Nonsmoking Ordinance, So Far, Proves to Be No Hazard to Economic Health

Where there’s tobacco smoke, there’s usually fire. But few sparks have ignited in the nearly six months since the San Diego County Board of Supervisors approved a tough ordinance that severely restricts smoking in restaurants and workplaces in unincorporated areas.

County officials interpret the paucity of complaints--from smokers, nonsmokers or businesses--as evidence that the ordinance, widely regarded as one of the most stringent of its kind in the nation, is working.

Some nonsmoking advocates and others, however, suggest that the ordinance’s track record and potential long-term impact are still as hazy as the air in a room full of chain-smokers.

“The general impression is, so far, so good,” said Debbie Kelley, program director of the local American Lung Assn. office. “But there’s still a lot of uncertainty, particularly about the workplace. There, it’s not very clear to anyone what’s happening.”

Public Doesn’t Care

A major reason for that uncertainty is that, because the law is limited to only the county’s unincorporated region, it has attracted relatively little public attention--much less, proponents say, than would a comparable ordinance in the city of San Diego.

The problems associated with that low public profile have been compounded by the county’s deliberately low-key enforcement of the measure, a style that stems as much from administrators’ desire to avoid heavy-handed tactics as from budgetary constraints that make frequent inspections economically impractical.

“I suspect that less than 5% of the affected individuals even know this law is on the books,” said Bob Ottilie, a lawyer who represents a business group concerned about the city’s consideration of a similar ordinance. “I don’t doubt that most people who are aware of it are complying. But the real reason there have been so few complaints may be that it’s been pretty invisible to this point.”

Although acknowledging that the ordinance is only a first step toward his goal of an eventually smoke-free environment in most public places, Supervisor Leon Williams, the measure’s sponsor, argues that it

already has made significant strides toward protecting nonsmokers from the annoyance and health hazards of secondhand smoke.

“We’ve still got a long way to go, but the ordinance has helped to raise the public’s consciousness,” Williams said. “I detect a difference in people’s attitudes in terms of their willingness to light up a cigarette under someone else’s nose. Even if it does nothing more than make smokers become a little more considerate toward nonsmokers, that’s progress.”

Approved last July, the county ordinance requires restaurants to designate at least 50% of their indoor seating capacity as a no-smoking area. Previously, restaurants had been required to provide only enough no-smoking space to meet demand, a vague rule that allowed restaurateurs to establish their own guidelines.

The measure also requires employers to ban smoking in shared work areas, prohibits smoking in private offices unless doors are closed and no nonsmokers are present, and requires hotels and motels to provide enough nonsmoking rooms to meet demand. Smoking also is prohibited in most health facilities, waiting areas and service lines in business establishments and public areas such as restrooms.

In recognition of the fact that some businesses attract clienteles that include a large percentage of smokers, bars, lounges, bowling centers, pool halls and some other facilities were exempted from the 50% space requirement.

A lifelong nonsmoker, Williams explained that his primary motive in proposing the ordinance was drawn from the growing medical evidence on how the inhalation of smoke can harm the health of nonsmokers. Dr. David Burns, an associate professor at the UC San Diego School of Medicine, testified before the supervisors last summer that medical evidence suggests that as many as 3,000 people die annually as a result of so-called “secondhand” smoke.

“We’re not trying to say people don’t have the right to smoke,” Williams said. “But they don’t have the right to hurt other people in the process. . . . As a county, we’re not trying to legislate anyone’s behavior. Our thrust here is the public’s health.”

Only 25 Complaints

Although county officials have received hundreds of inquiries about the ordinance since it took effect in August, there have been only 25 formal complaints--a fact that they cite as proof of widespread public acceptance and compliance.

“Judging from the number of complaints, the ordinance seems to be working,” said Willie Pugh, a county health education associate who heads the enforcement effort. “We get a lot of calls asking us to interpret the ordinance, but actual complaints have been rare.”

