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Alexandria's End Run on Public Smoking
City Wants to Use Zoning Laws to Make Eateries Tobacco-Free

By Annie Gowen
Washington Post Staff Writer
Thursday, March 1, 2007

Frustrated that the state legislature failed to ban smoking in bars and restaurants, Alexandria officials have come up with a maverick plan of their own that would prohibit smoking in all new eateries and make it more difficult for existing establishments to allow people to light up.

The unusual proposal would use the city's zoning authority to mandate smoke-free restaurants.

If successful, Alexandria would become the first jurisdiction to bar restaurant smoking in Virginia, where the state legislature severely limits local authority. That means individual governments do not have the power to institute outright smoking bans in restaurants and bars, such as those adopted in the District and several Maryland jurisdictions.

So Alexandria has decided to use its limited powers to achieve the same result.

"This is something we all wanted," said Mayor William D. Euille (D). "It would be nice if the state would mandate and make it happen. But obviously they're passing the buck on this . . . so we need to move forward to do what we need to do, and we found the loophole to do it."

Euille said the city's proposal was a result of "creative, outside-the-box" thinking.

Alexandria would seize control of the smoking issue with such mundane tools as use permits. When a bar or restaurant came to the city to request a permit, the city would require it to be smoke-free before granting the permit. Restaurants that have permits must agree to go smoke-free in three months or risk future restrictions or even closure.

The state legislature evaluated several proposals to restrict smoking in public places this year -- always a difficult sell in a tobacco state -- and ended up with a measure that requires restaurants to post signs if they allow smoking.

Health advocates hope that Gov. Timothy M. Kaine (D) will amend that bill to ban smoking in restaurants altogether, but even if he did so, such an amendment could have difficulty winning approval in the House of Delegates.

The city's proposal won praise from anti-smoking advocates yesterday, even as others who have watched the smoking battle unfold in the legislature privately expressed doubt it would withstand a legal challenge.

"This is a brand-new approach to me," said Teresa Gregson, a lobbyist for the American Heart Association in Richmond. "I haven't heard of anybody using their zoning powers. I like it. It stirs up trouble and throws a whole new mix in the pot."

In a memo, Alexandria City Attorney Ignacio B. Pessoa wrote that if other jurisdictions protect residents from the dangers of secondhand smoke, while Alexandria does not, the city is likely to suffer an "economic disadvantage." Thus, the city is within its local authority to use zoning to require smoke-free dining, he argued. Montgomery, Prince George's, Howard, Talbot and Charles counties in Maryland as well as the District have smoking bans. Baltimore approved one this week, and the Maryland legislature is considering a statewide ban.

Alexandria's plan would require all new restaurants to be smoke-free, as well as existing restaurants with outdoor seating on public sidewalks -- which include many cafes in the popular Old Town and Del Ray shopping districts. Restaurants that want to continue to allow smoking would not be able to make upgrades or renovations and would risk being shut down, according to the plan.

"Alexandria would be the first jurisdiction in Virginia to link maintaining the economic vitality of the city as a restaurant destination with the abatement of the public health menace of secondhand smoke," Pessoa said.

The city has 2 million visitors annually and is expecting more when it is linked by water taxi to the massive National Harbor complex across the Potomac River in Prince George's County, set to open next year, Pessoa noted.

About a third of the city's 360 restaurants participate in the Proud to Be Smoke Free program, begun more than a year ago, officials said. That program is voluntary.

Others had reservations.

"I don't like it. I'd be against it," said Pat Troy, who owns an Old Town pub where smoking is allowed in the bar and on patios. "I want to stand up for people who want a cigarette or a smoke. The rights are being taken from people right and left. After a while, we'll have no rights left."

Asked about Alexandria's proposal, David Sutton, a spokesman for Richmond-based Philip Morris USA, reiterated the tobacco giant's position on smoking bans: that restaurateurs are the best gauge of their patrons' needs.

"We believe business owners -- especially those owners of restaurants and bars -- are most familiar with the needs of their patrons, and we think they should be afforded the opportunity to determine a smoking policy for their establishment," Sutton said.

Del. David L. Englin (D), whose district includes Alexandria, said he does not believe the proposal violates state law. "It's groundbreaking," he said. "It's a community making proper but creative use of its existing authority to protect public health."

The City Council approved an early draft of the proposal at its meeting Tuesday night and could hold a public hearing as early as next month. The mayor said he expects lots of public discussion in the coming weeks -- as well as a possible court battle if the measure is approved.

"I think we're going to be successful at this in the end," Euille said. "I'm sure there will be some legal challenges, but hey, you never know until you try it."

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