Ruling Gives Referendum on Smoking a Chance : Court: Judge orders checking of all 97,572 signatures collected by smoking ban’s opponents. But Los Angeles officials say the tally will still come up short.

Keeping alight a tobacco industry-sponsored effort to overturn Los Angeles’ restaurant smoking ban, a judge Thursday ordered the city clerk to check all 97,572 signatures collected by opponents of the month-old law to determine if the issue should go before voters.

Superior Court Judge Robert H. O’Brien gave the city clerk until Oct. 4 to finish the laborious process of checking signatures and indicated that he has not ruled out the possibility of placing a referendum on the November ballot.

But city officials predicted that the petition drive will fall short of the 58,275 valid signatures required to win a spot on the ballot. Attorneys for a group of restaurant owners disagreed.

For now, the smoking ban will remain in effect, O’Brien ruled, rejecting claims by restaurateurs that it has driven business to neighboring cities.

Several restaurant owners submitted affidavits blaming the law for hurting business. Daniel Oh, general manager of Ham Hung Restaurant in Koreatown, said that since the smoking ban went into effect Aug. 2, diners are spending less time in his eatery, eating less dessert and buying fewer drinks.

“When Ham Hung sells less beer and dessert--two things that people enjoy consuming while they smoke--Ham Hung loses a substantial amount of revenue,” Oh said.

In successfully arguing that the ordinance should stay in place, Michael Strumwasser, attorney for Americans for Nonsmokers’ Rights, cited the health effects from smoke. “It doesn’t take an atomic scale to measure the relative hardships between death and revenue,” he said.

Los Angeles is the largest city in the nation to ban smoking in restaurants. The law applies to all enclosed restaurants but does not govern bars--even if they are located inside eateries. Patrons also are permitted to smoke on outdoor patios.

So far, no one has been prosecuted under the law, which carries fines of $50 to $250 for smokers who break the law and $1,000 and six months in jail for restaurant owners. The city attorney has received about a dozen complaints against restaurants and has sent out a number of warning letters, according to a city attorney spokesman who refused to identify the establishments.

Attorneys for the city, anti-smoking groups and the L.A. Hospitality Coalition, a group of restaurant owners funded by the tobacco industry, were in court Thursday because O’Brien last week struck down a city law that invalidated hundreds of signatures. He ruled that a requirement for signature gatherers to be city voters was undemocratic. The city is appealing that ruling.

O’Brien last week ordered the city clerk to check 1,111 signatures that had been thrown out to determine if enough were valid to require a look at all 97,572 signatures collected by opponents of the smoking ban. The city clerk earlier had determined, in a 5% sampling of the signatures, that fewer than 43% were valid and, therefore, had concluded that a full count was not required in order to show that the measure would fail to qualify.

City attorneys reported Thursday that a re-examination of the sampling--no longer discarding valid signatures collected by non-voters--found that about 55% were valid. With a percentage that high, officials normally would count all the signatures turned in.

“We have not given up our argument that these signatures should not have been counted in the first place,” Assistant City Atty. Anthony S. Alperin said, citing the city’s appeal of the judge’s ruling last week.

City elections officials, however, predicted that, based on the sampling, the referendum is unlikely to qualify. They point out that 55% of the signatures in the sampling were valid. “If that same percentage is extrapolated to the total number of signatures filed, the statistical result would be 54,055 signatures”--about 4,000 short of the required 58,275.