Smokey and the Bandit

If the stronger smoking ordinance prevails at the ballot box May 7, the city will have until Sept. 1 to determine the parameters of the ban's enforcement. In other cities, enforcement has been somewhat problematic and some bans have even given rise to outlaw establishments or "smoke-easys," bars and clubs that effectively ignore the new laws and continue to permit smoking – creatively in some cases.

Currently, the Austin/Travis Co. Health and Human Services Department has enforcement jurisdiction over smoking regulations. HHSD spokesman Bob Flocke said, "We don't know if [the proposed ban] will ultimately be our responsibility." He says his office isn't addressing enforcement issues yet, adding, "These are administrative details that can't be worked out beforehand."

Austin Police Association President Mike Sheffield is not looking forward to the ban's enforcement. "Ultimately it is something the APD will be tasked with. It is our job to enforce the law, but this is going to be a drain on our resources." Even if jurisdiction does fall to Health and Human Services, Sheffield says, "They would have to hire a lot of people to cover the entire city." He added that he doesn't believe the Health Department has inspectors available after 5pm. "Calls will come to 911, people will expect timely responses, and the burden will fall back on us should the ordinance pass, regardless of what people say."

Robert Johnson, marketing and promotions director at New York City's Knitting Factory, said a number of bars in New York have turned a blind eye to the ban since its passage in early 2003. These smoking speakeasies, he says, "do a little more business than the places that follow the rules." It's widely known the enforcement inspectors get off duty at 11pm, while bars stay open until 4am. Soho bar owner Amy McCloskey said Mayor Michael Bloomberg's statement this year that the city is at 92% compliance with the ban is "complete bullshit," and that enforcement is particularly bad in the outer boroughs, like Brooklyn and Queens.

In November, The New York Times reported that Long Island pub owner Jack McCarthy, president of the Suffolk County Restaurant and Tavern Owners Association, refers patrons who wish to light up to the "no smoking" signs and tells them that New York State law forbids smoking in taverns. If the patron still wants to take his or her chances – given that citations under New York's smoking ban are written to the individual offender, not the bar owner – he'll provide a plastic cup filled with water to use as an ashtray. When McCarthy and three other pub owners were fined $650 each by Suffolk Co. for their laissez-faire approach to the smoking ban, they fought back and had the fines overturned in state court on the grounds that requiring bar owners to be responsible for policing the ban amounts to "an onerous, substantive enforcement requirement that the law itself does not impose." The decision prompted talk of a smoking ban repeal, but none has yet materialized.