.

Other businesses have also reported a decline in customers, but some say it’s due more to the state of the economy and people trying to save money rather than not having a place to smoke when in public.

In the meantime, efforts are under way to make changes to the smoking ban, but some are not optimistic that serious and meaningful modifications are afoot, particularly given that lawmakers are currently in the midst of budget negotiations and pushing for other government reform measures.

Steve Mace, executive director of Protect Private Property Rights in Michigan, an organization at the forefront of protests in which bar and restaurant owners willingly disregard the smoking ban, said he isn’t aware of any such organized protests in the works. He also said he’s skeptical about the chance that meaningful changes will be made in the smoking ban during the current legislative session.

“We are absolutely uncertain what this Legislature is going to do,” Mace said, adding that legislation introduced thus far regarding the smoking ban seems to be “token gestures” rather than serious reform proposals. “They seem to be as disconnected as the previous Legislature.”

“As for the (state) budget, as I’ve said to many people in our position, there are more pressing issues (than that) to these individual mom-and-pop bar owners. It’s almost a shame that it comes down to smoking or no smoking. These people are concerned about surviving. Hopefully our benevolent lawmakers will see it the right way.”

And area lawmakers — at least one of whom has serious legislative clout over what happens or doesn’t happen regarding the smoking ban since he is at the helm of the committee that would likely deal with most of the smoking ban reform proposals — seem a bit skeptical, as well.

State Rep. Hugh Crawford (R-Walled Lake, Wixom), who chairs the House Regulatory Reform Committee, where legislation regarding the smoking ban is often assigned, said the issue is “on the back burner” for the time being but he foresees the possibility for some smoking ban reform proposals to be taken up, including proposals by state Reps. Tim Melton (D-Auburn Hills) and Douglas Geiss (D-Taylor).

Melton’s House Bill (HB) 4447 would allow bars and restaurants to let people smoke on outdoor patios, while Geiss’s HB 4127 would allow smoking in legal smoking rooms and in rooms where no food is served.

“Those two issues might be taken up at some point in time, but as far as a wholesale revision of the smoking ban — repealing it or anything else — that’s not in the works,” Crawford said.

Both state Reps. Chuck Moss (R-Orchard Lake) and Gail Haines (R-Waterford, West Bloomfield) said the public still backs the smoking ban, therefore eliminating the chance for an outright repeal at this point.

“It was overwhelmingly supported by the people, and I just don’t see that that’s changed,” Moss said.

Moss and Haines stressed that their votes in favor of the smoking ban at the tail-end of 2009 were difficult: Moss said he was “dragged kicking and screaming” into supporting it, while Haines called it “one of the most difficult votes I’ve ever taken.”

Kelly Niebel, community director for the Michigan Department of Community Health, said the smoking ban remains very popular a year after its establishment and that businesses and residents are showing high rates of compliance.

“All in all, we believe implementation and enforcement has gone quite smoothly,” Niebel said. “Local health departments have reported that the majority of reported complaints are resolved without a need to issue a citation. Our goal is compliance, not citations.”

Tony Drautz, administrator of environmental health services for the Oakland County Health Division, said the division has received and responded to numerous complaints since the effective date of the law, and that the division has been able to gain compliance with the requirements of the statute.

“There have been no fines assessed or formal enforcement actions taken against any establishment for violations related to the smoke-free law,” Drautz said.

Under the current law, the state defines a public place as an enclosed indoor area owned or operated by a state or local governmental agency and used by the general public; an enclosed indoor area used by the general public which is an educational facility, a home for the aged, a nursing home, hospice, or hospital long-term care unit; an auditorium, arena, theater, museum, concert hall, or any other facility during the period of its use for a performance or exhibit of the arts. Also included are bowling alleys, bingo halls, shopping malls, mechanic shops, child care centers, and hotels and motels.

Also covered under the ban are Veterans of Foreign Wars (VFW) halls or other private clubs that have a food service license, although VFW halls are the subject of HB 4255, which would exempt war veterans’ organizations from the smoking ban. The law makes it clear that even if they don’t serve food or beverages, but employ at least one person, they must be smoke-free.

The law also says that indoor common areas of apartment and condominium buildings must be smoke-free. Individual living units in apartment and condominium buildings are exempt from the law, but a building owner has the option to make their building smoke-free, including all living units.

