OLYMPIA – Walk up the stairs above Frankie’s bar in Olympia, and it’s like stepping back to 2005.
Bar patrons are talking over tall mugs of beer, nothing unusual about that. But there are ashtrays – ashtrays! – on the tables. And a slight smoky haze hangs in the air, as people happily puff away on cigarettes and cigars. Three years after voters overwhelmingly approved Washington’s toughest-in-the-nation smoking ban, a handful of bar owners, clubs and others continue to seek ways around it.
Among their recent efforts:
•An American Legion post in Bremerton has a case before the state Supreme Court, arguing that the ban was never intended to apply to private clubs.
•Frankie’s owner Frank Schnarrs has been in court for two years, arguing that his upstairs bar is actually a members-only club, and that the servers are volunteers.
•Cigar fans gathered tens of thousands of signatures this year in an unsuccessful effort to restore smoking in cigar stores and smoke shops.
“This is not about smoking,” Schnarrs said. “This is about freedom of choice.”
Going to lawmakers
In Spokane, Churchill’s Steakhouse owner Bill Alles estimates that he spent half a million dollars equipping a large room for cigar-smoking members. The room’s heating, air conditioning and ventilation system is separate from the restaurant’s. A fan draws any escaping smoke back into the room, which is separated from diners by a 28-foot-long corridor. No employees would work in the area. About 100 people wanted to be members, even with the $1,000 membership fee.
But local health officials have refused to allow the smoking room, Alles said. After deciding a legal fight is too expensive, he’s now trying to convince state lawmakers to change the law.
“The county said as soon as we opened, they would force us to close,” Alles said. “And the interesting thing is if I had filed suit, the county would have used my tax dollars to defend their position.”
A slump, then a strong recovery
Three years ago, Washingtonians approved Initiative 901, a strict ban on indoor smoking. Before that, people could smoke in some restaurants, bars, bowling alleys, fraternal clubs and similar public places.
I-901 banned smoking within 25 feet of doorways, windows and air intakes in most public places and most places with employees. It made an exception for hotels, allowing up to 25 percent of rooms to have smoking. And the state law cannot regulate smoking in tribal casinos, where it remains widespread.
Despite predictions of a wave of bar and tavern bankruptcies as smokers stayed home, the state Department of Revenue says its tax data indicate that the industry has recovered from any effects of the ban. The industry’s taxable receipts say it earned 20 percent more in 2007 than in 2006, when the ban took effect.
“Perhaps patrons are just returning to their favored places because the alternatives were not as convenient,” Stephen Smith, a state economist, said last month.
The initiative’s proponents say it’s popular and has worked very well.
“It passed in every county by over 60 percent,” said Erin Dziedzic, a lobbyist for the state chapter of the American Cancer Society. “This is a movement by the people.”
She said she’s heard nothing from lawmakers to suggest that they’re having second thoughts about the ban.
No longer, she said, are employees forced to work in a haze of secondhand smoke. The 25-foot rule is effective. And restaurants and bars seem to be doing well.
“It’s working effectively,” Dziedzic said. The clear health benefits, she said, shouldn’t be set aside “just because someone wants to have a scotch and a cigar.”
‘Not a fundamental right’
Smokers’ best hope for an exemption may be the American Legion case in the state Supreme Court.
In May 2006, Kitsap County health officials told Post 149 in Bremerton that if it had employees, it needed to snuff out smoking in the club.
The post sued, citing a sentence in the law saying that it’s “not intended to restrict smoking in private facilities.”
“The smoking ban is contrary to the traditions and expectations of the Post and its members who expect they will be allowed to associate, drink and smoke,” member Robert Kucenski wrote to the court. Navy veterans at the post, he said, had successfully fought the Navy’s own attempts to make ships smoke-free.
Kitsap County – and the state attorney general’s office – says that having employees means the ban applies. And any constitutional challenge is absurd, state attorneys say.
“Smoking is not a ‘fundamental right’ ” under either the state or federal constitutions, the state told the court.
The case was argued last fall in the state’s Temple of Justice. The court has not ruled yet. But in Round One, Thurston County Superior Court Judge Gary Tabor sided with health officials, upholding the smoking ban. In court, Tabor quoted Justice Oliver Wendell Holmes: “The right to swing my fist ends where the other man’s nose begins.”
‘How could they turn the lights off?’
In Olympia, Frank Schnarrs says more than 800 people have joined his Friends of Frankie’s club, paying $10 a year to use the upstairs bar. He estimates that 90 percent of his business comes from the smoking club.
Still, he says, business is down 60 percent since the ban.
“I had to challenge the law,” he said. “How could they all of a sudden turn the lights off in my business?”
Schnarrs has been in court half a dozen times over the smoking ban, he said, and the last round didn’t go well. He was declared in contempt of court for allowing smokers to have $1 “day passes” to his “club.”
Still, Schnarrs argues that he’s carefully complied with the letter of the law. His servers – who have food and liquor credentials from the state – sign paperwork saying they’re volunteers, not employees. And he’s trying to work with county health officials to get approval for his ventilation system.
“Frankie’s desire from Day 1 was to establish a designated smoking room,” said his attorney, Shawn Newman. “I think we can do that. We’re just trying to work out the details.”
Schnarrs is less optimistic. The battle feels more like a war of attrition to him. Customers can easily go to smoke in tribal casinos the law cannot touch, he says, while he’s spending time and money with health officials and in court.
“It’s really sad,” he said. “But I don’t know how you can own a business and not fight for it.”
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