Without money or manpower, how will counties enforce the smoking ban? | North Carolina | Indy Week
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Without money or manpower, how will counties enforce the smoking ban? 

Waiting to inhale

Click for larger image • Patrons smoke with water pipes, or hookahs, filled with flavored tobacco at Hookah Bliss. Owner Adam Bliss is fighting the state's new ban on smoking in bars and restaurants, which exempted cigar bars but not hookah bars.

Photo by Jeremy M. Lange

Click for larger image • Patrons smoke with water pipes, or hookahs, filled with flavored tobacco at Hookah Bliss. Owner Adam Bliss is fighting the state's new ban on smoking in bars and restaurants, which exempted cigar bars but not hookah bars.

Smoke drifts upward and disperses against the black pressed-tile ceiling at Whiskey, a dimly lit downtown Durham bar where the leather furniture is tufted and the cherries are soaked in bourbon. A man reading a book holds his cigarette while saddled atop a stool. Glass ashtrays are spaced every few feet along the bar rail.

Three weeks after the statewide ban against smoking in restaurants and bars went into effect, Whiskey appears no different than it did on opening day six months ago.

It is one of several businesses across the Triangle learning how the smoking ban, signed into law last May, affects them. Health professionals, lawmakers and many citizens laud the statewide snuff-out, which could help curb serious heart and lung disease and smoking-related cancer. But their enthusiasm is hampered by financial and procedural hurdles: The ban is based on citizen complaints. It does not cover all bars and restaurants, and enforcement is inconsistent and varies among counties.

The $281,000 budget—apportioned among all the county health departments in the state—can't pay for enough staff to enforce the law. The Legislature appropriated no money for enforcement.

"In tight budget times, that would have been challenging," Sally Malek, manager of the N.C. Division of Public Health's Tobacco Prevention and Control Branch, says.

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What's the law?
• Who does it apply to?
• Who's exempt?
• How is it enforced?
• Who funds it?

Who's receiving complaints?
• By county
• By city
• By business

The effectiveness of the ban largely hinges on the public to observe and report alleged violations via a phone hotline (1-800-662-7030) or an online form (www.smokefree.nc.gov) at the State Division of Public Health's Tobacco Prevention and Control Branch. County health departments also can file and investigate complaints.

Statewide, there were 520 complaints—most of them anonymous—from Jan. 2, when the ban went into effect, through Jan. 26. A caller can make multiple complaints in the same report.

Four complaints involved Whiskey. (A reported complaint is not a violation until it is validated by the local health department.)

"Cigars and cigarettes were smoked by many without management intervention," reads an anonymous complaint filed Jan. 11. Another filed on Jan. 16 noted, "The volume and density of smoke in the establishment made it impossible for the owners not to have been aware of the violation."

Each week, the Tobacco Prevention and Control Branch's 15-member staff culls and distributes the complaints to local health directors, who then send them to a designated department within county government. Wake, Durham and Orange send them to environmental health, which is already charged with restaurant inspections. Those officials then send a form letter—written by state officials—accompanied by a synopsis of the specific complaint.

The letter to Whiskey reads, "These allegations, if true, would constitute violations of the new NC Smoke-free Restaurants and Bars Law. This is not a notice of violation. Instead we are taking this opportunity to provide you with information to help you ensure that your establishment is in compliance with the new law."

The correspondence goes on to caution that after two future warnings, the bar can receive a $200 fine per violation.

"The intent was the change behavior, not punish behavior," says Rep. Deborah Ross, D-Wake, who co-sponsored the legislation, House Bill 2.

State and local officials are using this method, in which citizens patrol and the health department investigates, because they believe the public widely supports the ban. More important, health departments don't have the resources to snoop for smokers and write fines each day.

"The public is the one that's really doing the enforcement here in a lot of ways," says Sue Lynn Ledford, Wake County community health director. Some bar owners are reporting competitors, Ledford says.

"We were told we're not the smoking police," Durham County Health Director Gayle Harris says." We are there to educate and expect that people will comply."

At Hookah Bliss in Chapel Hill, a steady stream of regulars enjoy the bar's slow pace, its experienced staff and homey atmosphere. The small lounge, which holds just 22 people, sells 61 flavors of shisha—flavored tobacco, glycerin and molasses—along with microbrews, meads and organic hard cider.

Owner Adam Bliss, has become the most visible and outspoken critic of the ban, as he continues to allow them to smoke the communal water-cooled pipes. He posted the required nonsmoking sign, which cites the law and gives the hotline and Web site info, but added his own editorial commentary:

"No cigarettes, cigars or pipes," he wrote on the sign displayed in his front window. "Hookahs are still OK."

Legislators and the Orange County Health Department disagree, despite Bliss' yearlong opposition to the law. Bliss said he met with bill sponsors last year as the law was being debated, seeking an exemption for hookah bars that want to serve alcohol. He lobbied his representatives, arguing that his business—like cigar bars, which aren't subject to the law—is a legitimate tobacco establishment. And, Bliss contended, since hookahs are vaporizers and don't contain a lit tobacco product, they don't create secondhand smoke.