The law states that people are not allowed to smoke in a place of employment, defined as an enclosed indoor area that contains one or more work areas for one or more persons employed by a public or private employer. However, employees may smoke in a home office, which is defined as a structure used primarily as the residence of the owner or lessee that is also used as an office for the owner/lessee and for no other employees.
As far as food service establishments or restaurants are concerned, smoking is not allowed in any indoor area, or in outdoor areas where patrons receive and consume food and beverages; however, smoking is allowed in outdoor areas where food and beverages are not being consumed.

In order to comply with the law, the state recommends that restaurant owners post “no smoking” signs and symbols at each entrance and other areas where smoking is prohibited in their facilities. The state also recommends that owners remove ashtrays and other smoking paraphernalia.
If individuals are caught smoking in violation of the law, owners are encouraged to inform patrons that they are subject to penalties, that they may refuse service to those smoking and can even ask the individual to leave if he or she refuses to quit smoking in the building.

Penalties can range from a $100 fine for the smoker or the owner of a business upon the first major violation, to a $500 fine thereafter for each subsequent violation. Fines are administered by the local or state health department after an investigation is conducted.

Patrons are also advised to notify the owner or manager of a restaurant if they see a violation, or to call the Oakland County Health Division at 888-647-0558, or to visit www.michigan.gov/smokefreelaw.

Consumer complaints can range from a lack of no-smoking signs in a facility to ashtrays and smoking paraphernalia still present in a building where smoking is banned.

Patrons can also report establishment managers who don’t inform violators of the smoking ban, refuse them service, or ask them to leave.

If Oakland County Health Division personnel believe the complaint is valid, they will send a notice to an establishment regarding the complaint and ask for a response by telephone or letter on how the issue was corrected within two weeks of when the notice was sent. If there is no response, a second notice will be sent with a warning that administrative action will be taken by the Health Division if a notice isn’t received within 10 days.

The state also makes clear that if smoking persists, the state Department of Community Health can take further administrative action that could lead to fines, fees, and even shutting down an establishment.

For an establishment to be exempt from the law as a cigar bar or tobacco specialty retail store, it must file an affidavit for an exemption with the Michigan Department of Community Health by Jan. 31 of each year. Other requirements for cigar bars and tobacco shops include that the facility is located on premises that are physically separated from any areas of the same or adjacent establishment in which smoking is prohibited, and no minors under 18-years-old can be admitted inside.

A cigar bar must also allow only the smoking of cigars that retail for over $1 per cigar and prohibit the smoking of all other tobacco products. A hookah bar may also qualify as a tobacco specialty retail store, but may not have a food service license, a liquor license or both.

Mike Karcho, a co-owner with his brother, John, of the Corner Cigar Bar, Nectar’s and the Vintage Wine Shoppe on Orchard Lake Road at Pontiac Trail in West Bloomfield Township, said that business at Nectar’s has dropped 15 percent since the smoking ban took effect a year ago.

“There really hasn’t been any business at Corner’s because there’s only so many cigar smokers,” Karcho said.

The Corner Cigar Bar has been cordoned off so that a food carry-out operation is separate from the cigar bar itself. No food is served in the cigar bar.

The 4,000-square-foot building seats 50 inside along with additional outdoor seating. The bar houses a throng of flat-screen televisions, pool tables and video games.

Alcohol is served, with a focus on micro-brewed beers. Specialty coffees are also featured.

As a service to patrons, rental humidor cabinets for cigar storage are also available.

Nectar’s also has two sides of its establishment split up for smokers and non-smokers, but under the new smoking ban, cigars must now be purchased on the smoking side and customers must buy cigars or rent a humidor.

“The ban is unfair,” Karcho said. “You can smoke at the casinos — how is that different from us? Some bars are even calling themselves casinos so they can have smoking. The VFW can’t even smoke in their clubs. It should be left to individuals. It’s their God-given right. If you don’t like what’s behind the door, don’t grab the door handle.”

Karcho said that people are pretty good about going outside to smoke when at his establishments.

Kim Kibner, owner of the Skybox Sports Grill in Highland Township, said she hasn’t had too many complaints from customers other than just barking about having to go outside to light up.

“I did have the Health Department call me one time because a customer said there was someone smoking on our outside patio last fall,” Kibner said. “However, since the law is so still fresh, I had a lot of people light up out of habit but we immediately would ask them to put it out and they did apologetically.”

Skybox took a hit when the law took effect, according to Kibner.

“I definitely saw a decline in my sales, mostly from the people that would come in during the day and eat some lunch, have some drinks and play Keno,” Kibner said. “Talking with the other local establishments, they also saw decline in sales which, in this economy, couldn’t have come at a worse time.