Others, however, suggest that the low number of complaints may also reflect the public’s unwillingness to report violations--or unfamiliarity with how to do so. Nonsmoking diners who believe that a restaurant has failed to set aside sufficient nonsmoking tables, for instance, might be more inclined to forget about the experience--or to decide simply not to patronize the restaurant again--than to file a complaint with the county.

Although some restaurants have posted signs listing a county Health Department telephone number where suspected violations may be reported, many others simply post plain smoking and no-smoking signs. Under the ordinance, the wording and placement of such signs is at the business owners’ discretion.

Violations Unreported

The county’s decision to rely primarily on voluntary compliance also is seen as a contributing factor to the low number of complaints. In the absence of regular enforcement inspections by county officials, many violations likely go unreported.

“There probably are more violations than we hear about,” Pugh conceded. “But they’re not very blatant things, or they’d be reported.” In addition, county health inspectors have begun checking compliance with the anti-smoking ordinance as part of their routine inspections of restaurants’ sanitary standards, Pugh added.

Most of the complaints that have been received have been settled by telephone calls from Pugh’s office to the businesses, followed up by letters asking compliance within 10 days and--in a few cases--on-site visits by county health staffers. Ordinance violators are subject to fines ranging from $50 for a first offense to $250 for the third and each subsequent violation within a year. To date, however, no legal action has been taken against any business.

When the supervisors debated the ordinance last summer, representatives of the restaurant and hotel industry spoke in opposition to it, complaining that it would be an economic burden that could cost them smokers’ business. Although county workers are charged with enforcing the measure, business officials complained that practical day-to-day enforcement would be their unwelcome responsibility.

Today, most of those groups, although still not pleased with the ordinance, grudgingly admit that the economic and other difficulties posed by it have not been as severe as they feared.

“The best way to put it is it’s something we can live with,” said Paul McIntyre, executive director of the San Diego Restaurant Assn. “It’s helped that the county hasn’t been hard-nosed about enforcing it. The county’s shown that it’s not out to put anyone out of business over this.”

Many restaurant operators say that, aside from minor occasional grumbling from customers, they have heard no serious complaints from either smokers or nonsmokers.

Jim Becker, the owner of Hernandez’ Hideaway, alongside Lake Hodges, said that about two-thirds of his clientele smokes. Nevertheless, Becker said that “about 98% of the people we get here accept (the ordinance’s restrictions) without complaining. Every couple weeks, you might get a gripe. But no major problems.”

Similarly, George Nourani, the manager of Mille Fleurs, a posh Rancho Santa Fe restaurant, said most of his customers--generally split about 2-to-1 in favor of nonsmokers--have been “very accommodating, very cooperative.” In particular, Nourani said, smokers have not complained about longer waits for tables in smoking areas or, on occasion, being seated in nonsmoking areas.

Not all restaurateurs, however, are as sanguine about the ordinance, notwithstanding the lack of major problems.

“This is just another . . . law where government tells me how to run my business,” said Dan DeLong, the manager of the T-Bone Family Restaurant in Lakeside. “But it’s the law, so people go along with it, even though they might not like it. Such is life.”

Calling the county ordinance an “unfair, inequitable law that doesn’t leave a good taste in everybody’s mouth,” Harry Florentine, manager of the San Diego Tavern and Restaurant Assn., said his organization is pondering a legal challenge.

“You’re infringing on rights when you get into a selective enforcement thing like this,” Florentine said. Like some other restaurant representatives, Florentine expressed a preference for the county’s previous ordinance over Williams’ proposal, praising the earlier law’s flexibility in allowing restaurateurs to “self-regulate by keeping the public happy.”

Cost Him Business

Before last summer, restaurant owners could adjust the size of their smoking and nonsmoking sections to meet the needs of their customers at any particular time. But the 50% space requirement, Florentine and others argue, causes some seats in both smoking and nonsmoking areas to often go unused.

