City tries to smoke out bars
In first test for ordinance, several bars face court dates
By Asher Price
Tuesday, December 06, 2005
At Clicks Billiards, customers are not encouraged to smoke, but they're not exactly discouraged, either. There are no ashtrays in the club, and there's a "no smoking" sign on the front door. If patrons do light up, they are asked to sign a note that reads, "I have been informed that smoking on Clicks premises is NOT permitted, and that if I smoke, I must leave." But the note also says, "It is house policy that if you do not leave, we will not force you to leave, nor will we call the police."
In the first major test of how sharp the teeth of the city's new no-smoking rules are, Clicks and another bar, Mickey's Thirsty I Lounge, face criminal misdemeanor charges in municipal court on Dec. 14. A third establishment, Rack Daddy's pool hall on Riverside Drive, has also been charged with a misdemeanor, but no court date has been set.
Greg Robbins of Austin lights up as Richard Hernañdez, left, and Jeff Roberts smoke Friday at Mickey's Thirsty I Lounge on North Lamar Boulevard. Mickey's will face criminal misdemeanor charges in municipal court after the city says it violated the no-smoking ordinance.
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If convicted, the bars could be forced to pay fines of up to $500 for each citation they face, said Bob Flocke, a spokesman for the Austin/Travis County Health and Human Services Department. According to city records, Clicks' two locations, on Oltorf Street and North Lamar Boulevard, have received nine citations since Sept. 1, when the smoking ban began; Mickey's was given one citation; Rack Daddy's, three.
The citations at the two Clicks locations include failure to remove ashtrays and failure to take reasonable steps to prevent a person from smoking, according to Carol Sahm, a compliance coordinator with the department's environmental and consumer health unit.
Lawyers who have fought the ordinance said the municipal court hearings are another opportunity to challenge the underlying lawfulness of it.
"This is a test of the policy," said Marc Levin, a lawyer who is advising Clicks. "There's an opportunity to challenge the constitutionality of it."
On Thursday at 2 p.m. there was precisely one patron sitting at the bar at the south location of Clicks, a well-lit, large pool hall, and he was smoking. He had signed the policy, and a waitress passed him a plastic foam cup, ostensibly to put out his cigarette. He tapped the ash from his Marlboro Light into the cup and smoked some more.
"This is the only bar I'll come to now," said Michael Lewis, the customer and a former bartender at Clicks. "It's about ambience."
Clicks invested $70,000 in a specially ventilated room and another $23,000 in an air filtration system in a bid to gain an exemption before the ordinance went into effect, but according to Dale Bearden, a manager at the North Lamar branch of the pool hall, the city said that the room was installed too late and that the filtration system is inadequate. (Flocke said Clicks did not get the permit to create a specially ventilated room in time for the exemption.) The room remains largely unused.
"I realize it's a law, but I just don't see it as a just law," Bearden said. "It's not a smoking issue; it's a freedom of choice issue."
He said that shortly after the smoking ordinance went into effect, the bar's sales fell by 31 percent. Then, a month ago, after a federal ruling that largely upheld the smoking ban, Clicks shifted gears and began asking smokers to sign the form.
Nick Alexander, the president of Clicks, which is headquartered in Dallas and has 21 pool halls across the country, said the form was drafted with an eye to testimony given during last month's federal case. He said the city testified that to comply with the ordinance, a bar or pool hall had to put out no-smoking signs, pick up ashtrays and ask patrons not to smoke. He said city officials also said businesses should follow their own house rules when dealing with patrons who refuse to put out cigarettes.
"According to our house rules, we do not let people sit on our pool tables, but if they do, we're not going to physically remove people or call the police," he said. "We're complying with the ordinance as set forth via the testimony" in the courtroom.
Sales are still off 19 to 20 percent. The club has been in the red since September because the smoking ordinance has kept customers away, Bearden said. In the 17 years he has been a manager at Clicks, it had lost money in only about three months, largely because of end-of-year discoveries of accounting errors, he said.
"People are either driving farther to go to the outskirts of the city where they can smoke, or they're staying at home," Bearden said.
According to mixed beverage tax records kept at the state comptroller's office, the smoking ban does appear to have had an effect on business, at least at Clicks. The two Clicks branches paid the state $19,144.30 in mixed beverage taxes in August. The mixed beverage tax is 14 percent of mixed beverage sales. The next month the two Clicks branches paid $16,349.34 in mixed beverage taxes.
But during the same reporting period, mixed beverage sales appear to have increased at the Rack Daddy's location, rising from $8,205.40 to $8,312.22.
At Mickey's Thirsty I Lounge, about "99.9 percent of the customers are smokers," said Mickey Leathers, the bar's proprietor. He said his staff has a hard time asking them to put out their cigarettes because "they're pretty mean."
The Austin ban, which passed in May with 51.8 percent of the vote, prohibits smoking in most public places, including most of the city's bars and restaurants. It has more or less withstood attempts by bar owners to keep the ban off the ballot in the first place and repeal it once voters approved it. Bar owners did persuade a federal judge in October to reduce fines from $2,000 to $500 and prevent the city from being able to revoke licenses of businesses without judicial review.
As of Nov. 28, 96 complaints against establishments had been called in to the health department, and investigators decided that 54 of those complaints were founded.
"Generally speaking, the first violation we'll work with them, and the second violation we'll work with them," Flocke said. "After that, they'll get a citation."
The bars that face charges are "habitual violators," he said.
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