“This is all coming from a non-smoker myself, so although I do not smoke, I understand it in public establishments,” Kibner said. “It’s a non-smoker’s choice whether to come into a smoking establishment and I never had a problem with a smoking establishment.”

On the other hand, Carol Klein of the Village Place Restaurant on Cooley Lake Road in Waterford Township said that the smoking ban has been a blessing for that establishment.

“Our restaurant is cleaner,” she said. “We’re seeing people that we haven’t seen before that weren’t here before because of the smoking.”

She added that her restaurant just put in new ceiling vents after the old vents were destroyed because of smoke. The new vents go along with new lighting, and new carpeting will soon be added.

“People are happy,” she said of the smoking ban. “It’s shocking that no one has tried to smoke.”

Kristina Cigna, manager of CJ’s Brewing Company in Commerce Township, said that business there has gotten so much better that families with children and senior citizens are now frequenting CJ’s.

“There’s more of a variety of people. The regulars who smoke like it better and so do my employees because they don’t stink of smoke,” Cigna said. “We haven’t had many problems. Everyone knows the rule.”

Robin Silveri, co-owner of O’Tooles in Waterford Township, said the ban hasn’t had as much of an impact on the business as much as the economy has. But, the ban has paid some dividends for Silveri.

“We’ve got more customers who eat with no smoke drifting near them,” Silveri said. “People even went outside to smoke during the coldest days of winter. We’ve really had no complaints. One person tried to light up at the bar one time and apologized profusely.”

According to Erin Kennedy, daughter of the owner of Kennedy’s Irish Pub in Waterford Township, the restaurant has had new customers and food business has increased over the past year, but she admits that the smoking ban has put somewhat of a damper on Kennedy’s late-night crowd.

“Our regulars go out and smoke, so we’ve adjusted,” Kennedy said. “Business isn’t what it was before, but I believe it’s due more to the economy.”

Dale Willett, owner of the Village Place restaurant on Dixie Highway in Waterford Township, also said that the economy has hurt his business, but he’s hoping that business will pick up with warmer weather. He said he now doesn’t have to worry about seating smoking and non-smoking customers.

Prior to the smoking ban first being passed, Willett’s restaurant became a non-smoking facility and he had hoped that the ban would level the playing field.

Joe Puertas, owner of the Shark Club in Waterford Township, and Boomer Ulman, owner of Boomer’s Roadhouse in Waterford, weren’t available for comments as of press time, but previously said that while they haven’t had any major issues with enforcing the smoking ban and that their patrons were compliant for the most part, they didn’t like the government encroaching on citizens’ rights.

Earnest Yeldo, manager of Churchill’s Cigar Bar in West Bloomfield Township, also didn’t respond to a request for comment.

Brewbob’s in White Lake Township has an outdoor tent designated for smoking, where no food, alcohol or other beverages are served.

The Bayside Sports Grille in Walled Lake also complied with the law by setting up an assigned area outside where people can smoke.

Niebel of the state Department of Community Health said that six months after the implementation of the law, 72 Michigan counties and the city of Detroit participated in a second round of an observational study. She said that approximately 1,058 of randomly pre-selected establishments were observed by trained volunteers and that no one was aware that the observation was happening.

Niebel said that the study found “No Smoking” signs visibly posted in about 88 percent of the establishments, and owners and managers had removed ashtrays and other smoking paraphernalia from 97 percent of the establishments.

She added that the study also found smoking was not observed anywhere in nearly 99 percent of the establishments.

“The law is complaint-driven, so we rely on the public to report alleged violations of the law,” Niebel said.

“We will begin the process of collecting complaint data from local health departments so the yearly state total for the number of complaints filed will be available at the end of May.”

Another side effect of the smoking ban has been an increase in the number of smokers looking to quit.

Niebel said that since the implementation of the law, 5,000 people have enrolled in the Michigan Tobacco Quitline from May 1, 2010 to Jan. 31, 2011, marking a 71-percent increase over the same time period for the previous year.

Information on quitting smoking and a free printable Michigan Smoker’s Quit Kit are available by logging onto www.michigan.gov/tobacco or by calling the Michigan Tobacco Quitline at (800) 784-8669 (800-QUIT-NOW).

The hotline provides free telephone coaching for the uninsured and those with Medicaid and Medicare, along with free nicotine replacement medications for those who qualify.