When those efforts failed, he decided to ignore the ban. He continues to order and sell shisha and he's rallied hookah bar owners across the state to fund a legal defense, calling the ban unfair and uneven.

He encouraged the Orange County Health Department to cite him with a violation, even inviting officials to do so through the press.

Bliss succeeded. On Jan. 8, the state received an anonymous complaint that read, "This establishment is flagrantly violating the law and the owner seemed a bit proud of it when we inquired about it. He said he was just waiting for a complaint and his exact words were, 'I've never had such a hard time getting in trouble before.'"

Orange County followed up with an educational letter and a visit. Bliss intends to sue the county.

"Now we've got our ammunition," Bliss says, the letter in hand. "Now we're going for it."

Orange County Health Director Rosemary Summers says if the department continues to receive complaints, it will issue warnings and fines to Hookah Bliss until it complies. According to the law, violating the ban isn't a criminal offense, though Summers says habitual violators could be subject to an injunction.

"They are dealt with no differently than a restaurant or a bar," says Tom Konsler, Orange County's environmental health director. "It just happens to be a bar owned by someone who's decided not to comply with the law."

Bliss isn't budging, either. "We're just going to keep kicking and screaming and try to raise enough money to stay open," he says.

Click for larger image • George Hinely, left, and Rick Brogden, right, relax outside Marcom's Tavern in Raleigh. Since the smoking ban went into effect in early January, patrons who want to smoke must do so outside. - PHOTO BY JEREMY M. LANGE
  • Photo by Jeremy M. Lange
  • Click for larger image • George Hinely, left, and Rick Brogden, right, relax outside Marcom's Tavern in Raleigh. Since the smoking ban went into effect in early January, patrons who want to smoke must do so outside.

In Raleigh, Kathy Marcom holds a beer and cigarette in either hand as she stands on a wooden ramp outside her bar's back door.

"We are complying, but I'm not happy," she says.

She owns Marcom's Tavern, a members-only watering hole with paint-splattered acrylic tables, tan tile flooring and glass doors covered by maroon curtains. There's a jukebox, karaoke, darts, billiard tables and memorabilia from N.C. State, Duke, UNC and Dale Earnhardt Jr.

Most folks are regulars who followed Marcom, a long-time Raleigh bartender, to her new place two years ago. She says a majority of the 427 members are smokers. So are seven of the bar's nine employees. They kept smoking inside for two weeks after the ban, but stopped after the state received 10 reports and Wake County Public Health Educator Ronda Sanders visited the bar twice and filed a violation.

Marcom says she was confused by educational materials on the state's Web site, adding that she thought she wasn't subject to the law because she didn't have a health inspection. She's contacting a lawyer about the mix-up and considering going nonprofit to earn an exemption.

"We don't serve food. We don't have glasses," she says. "I'm a private club, but I don't meet the state's definition of a private club."

She doesn't have the space to build a patio, so for now patrons go out back and drop their cigarette butts in a tin can or outside the front door in the parking lot of a strip mall where they can't take their drinks.

"You come to a bar to smoke and drink," she says. "People are missing the music. They aren't drinking as much. People who sit at bars, they are chain-smokers. The pace has slowed down."

She's also had to quit selling cigarettes, which generated $500 in revenue a month.

Health departments, not police or Alcohol Law Enforcement, are in charge of explaining the law's nuances to business owners like Marcom and dealing with recalcitrant owners such as Bliss.

Legislators and bill proponents see smoking as a public health issue rather than a crime. And there is little money for enforcement. Lawmakers didn't appropriate any funds as part of the law because, as Rep. Ross of Wake County says, "Every time you tell someone that they have to do something, you shouldn't have to give them money to do it."

"The assumption is that people are going to comply," she says. "It's not like you are going to have a bazillion violations out there. Therefore, it wouldn't cost money for the few violations that there would be."

The State Division of Public Health did receive an $81,000 grant from the Americans for Nonsmokers Rights Foundation, a California-based national lobbying group, and also pulled $200,000 from the state's Health and Wellness Trust Fund, money set aside from a settlement agreement with tobacco companies. However, the grants stipulate those funds must be used only for education and not enforcement.

"There really isn't any funding for enforcement activities that is coming from the state to the locals, but they have been very committed to the implementation of this law," Malek says. "We're hoping that education alone will bring 80 to 90 percent of businesses into compliance, and there won't be as much needed for enforcement."

click to enlarge The state spent $38,200 on coasters—about 2 cents each—and required counties to distribute them to bars and restaurants.
  • The state spent $38,200 on coasters—about 2 cents each—and required counties to distribute them to bars and restaurants.

The money was apportioned across the 85 health departments in the state (a few counties share departments) based on the number of restaurants and bars in their jurisdiction. Each group got a pot of money, minus the cost of printing drink coasters advertising the ban. The state used a portion of the grants to build its smokefree.nc.gov site, hold webinars on implementation strategy and send educational packets to the 24,000 restaurants and bars in its database.

Wake received $18,718 after paying its $1,512.50 coaster bill. Durham got $6,517 and $1,512 of coasters, while Orange has $2,763.60 to use and spent $450 on the cardboard drink mats.

County health directors say most of the money they garnered will pay for advertising in local newspapers.

