Step Outside
California's Smoking Ban... Coming to a Club Near You?
By Michael Bertin, Fri., Feb. 13, 1998
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The San Francisco Chronicle, one of two dailies in the Bay Area beacon city, described the carnage on January 2: "In bar after bar it was pretty much the same scene - a few drinkers bellying up to the bar for a New Year's Day hair of the dog. And out on the sidewalk, a few more moping about as they puffed away."
By now you've heard the news: On January 1, 1998, smoking became illegal in bars in California.
Turns out that the law that prohibits smoking in bars - California Assembly Bill 13 - was actually passed back in 1994 as an occupational safety and public health measure. Seems that a California law dating back to 1973 prohibits any employer from occupying or maintaining a place of employment that is not safe and healthful.
In accordance with that law, California Assemblymember Terry Friedman proposed A.B. 13 for two reasons: first, "to reduce employee exposure to environmental tobacco smoke (ETS) to anything other than insignificantly harmful effects"; and second, to eliminate confusion and "hardship resulting from disparate local restrictions" (in other words, to simplify things by making it uniform statewide). The upshot of this was that bars are places of employment, so in order to protect employees from ETS, smoking was banned therein. The measure passed the California legislature July 7, 1994.
The law, however, did not take effect until January 1, 1998, because A.B. 13 kept getting suspended. On two previous occasions, amendments were passed that kept the bill from going into effect on hopes that the Environmental Protection Agency (EPA) or the Occupational Safety and Health Administration (OSHA) would adopt standards for reducing ETS. Essentially, California was trying to postpone the indoor smoking ban until some public health agency gave them concrete indoor air quality numbers so that business owners could then achieve those numbers by some means other than a complete ban (i.e. ventilation systems). A third attempt in 1997 to amend the legislation for suspension (this time until the year 2001) was defeated. So, as New Year's dissolved into a new year, smoking in bars became illegal in California.
And boy, are Californians pissed - at least the ones who smoke and go to bars to drink are, anyway.
It doesn't take a genius to figure out that if it happened in California it could happen anywhere. (Of course, it also doesn't take a genius to figure out that they do things in California that they don't do anywhere else in the world.) But does California's enacting such a law really make it easier for legislators in Texas to do the same?
Texas State Representative John Hirschi (D - Wichita Falls), who was instrumental in helping to pass Senate Bill 55 last year, at the time one of the toughest pieces of anti-tobacco legislation in the country, offered his well-worded answer: "I don't think there's any question that legislation that has passed in other states, particularly large states like California, are a model for the rest of the country and maybe deflate a lot of the arguments. I have heard of no movement to try to expand the Texas law to smoking in all public buildings like that, but a lot of the arguments would be that it would hurt business tremendously and places couldn't keep their doors open.
"Well, if that proves to be wrong in California, and the jury's out at this point because it's only been in effect for less than a month, but if those businesses survive without being harmed by that legislation, and again that's a question mark - nobody really knows because nobody's done it before - but if they stay alive and thrive with the `no smoking' provision, then it would obviously be easier to pass in other states, because you couldn't make the economic argument that it was going to destroy club business if it was passed in those other states."
Translation: Yes.
Hirschi, though, is dead right by focusing on the business arguments. The suspension producing amendments to A.B. 13 were passed to prevent businesses from having to implement what everyone figured would be a money-losing policy. The number thrown out by the office of California Assemblyman Edward Vincent, the man who proposed the failed third amendment to suspend A.B. 13, was 20%. He anticipated a 20% drop in local business. Of course, a spokesman for his office didn't say how that number was arrived at.
Without waiting on Californians for any hard evidence or hard numbers as to what the actual impact of such a bill might be, there are two places to look locally for hints as to what effects something like A.B. 13 would have here in Central Texas. And let's be clear about this: Right now, this is a completely hypothetical scenario.
First are restaurants, which have already been put through a smoking ordinance wringer. The Texas Department of Health distributes material that analyzes the impact of 100% smoke-free ordinances. Their studies claim that, "based on the best available evidence, 100% smoke-free ordinances have no significant impact on restaurant sales." It seems reasonable to infer, then, that businesses in Austin, which has a less stringent smoking ban (here, restaurants provide separate smoking and non-smoking areas), would be impacted less by current smoking restrictions. There are instances where that was not the case, however; the original ordinance in Austin banned smoking across the board in the AM and anecdotal evidence shows that many coffee shops were hit so hard they never recovered. Thus, that ordinance has since changed.
Yet, trying to figure out the real, long-term effects that a smoking ordinance like A.B. 13 would have on local bars simply by looking at data on restaurants is next to impossible for a very simple reason. Says Glen Garey of the Texas Restaurant Associations, "Any impact would be buried in the kind of growth we've had around here."