“Nobody’s gone bankrupt, but I’m sure this has cost some businesses money,” Florentine said.

Although the supervisors disagree with restaurateurs on that point, they conceded at the time they passed the ordinance that the 50% requirement would be impractical for certain businesses such as bars, cocktail lounges, bowling centers, card rooms and pool halls that attract many smokers.

“Certain establishments are inherently smoke-filled rooms,” Supervisor Brian Bilbray said.

The other exemptions to the ordinance include jails, stores that deal exclusively in tobacco products and accessories, hotel meeting rooms in use for private social functions, psychiatric facilities and drug clinics, and private offices assigned to a single person from which smoke cannot drift to no-smoking areas.

Under the ordinance, businesses may apply for hardship exemptions. Of the three applications received since August, two have been approved--one involving a jewelry store run by two handicapped Vietnam veterans and the other for a restaurant where patrons’ entrance through the bar made it difficult to comply with the ordinance’s requirement of smoke-free waiting areas. A Spring Valley beauty parlor was turned down in its request.

Mirroring restaurants’ experience, private employers have reported no major problems complying with the ordinance’s ban on smoking in shared work areas. As a practical matter, that provision has resulted in many workplaces being declared entirely off limits to smokers, though employees are permitted to smoke behind closed doors in private offices when no nonsmokers are present.

Paul Wark, the division manager of Robertshaw Controls Co., said that the floor layout of the firm’s Fallbrook factory left managers with little choice but to ban smoking inside the 330-employee plant.

“At our place, if you’re inside the building, you’re in a shared work space,” Wark said, chuckling. Though smokers now must go outside to smoke, “We haven’t heard a bit of static about it,” he added.

Most Small Firms

The Lung Assn.’s Kelley, however, questions whether all businesses are complying with the ordinance, noting that most of the 5,800 businesses in the unincorporated areas are small firms with only a handful of employees. In such an environment, workers may be hesitant to report infractions, she said.

“Most of these businesses are family-run or close to it, so you’d feel almost like a traitor if you reported someone,” Kelley said. Moreover, although employees who file complaints are guaranteed confidentiality to protect against retaliation by employers or co-workers, in most cases it would not be difficult for workers in a small office to determine the tipster, she added.

In contrast to the specific numerical formulas or other provisions governing smoking in restaurants and workplaces, the ordinance establishes a more general guideline for hotels and motels, saying simply that there should be sufficient nonsmoking rooms to meet demand.

Although there again have been no major complaints from hoteliers, Jim Durbin, chairman of the San Diego County Hotel-Motel Assn., said it is “too early for a verdict” on how the measure has affected his industry. Like restaurateurs, hotel owners are concerned about any arbitrary standards that could force rooms to remain vacant, though that has not been a problem to date.

Ignored by Other Cities

One major disappointment felt by Williams and other supporters of the county measure is that, contrary to their hopes, the ordinance has not yet been copied by cities throughout the county. At the time of the measure’s passage, the county sent letters to the 18 local incorporated cities urging them to adopt similar measures. To date, however, none have.

County health official Pugh, however, said he believes that many smaller cities are waiting to see how the city of San Diego handles the issue early this year. A city task force has been reviewing the county’s anti-smoking measure for several months and is expected to forward its recommendations to the council next month.

“The city’s the key,” Pugh said. “If San Diego goes along with it, I think you’ll start to see action from the other cities too.”

And Williams, who in the past often complained about “getting a lung full of smoke” even while walking down the halls of the County Administration Center, said that the issue has to be evaluated from a long-range perspective.

“On such an emotional issue, you’re not going to change thinking overnight,” Williams said. “But this is an important step, because it clearly shifts the momentum toward nonsmokers. This is a gradual process, and we still have a lot of educating to do. Still, every time you go to work or a restaurant and aren’t exposed to smoke, you can tell--and smell --that we’re moving in the right direction.”