Restaurants in 2 Upscale Cities Test Laws on Smoking : Beverly Hills and Aspen Become Hot Spots of Burning Controversy

The bar at Little Annie’s was as crowded as the ski lifts at Buttermilk Mountain. The customers were cheering a television basketball game, the snow from their boots melting onto the wood floors. It was business as usual.

But manager John Hamwi was angry. Taking a deep breath and pushing back his baseball cap, Hamwi said he was “sick and tired” of confrontations with cigarette-smoking customers. It has become a far too common occurrence, he said, since last June, when Aspen, the ski resort in the Rocky Mountains, became the first city in the United States to ban smoking in restaurants.

A similar ordinance may go into effect in Beverly Hills Friday.

Hamwi’s latest run-in occurred when a waitress in the dining room told a smoker about the law. The diner stomped out, leaving behind barbecued ribs, beer and the check.

“I don’t like it one bit. I’m trained to make customers happy, not make them unhappy,” Hamwi grumbled.

Across town at the Crystal Palace, where a polite dinner crowd enjoyed a cabaret review and steaks, manager Russ Smith praised the law. “We’ve had an overwhelmingly positive response,” he said. “The ones who want to smoke come out to the bar at intermission. No problem.”

But restaurateurs in Beverly Hills fear that a smoking ordinance passed in February by the City Council will be a problem.

The 41-member Beverly Hills Restaurant Assn. will go into Los Angeles Superior Court today to try to block the law. The group claims that the ordinance, which bans smoking in most restaurants, at public meetings and in retail stores, is unconstitutional, and could have a bad effect on business.

More than 40 states and 400 municipalities have passed various forms of smoking bans. In California, 89 cities and counties have significant nonsmoker-protection laws. Earlier this week, the Los Angeles City Council postponed until April 15 a proposal that would have required restaurants with more than 50 seats to set aside at least half of them in a no-smoking area.

Aspen and Beverly Hills are being watched closely by both anti-smoking and pro-smoking forces. How successfully their pioneering laws can be implemented will provide guidance for future handling of the emotionally charged issue, people on both sides of the issue say.

In 1985, Sharon Mollica, a nonsmoking real estate woman who knew little about politics, formed Aspen GASP (Group to Alleviate Smoker Pollution) and roused enough support on the controversial issue to push it through the Aspen City Council.

“I hated smoking. I watched my father die of a smoking-related disease,” said Mollica, sitting in the Crystal Palace. “No one else in the town was stepping forward to take on the smoking issue. I realized if I wanted it to happen, I’d have to do it.”

“I was scared to death when I made my first anti-smoking speech to all those politicians at a City Council meeting,” she recalled. Perched on the stage piano and in the foyer of the restaurant are the fruits of her battle--large “no smoking” signs that must be posted in all the town’s restaurants.

The Aspen law was phased in slowly. In October, 1985, restaurants were required to set up smoking sections within their dining rooms. The following June, the owners who wanted to retain smoking sections had to make those sections separate and independently ventilated. This meant providing physical barriers, such as walls, not simply invisible lines.

In establishments that feature both bar and restaurant areas, customers can smoke only at the bar counter. An owner must obtain a variance to allow smoking at the cocktail tables in the bar, a measure to prevent proprietors from insisting that their restaurant tables were “cocktail tables,” city health officials said.

Smoking also is allowed in the city’s taverns and in restaurants where alcohol comprises more than 60% of business. Only a handful fall into that category, however.

Not Without Problems

While the Aspen law has been praised, it has not been without its problems, according to those who have had to live with it. Some restaurant owners report that the truce between smokers and nonsmokers is uneasy at best. Smokers have reportedly ripped no-smoking signs off the walls and refused to stop smoking, and some owners have had to construct costly barriers to keep from losing their smoking clientele.

John Walla, owner of the Ute City Banque, a restaurant in a historic downtown bank, now seats his smokers on a balcony above the nonsmoking diners. He said he spent thousands of dollars installing a special ventilation system.

One rumor making the rounds in Aspen is that movie muscle man Arnold Schwarzenegger lit up a cigar in one of the fancy dining rooms and no one had the courage to tell him to put it out. The story may be merely a joke, but many restaurateurs, both in Aspen and Beverly Hills, do not see the humor in their predicament. Most of them have little enthusiasm for posting “no-smoking” signs among the potted plants, or telling their diners, muscles or no, to put out their cigarettes.

“If I’d wanted to be a policeman, I would have joined the force, not learned to make pasta,” fumed Joe Patti, owner of La Familia, an Italian restaurant in Beverly Hills. Patti, like many fellow restaurateurs, fears that smoking customers will simply take their business to nearby Los Angeles, where smoking in restaurants is legal.

Hotels Cafes Exempt

The Beverly Hills ordinance forbids smoking in most restaurants, in public meetings and in all retail stores, including supermarkets. However, the city’s 17 hotel restaurants and private banquet rooms were exempted, as were bars that are not located in dining rooms. Violators, both smokers and restaurant operators, face fines of up to $500.

