Arbitrary Nature of Smoking Ban Leads to Confusion, Lawsuit

Four Fayetteville (Arkansas) businesses have filed suit against the city, atttempting not only to cease enforcement of the restaurant smoking ban, but to collect $100,000 in damages to reimburse them for business expenses they incurred in complying with the new law, only to later find out that the interpretation of the law changed and they were no longer in compliance.

The problem arises from the Fayetteville City Council's inability to decide whether secondhand smoke is a public health hazard severe enough to warrant the use of the city's police powers to eliminate the hazard, or whether it is not. Fayetteville decided to ban smoking in restaurants, but to exempt bars. But the problem is that the definition of bar in the ordinance has been interpreted in different and changing ways.

In the ordinance, bars are defined as establishments where the sale of food is "incidental" to the sale of alcohol. Originally, this was interpreted by the city as meaning that if 70% or more of sales were attributed to alcohol, an establishment was a bar and thus exempt from the smoking ban.

Apparently, a number of "restaurants" changed their menus and the nature of their establishments such that they would start deriving 70% of their revenues from alcohol and thus would be able to allow smoking. And apparently, the cost of making this change was substantial.

Now, however, the city apparently wants to change the definition of restaurant to include any establishment in which food is "prepared, warmed, or cooked," regardless of the percentage of revenues derived from selling that food. This change would mean that the "restaurants" which changed their menus in order to become "bars" in order to allow smoking would now be re-defined as "restaurants" and could no longer allow smoking. They would have wasted their money, and for this reason, they seek to reclaim the money spent on the changes they made.

The Rest of the Story

To me, this story highlights the rather arbitrary and capricious way in which public health is being practiced in terms of the regulation of smoking in restaurants and bars and the lack of any real principle on the part of policy makers and anti-smoking groups in enacting, or supporting policies that are applied unequally to different businesses.

When occupational health is concerned, I think that businesses should be treated equally. Differences in treatment should be based on public health concerns or some other substantive concern, not merely on an arbitrary factor that is not related to public health, such as whether the establishment warms its food before serving it or does any cooking.

By the new definition being implemented in Fayetteville, if a bar serves soft pretzels without heating them, it is a bar and can allow smoking, but if a bar serves heated soft pretzels, it is a restaurant and cannot allow smoking.

What possible public health rationale, or any rationale, is there behind such a distinction?

This story reminds me of the original Rhode Island smoking ban, in which a small bar that serves complementary lupino beans with its drinks was exempt from the law but a similar bar that charges for those lupino beans was subject to the law. And in which a small bar in South Kingstown that serves pre-packaged and heated sausages had to ban smoking but in which a similar bar in Newport that cooks up its own sausages could allow smoking.

If I were a company that sold pre-packaged, pre-cooked sausages, I would jumping for joy right now. Because there is going to be a huge market for my products down there in Fayetteville. By selling my products, bars can still satisfy their customers' desire for sausages while drinking beer, smoking, and watching the Razorbacks and they will be in compliance with the city smoking law.

But bars which want to cook up their own sausages in Fayetteville are no longer bars - they are now going to be considered restaurants and cannot allow smoking, regardless of whether sausage is the only food they serve and if they only derive 0.1% of their sales from kielbasa, bratwurst, and braunschweiger.

Of course, this assumes that bombarding my products with microwave radiation for 30 seconds does not constitute "warming" them. If so, then a bar that sells my products is actually a restaurant.

My point here is that the discussion is not about public health. Public health has left the picture entirely here. The debate is about the difference between pre-cooked and cooked food, heating in a conventional oven versus heating in a microwave, and calculating what percentage of your sales are derived from food versus alcohol.

People can take whatever side they want on the smoking ban debate, but I hope we can all agree that this whole debate shouldn't boil down to a determination of whether braunschweiger needs to be heated in an oven or in a microwave in order to allow customers to enjoy a smoke while watching their 'Hogs.