So much for getting help from the food service industry. Amazingly enough, though, we do have a real live lab-mouse of a test case in Austin - several years into an involuntary experiment to determine what effects a smoking ban would have on a nightclub.
On September 1, 1991, the University of Texas banned smoking indoors campus-wide. The Cactus Cafe is on UT campus. You do the logic. In line with what happened to many coffee shops, Cactus proprietor Griff Luneburg admits that the policy change did have a dramatic short-term effect on the place, which not only serves as a club and music venue at nights but also functions as a cafe during daylight hours.
"It wiped out the daytime," said Luneburg. "We opened at eight in the morning and a lot of faculty, staff, and students would be in here drinking coffee and plotting revolution. We had a very large foreign contingent and they just would smoke all day long."
While a new, "more holistic, cleaner bunch" eventually became regular daytime patrons, Luneburg acknowledges that it took a while to get the day business back. (He's not sure what became of the revolutionaries.) Nights, however, were a little different. According to Luneburg, the smoking ban at the Cactus "changed the atmosphere, but it didn't seem to hurt attendance at all." Whoa! Wait, that's not the party line of smoking advocates. That's not what Californians were and (still are) crying about. Common sense says that if a sizeable percentage of your clientele smokes, a smoking ban would drive off business.
That argument, though, doesn't draw a distinction in kinds of business. Bar sales at the Cactus did take a hit, which was offset by an increase in volume. Instead of 150 people a night coming in pre-ban, about 200 per were now showing up and paying cover. What the Cactus lost in alcohol it was making up at the door.
It's not a perfectly controlled experiment. The Cactus had an instant near-monopoly on the non-smoking market, and its exclusivity with that status might have helped bring in a sufficiently large number of people to help offset the bar losses. In other words, were a few more exclusively non-smoking venues to open, the Cactus would probably lose patrons to those venues and lose revenue accordingly. As it is, that crowd has only one safe haven to go to.
While the net effect has been a wash, bar sales were indeed hurt, and Luneburg readily admits, "The smokers are the ones that really go out and have three to five drinks in an evening, while the non-smokers tend to have one or two." He added that the Cactus has lost its after-show "hang-out" business - the people who linger and have a few more drinks even though nobody is playing anymore.
"Non-smokers don't hang-out," laments Luneburg. "When the show's over, those people split."
It seems silly to think that just hanging out would ever be economically significant, but this is largely what any potential fight is going to be over: whether smokers do indeed drink more and how business will be hurt if they can't smoke in the bar.
Liberty Lunch's Mark Pratz is a little less committal to the smokers-drink-more contention. "I don't smoke at all and I drink plenty," he quipped half seriously before speculating sans the chuckle. "I don't know if [patrons] drink more when they are smoking.... They probably go hand in hand, but whether they actually drink more when they smoke, I couldn't tell you."
Again, Austin is fortunate to have another lab-mouse scenario that gives somewhat of an indication as to what the smoker-drinker relationship might be in tangible dollar terms. On several occasions, the Continental Club has done two separate shows on one night - one smoking, one non-smoking. The annual Elvis birthday celebration that recently took place, for instance, designated the early show for non-smokers, while the later set was for designed for those who light up.
Based on the figures from those nights, Continental owner Steve Wertheimer corroborates Luneberg's stated correlation between drinking and smoking. "It's been my experience in the past that when we've done smoking and
non-smoking shows that the ring is bigger on the smoking shows," says Wertheimer, adding, "I'm talking $1,000 to $1,500 difference between what the first group imbibes versus what the second group does."
That notion is bolstered a little more with the knowledge that despite the take, and again counterintuitive as it may be, when the Continental does split shows like that it's the non-smoking show that sells out first. "Easily sells out" is how Wertheimer, a non-smoker who is nonetheless opposed to any California-esque legislation, describes it. In other words, even though more people want to go to those early shows, the later crowd (the smokers) still buys more booze.
Some of that can be explained away. For weeknight shows, people - whether they smoke or not - have jobs they have to be at the next day. Therefore, it's in their best career interests to be home and in bed by 11pm instead of, woo-hoo, out partying all night. Hence, there's a greater demand for the (early) non-smoking shows, that has little to do with booze or tobacco.
In fact, in any of these situations there are going to be variables that are uncontrollable, and might skew an analysis one way or the other. Late shows might do better for Wertheimer not just because smokers are volume drinkers, but also in part because people in general are more likely to drink later at night rather than earlier. The fact is that people go to bars to see music or just hang out, and many of them drink. A sizeable percentage of them also smoke. Legislation that meddles with this is bound to have some impact on people's behavior.