Durham is using some of it to hire a college intern who will travel across the county with information packets for convenience stores and other businesses the state's database may have missed. The intern won't generate complaints, however, and will be paid between $10 and $15 an hour for the semester-long project, Harris said.

Wake has requested more money to hire a temporary person. "There's no one that's full time (on the ban)," Ledford says. "It's a portion of multiple folks' responsibilities. The biggest challenge for us is just geographically; we are a large county.

Even before last summer's legislation, there has been a statewide and a national trend toward voluntarily eliminating smoking in restaurants. Places like Tyler's Taproom in Durham and Breadman's in Chapel Hill went smoke-free ahead of the ban, in response to customer comments. Health department and elected officials say public support makes it easier to implement the law.

"Tons of people have told me how much more pleasant it is to go to bars and restaurants," Rep. Ross says.

They point to research linking secondhand smoke to cancer and heart disease. They tell anecdotes about visiting once dank and smoke-filled eateries that had a waiting list for nonsmoking and open seats in the smoking section. These places, they say, are now pleasant and full of customers.

Those are the scenes lawmakers envisioned when they passed the ban last summer as lung cancer survivor and House Majority Leader Hugh Holliman (D-Davidson), succeeded in his four-year push for the law.

Thomas Carr, national policy manager for the American Lung Association, says North Carolina is taking "a monumental step forward" in becoming the 29th state to abolish smoking in restaurants and the 24th to do so in bars.

"It's an easy solution to a known health hazard, secondhand smoke," Carr says. "It just eliminates it completely. It works."

It doesn't work everywhere, though.

A New York Times story published in December found that the seven-year-old citywide smoking ban is ignored in exclusive nightclubs and neighborhood bars. The story pointed to a USA Today report that identified businesses in Chicago, Honolulu, Ohio and Virginia that refuse to adhere to anti-smoking laws.

"Early on, it's best if you take a strong approach to enforcement and really make sure the law is being followed," Carr says. "Public support increases after these laws take effect, once people see the results."

Carr said states generally achieve between 85 percent and 95 percent compliance with smoking bans.

So far, area health officials say the complaint-driven process is working, though there are varying benchmarks for success. In Wake, Ledford says the fact that her county received 50 complaints—9.6 percent of the state total—indicates that news of the ban has reached residents and that they are willing to report violations. In Durham and Orange, health department leaders say their comparativelly low number of complaints, eight and 19, respectively, show that restaurants are complying.

"I don't think anyone now can tell you what kind of compliance rate there is out there," says Rep. Grier Martin (D-Wake), another bill co-sponsor.

Summers said the numbers will fluctuate during the educational phase of the law.

"We're in that sort of educational curve of 'Yes that does apply to bars and it applies to you,'" she says. "We'll see it go up and down for several months."

Enforcement also varies by county. Malek says her office worked with the North Carolina Association of Local Health Directors and the UNC School of Government to try to standardize enforcement, but she admits that there is some leeway.

The state provides recommendations about how many educational letters to send before the warning process and fines are enforced, but the health department isn't bound to them.

"The law specifies that you have to have two confirmed violations before you can fine someone, but beyond that is it at discretion of health director the way the law is written whether the fine is enforced or how many visits are allowed before you fine someone," Summers says.

In Durham, owners get two educational letters, two warnings and then a fine. In Wake, it's one educational letter before the two warnings and fine.

"It's really a pretty simple law, and compliance really rests on the owner and the manager of the business," Malek says. "All the owner or manager of the restaurant or bar has to do is post the required signs at a visible location, remove all ashtrays and if people light up in the enclosed spaces, ask them to put it out or take it outside."

But as Whiskey, Hookah Bliss and Marcom's Tavern show, exemptions in the law are confusing. Cigar bars and private, nonprofit clubs get a pass. Tobacco shops that don't serve alcohol are OK. So are film production sets in which actors smoke as part of the performance. That led Juggling Gypsy, a Wilmington hookah bar, to buy a webcam and stream video of patrons puffing at www.thesmokingshow.com.

State officials say they're confident that bars and restaurants will comply once they understand the exemptions.

"What we've learned from other states is there tends to be a flurry of activity for the first two to six months and everything settles down and it's accepted," Malek says.

Whiskey owners are trying to officially become a cigar bar, which would exempt them from the ban. They expect to hear back from the state by the end of February.

To get the exemption, Whiskey must prove that 60 percent or more of its quarterly gross revenue comes from alcohol and 25 percent or more comes from cigars. They also must have a humidor on site and only allow people 21 and older to enter the bar.

A sign on the front door says the bar is open to members-only ages 23 and up.

Whiskey Owner Rhys Botica says he is reluctant to discuss the ban because it is controversial. However, he says he'll convert his business to nonsmoking if he doesn't earn an exemption.

That looks likely, though. "We've already been to Whiskey," says Marc Meyer, Durham County Food and Lodging supervisor. "They have a humidor. They sell cigars. They're in compliance. They just need to fill out this paperwork."

As the evening wears on at the Whiskey, a group of patrons arrives and a man lights a thick, stout cigar, puffing rapidly until the tip turns orange.

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