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  Calif. Taverns Allowing Patrons to Ignore Smoking Ban

By William Claiborne
Washington Post Staff Writer
Tuesday, February 17, 1998; Page A03

Egged on by a smokers' rights group heavily funded by the tobacco industry, a growing number of California tavern owners are thumbing their noses at the nation's only statewide ban on barroom smoking, allowing patrons to light up and blow smoke in the face of authority.

Although the six-week-old smoking ban provides for escalating fines for bar owners who allow smoking, reports from around the state indicate that enforcement by local jurisdictions depends mostly on response to complaints. Even at that, it has been spotty at best, with compliance in many areas but open defiance in others.

Some jurisdictions have sent health inspectors or fire marshals to check on complaints. But many local governments, lacking adequate resources, have merely mailed warning notices to alleged offenders upon receiving a complaint. Moreover, while bar owners are required to ask offending patrons to stop smoking, they are not required under the law to eject them or take other steps to enforce the ban. As a result, many bar operators acknowledge that they signal their intentions by smiling when they ask a patron to refrain from smoking and then turn their back on violators.

"The law requires us to post the signs and inform the customers that they are not supposed to smoke. We're not required to eject them," said Beverly Swanson, owner of the One Double Oh Seven Club in Santa Cruz. "People in bars are smoking. You can call it civil disobedience, but you can also call it being backed into a corner and trying to keep your business alive."

Jim Keenan, owner of the Nite Hawk Tavern in Sacramento, said, "Most of my customers comply, but if someone lights up, I will not confront him. There's nothing in the law that says I have to confront or eject a smoker."

In the first court test of the ban, the owner of a bar in Roseville, northeast of Sacramento, pleaded not guilty Friday to a charge of allowing patrons to smoke and was scheduled for a nonjury trial on March 13. In a courtroom packed with fellow tavern owners, Bill Ostrander, 70, who faces a $100 fine if convicted, said, "I fought a war to keep this country free. The state didn't buy that bar. I bought that bar with hard work."

More than 100 bar owners recently gathered in Sacramento to form an association and discuss rebellion strategies, including raising a legal defense fund for members cited under the ban and pulling the plugs on state lottery ticket-dispensing machines in taverns as an expression of their anger at state officials.

The group's contention that at least stand-alone bars without restaurant facilities should be exempted from the no-smoking law received a boost from Gov. Pete Wilson (R), an occasional cigar smoker, who publicly suggested last month that smokers should have "some sort of sanctuary" and that bar owners should have the option to allow smoking.

Similar coalitions to repeal the ban are being formed elsewhere in the state, some of them with the help of the National Smokers Alliance and the Sacramento branch of the New York-based Burson-Marsteller public relations firm, which long has had close ties with the tobacco industry.

"Rebel, revolt, resist. Bad laws should not be obeyed," headlined one missive published by the National Smokers Alliance, a tax-exempt, nonprofit group headquartered in Alexandria, Va. Since its founding in 1993, the alliance has received more than $42 million from three of the biggest U.S. cigarette manufacturers.

Deftly sidestepping the potentially dicey legal problem of suborning lawbreaking, the alliance put quotation marks around the call for defiance and attributed it to a newspaper columnist's commentary on a similar smoking ban in bars that was overturned last year in Toronto.

But the message was not lost on smokers from Humboldt County on the Oregon state line to San Diego County on the Mexican border, who view barrooms as their last refuge in a state with some of the strictest anti-smoking laws in the United States.

At J.P.'s Bar and Grill in Santa Monica, for instance, drinkers were urged to go outside to smoke for about a week after the ban started Jan. 1. Then a "Repeal the Ban" placard went up next to the state-issued "No Smoking" sign near the door. Now, patrons find a pall of smoke hanging in the air and ashtrays on every table.

"You know that's illegal," said a bartender one night this week as she handed a smoking patron an ashtray and flashed a conspiratorial smile.

The defiance campaign and an intensive legislative lobbying effort guided by one of the world's largest public relations firms prompted the state Assembly last month to vote for a suspension of the measure for at least two years. Although the repeal effort faces much stiffer opposition in the state Senate, the initial legislative victory appears to have encouraged bar owners to step up their public demonstrations and organizing activities with the help of the Smokers Alliance and tobacco industry money.

According to financial statements filed with the California Attorney General's Office, the alliance received $42 million between its founding in 1993 and 1996, during which it paid Burson-Marsteller more than $4.4 million.

The alliance's senior vice president, Gary Auxier, said his "grass-roots" group's three largest sources of funds are the Philip Morris, Brown & Williamson and Lorillard cigarette companies. He said the alliance also receives funds from tobacco industry-related firms, such as cigarette lighter manufacturers, hospitality industry contributors and dues-paying members.

Auxier and the alliance's president, Thomas Humber, both came from Burson-Marsteller, where they handled tobacco company accounts.

The National Smokers Alliance has supplied more than 3,000 California bars with posters urging an overturn of the ban and coasters that patrons can sign and mail to their legislators. The alliance also is distributing a biweekly "Prohibition News Update" and a monthly newsletter called "The Resistance," Auxier said. He said the alliance last week also hired a Sacramento lobbyist, Fred Taugher of Public Policy Advocates, to "get an intelligence-gathering process" in the state capital.

But Auxier denied that his group is encouraging lawbreaking.

"We haven't at any point even suggested people engage in civil disobedience. Do we report on it? We sure as heck do, because it's obvious that it's out there. But we're not encouraging it," Auxier said.

Stanton A. Glantz, a medical professor at the University of California at San Francisco and a leading anti-smoking activist, accused the tobacco industry of attempting to reshape its image as "responsible corporate citizens" in Washington by offering huge tobacco lawsuit settlements while "playing incredible hardball" in California.

"The fact is, they're out there encouraging people to break the law. It's one thing for Mohandas Gandhi or Martin Luther King Jr. to encourage people to engage in civil disobedience and it's another thing to have one of the biggest multinational corporations in the world inciting people to break the law," Glantz said.

Ann Wright, spokeswoman of the American Cancer Society's California division, which fought for the bar-smoking ban, also said Auxier's disclaimers were disingenuous.

"I think they're out there stirring the pot. It's an organized effort aimed at a small, vocal group, and that machine is rolling," Wright said. "But we've taken on the tobacco industry before and we'll do it again."


© Copyright 1999 The Washington Post Company

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