In California, that impact has excommunicated smoking patrons to the sidewalks. If you're a smoker, then, it's time to be afraid. Be very afraid.... just not right now. The reality is that such bans are not on anybody's immediate and local political agenda, and even if it were, it would be tough to push such legislation through right now.
Alfred Gilchrist, who deals with tobacco issues for the Texas Medical Association, averred that, "It's a pretty widely held view that if an issue is controversial, if it's difficult to get the votes to pass, then people are not likely to go back to the well again."
Correct. In addition, anti-smoking legislators can't afford to expend too much political clout on this one issue in a short period of time. So, if you smoke, there's no need to get your butts inflamed worrying about the immediate future, because there are at least two good reasons to think that anti-tobacco hysteria is on hiatus for a little while here in Texas.
First, Texas recently settled with the tobacco industry to the tune of $15 billion. Second, and even more importantly from a legislative standpoint, last year Texas passed Senate Bill 55, which as of January 1, 1998, is now fully in effect. Commenting on that bill, Gilchrist noted, "My experience has always been once you get a big bill and make progress on a significant issue the feeling [of lawmakers] is that, `We've done that. Let's give it time to work.'"
Senate Bill 55 will need time to work, because it deals primarily with smoking and kids. Among its major provisions: It penalizes minors for purchasing or possessing tobacco, including fines and possible suspension of driver's license; it prevents the distribution of free samples to minors; it penalizes clerks who sell cigarettes to minors; it bans outdoor advertising within 1,000 feet of a church or school; and it does away with vending machines in all areas accessible to minors.
Essentially, lawmakers are trying to protect kids and prevent tobacco companies from targeting them - and with good reason. From 1992 to 1996, tobacco use by eighth-graders in Texas jumped 32.1%, and among 10th-graders it jumped 35.1%. The thinking by lawmakers here is that if you prevent them from becoming smokers as kids, then they won't become smokers as adults. If they do, it's because they made the decision as a responsible adult. Plus, kids under 18 don't vote, so you can impose whatever laws on them without estranging your constituency.
Lawmakers are not going after adults. Even Hirschi, who, again, was one of the leading Texas House members behind Senate Bill 55, makes the point clear: "I don't think most people - most anti-tobacco militants - oppose a person's right to smoke. What they do oppose is the ways the tobacco companies try to addict our kids, which they've targeted their advertising to and fought legislation that would restrict their ability to addict kids."
The exemptions to S.B. 55 bear out Hirschi's claims that legislators in Texas are not out to get smokers. For example, you can still have a cigarette machine in a bar, because minors can't go in there. So while lawmakers have tried to protect kids in some way, it seems they have also been accommodating smokers' needs to smoke when they drink. Remember, though, California's A.B. 13 was not some punitive measure against smokers. It was passed as a public health issue not to protect bar patrons from what many of them do anyway - smoke - but to protect the employees from having to deal with potential effects of secondhand smoke (also called environmental tobacco smoke).
This is where things get amusing and the discussion gets, oh, spirited. Common lore has it that there's no solid scientific evidence linking ETS to cancer or disease or health problems generally. Looking at the facts, however, that's not the case at all. In fact, it's quite the opposite.
Environmental tobacco smoke is one of only 15 substances classified by the EPA as a Group A carcinogen. That designation is given to substances that have provided enough evidence to suggest they cause cancer in human beings. Other Group A carcinogens include asbestos, radon, arsenic, and benzene. Of those 15 pollutants, only ETS - and this is verbatim from the EPA - "has been shown in studies to cause cancer at typical environmental levels." And of the 4,000 chemical compounds identified in cigarette smoke, 43 are known to cause cancer in humans or animals. In fact, five organizations - the EPA, OSHA, the U.S. Surgeon General, the National Research Council, and the National Cancer Institute - have all concluded that ETS causes lung cancer.
Equal time interests were granted, but the Tobacco Institute in D.C. failed to return phone calls to give their official position on secondhand smoke. For what it's worth, Tobacco Institute spokesperson Brennan Dawson was quoted in the Wall Street Journal (July 23, 1992) as saying the data presented by the EPA was "based on intuition," then added, "That's not science."
The EPA's data came from 17 studies that were based on the level of exposure to ETS, in which every study found an increased lung cancer risk among the subjects exposed. Moreover, nine of the 17 studies were statistically significant, and the probability of nine of 17 studies showing statistically significant results merely by chance is about 1 in 10 million. Intuition? Probably not. But if, as a public health measure, the law is silly, it's not because ETS isn't health-threatening, but rather because ETS accounts for only about 3,000 lung cancer deaths a year.
So, if you're a concerned smoker, the question to ask is probably something like this: California is trumpeting this as a public health measure, but how many lives are they saving? Some cut of 3,000 is necessarily the answer. Pardon the cold utilitarian analysis, but that's really a fractional number of lost lives.