The hotel exemption has been one of the most controversial aspects of the law, and will be the focus of today’s court hearing. City officials say they exempted the hotels because too many foreign visitors would violate the law because of confusion over local customs. Restaurateurs charge that this discriminates against restaurants not located in hotels.

The lawsuit also alleges that the Beverly Hills City Council violated the state’s open meeting law by discussing provisions of the smoking ban in secret session and that council members violated the California Environmental Quality Act by refusing to submit the proposal to an environmental review board before approving it.

Beverly Hills’ attorney on the case, Julia Rider, denies the charges, saying that there is a wealth of legal authority to back up the city’s position.

Support From Smoker

Unlike in Aspen, where a citizens’ group was the moving force in getting the law passed, the Beverly Hills City Council itself picked up the no-smoking issue. The nonsmoking forces give special credit to Councilwoman Donna Ellman, a smoker who was expected to vote against the measure. She not only supported it but lobbied her colleagues after receiving letters of support from nonsmokers.

“Smoking has become unacceptable,” she said before being instructed by the city attorney not to comment on the smoking issue until it is litigated. “The public has accepted it in theaters, they will accept it in restaurants.”

But the restaurateurs’ attorney, Michael Kantor, contends that the law was “hastily drafted and not clearly thought through. We think they should start all over again.”

He said the law does not say what the restaurant owners must do when confronted with smokers. The city insists that the owners’ liability ends when they post the signs and that fellow diners must file complaints. But it is not spelled out, Kantor said.

Can Call Police

In Aspen, restaurant owners are required to ask offending patrons to refrain from smoking. If they refuse, police can be summoned.

However, Aspen Assistant Police Chief John Goodwin said he has been told by the city attorney to make no arrests. Instead, officers submit a report to the city attorney, who decides whether to file charges. He is aware of only one instance where police were called to a restaurant. “The guy wanted to smoke and was pretty loud. But we calmed him down and that was that.” To date, no smokers have been fined.

On the other hand, several Aspen restaurant owners have been cited for setting up their smoking areas incorrectly and for failing to place “no-smoking” signs in visible locations, according to Rick Bossingham, of the Aspen-Pitkin County Environmental Health Department.

Regardless of whether or not arrests are made, pro-smokers in both cities said they are amazed that the politicians would jeopardize the tourist economy by even suggesting it. Beverly Hills, lined with trendy department stores and palm trees, and Aspen, surrounded by ski slopes and pines, both cater to moneyed visitors who enjoy dining out in elegant style and do not mind paying for it. The Aspen forces are especially concerned because that city has had problems in recent years competing with the many new ski areas in Colorado and Utah.

May Help Tourism

However, the lawmakers in Aspen and in Beverly Hills argue that the ordinances should boost tourism in their respective towns because 7 of 10 Americans do not smoke.

Aspen averages 350,000 visitors a year and they spend about $32 million in the town’s 80 restaurants. However, this year the town is enjoying the best season in six years, according to Spence Videon, president of the Aspen Resort Assn. In January alone, restaurant sales were up 12% over the year before and hotel occupancy was up 13%.

Anti-smoking forces credit the increase to the desire of nonsmokers to vacation in a smoke-free environment. But Videon said that an early snowfall on Aspen slopes this season and a corresponding lack of snow in other Western resorts had more to do with the surge.

Whether they will come back is uncertain. “Next year will be a better test,” Videon said.

One couple spending a week in Aspen said they were surprised to hear about the ordinance. “It’s un-American,” Bruce Germer, a New Orleans optometrist said. “I don’t smoke myself, but I can’t believe that they are trying to legislate something like smoking.”

Popular Destination

Beverly Hills, with a population of about 30,000, is one of the top 10 tourist destinations in California. The city’s 125 restaurants generated $100 million in gross sales last year, and retailers did a $1-billion business, said Chamber of Commerce Vice President Mike Sims.

But despite such popularity, Beverly Hills businessmen fear that their clientele will shift to Los Angeles restaurants where it isn’t illegal to light up. Aspen, they point out, has a more or less captive audience.

Barry Fogel, owner of Jacopo’s pizza house, said: “One customer I’ve had for 15 years said she wouldn’t come back if she couldn’t smoke. It broke my heart. I mean, you spend your entire life trying to develop faithful customers like that. . . . “

Patti of La Familia is upset because his bar is located in the dining room, a possible breach of the new law. “It would cost a fortune to change that bar and would upset the entire decor,” he said.

Prefer Dividing Rooms

Patti and other restaurateurs in Beverly Hills say they would prefer a plan in which the dining rooms are divided into smoking and no-smoking sections, much like the ordinance being considered by the Los Angeles City Council.

Guy Veletzos, general manager of the restaurant at the Neiman-Marcus department store, said the store divided the dining room into smoking and nonsmoking sections six years ago. But because fewer people are smoking today, he said, the smoking area has dwindled from 50% of the space to 35%.

“This law doesn’t make sense at all,” he said. “We have been able to accommodate everybody. Why should we have to go out of the way to alienate our customers?”