It's even sillier when you think about the fact that a significant number of employees in the hospitality industry smoke to begin with. For the population in general, the percentage of smokers in the U.S. during the Nineties has remained between 20-25%. In the most non-scientific of polls, club owners locally, to a man (or woman), pegged the number of their smoking employees at about 50% of their staff. Point being, it's probably safe to say that of that cut of 3,000 California workers, at least another quarter of those people, and perhaps higher, don't need to be protected from second hand smoke because they already smoke anyway.
That, however, is not what people on the left coast are complaining about. The basic beef of smokers is along the lines of: It's a bar. We've been made social pariahs, but this is our territory. The bar is the public place where we can go to smoke. From a kind of historical standpoint, sure.
As every other place to smoke has been made not only taboo but illegal, yes, there is very much a de facto legitimacy to the bar-as-smoker-territory claim, because they've always smoked there. Of course, if you are going to take that stance, then for the sake of consistency you should probably give your house and the land it's on back to Native Americans as they have an analogous claim.
But in a general sense having nothing to do with claims based on temporal priority, "smokers rights" reasoning is just plain specious. You're right to swing your fist ends where someone else's nose begins. Your "right to smoke" is a threat to someone else's health. You can't go into a bar and dump a barrel of benzene on the floor. Hell, they shut down entire schools in this country when tiny bits of asbestos are found in buildings - and asbestos accounts for all of 15 cancer deaths a year, 1/200th of what ETS causes.
The heretofore unknown armchair constitutional scholar Mark Pratz backs that idea. "The smokers' claims are no more valid than the non-smokers' claims, even though the money made from the smokers may be better for the bar," he says. "You have just as much right to clean air. I think legally and constitutionally it's indefensible. I don't believe that smokers have a right to do something that can hurt other people."
The easy solution to that is to say if you don't like smoke, stay home. That may work to some extent for just regular old bar patronage, but night life in Austin is largely predicated on the enjoyment of live music. The problem with the "If you can't stand the heat" directive is that you can't stay home and see the band.
Finally, Pratz offered up a financial-cum-physical argument against the territorial pissings. "I'd like to hear [smokers] flesh that argument out a little more - how the bar is their turf and their ground - unless they would help me with the rent check...
"I don't want to piss them off, and I don't want to discourage them from coming to the club, but I don't know that people go to clubs to smoke. Let's face it. It's an addiction - it's a habit. My dad is an addict. My brother is an addict. I used to be one. I know what it's like. You don't just go to a club to smoke, you get out of a car to smoke, you leave a public building to smoke, you stand smoking out in front of places when it's 23 degrees because you smoke and you're hooked.
"I understand their sentiment, `We want at least one place where it's not socially unacceptable to smoke cigarettes,' but I would like to see income taxes done away with too. You know."
A good capitalist would hope that the market would just take care of this. If ETS were really a threat, then smoky places would just lose business as people stopped tolerating it. That might cause a club's business to drop enough to where they might do something to counter that. Several venues have taken preemptive measures in that direction. For instance, the Continental has a "negative ion box that [Wertheimer] spent $800 on that is supposed to help keep the air clean." The Ritz Upstairs has installed similar smoke-eating devices.
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That A.B. 13 happened in California does make it possible that a similar smoking ordinance could be passed here in Texas. When? Anybody who knows anything in this arena doesn't seem to think it's looming on the horizon, not the near horizon, anyway. As a caveat, though, remember that this is the city that nailed Timothy Leary for lighting up at the airport. Austin is also the city that passed a law mandating all bicyclists wear a helmet, although the law was later amended to free adults of that requirement. That's not to imply anything or alarm anybody, but you know, stranger things....
In any event, there may yet be a happy ending for smokers in California. At the end of January, Vincent sent another bill postponing A.B. 13 going into effect to the floor of the California Assembly. This time it passed. It heads to the Senate in a few weeks, and if it passes there (a big if), another exemption of A.B. 13 - this one for two years - will go into effect.
Even if the legislation is amended, though, what has happened in California has to make smokers fretful - no matter what state you live in. There may be a bit of solace for you, however - in a couple of things.
First, current legislative climate be damned, big tobacco is still looking out for you and taking care of its Texans in Washington. In the 1996 election cycle, tobacco industry soft money and PAC contributions totaled just under $10 billion, almost the amount for the '92 and '94 election cycles combined. State senators Kay Bailey Hutchinson and Phil Gramm ranked 9 and 12 respectively in the Senate's Hot 100 recipients of contributions from tobacco industry PACs.
Second, it might also comfort you to know that Terry Friedman, the person responsible for the California law, is no longer in office in the California State Assembly.
