Where There’s Smoking, There’s Continued Fire

Restaurant owner Bob Mardian knew a battle would be looming over his oceanfront establishment when the final phase of the state’s no-smoking law was ushered in, banning smoking in the bar.

He installed awnings, heaters and dining tables in a patio area for those who want to light up legally--outside. He warned employees, urging them to take a diplomatic approach when telling customers they can no longer take a drag with their martinis. But while Mardian was preparing to play by the rules, he discovered there was something wrong with the playing field.

Not all bar owners are following the law, causing resentment among those who do. Furthermore, customers who frequent places where the law is being ignored are upset when other businesses enforce the ban, Mardian said.

“There isn’t a level field in the enforcement of the law,” said Mardian, who fears he may be losing business to less scrupulous bars. “People get used to businesses not enforcing the law, and, consequently, they’re put off by the fact that we are.”

Officials at Orange County’s Health Care Agency, which monitors violations of the law, said the department has received almost as many complaints since the law went into effect Jan. 1 than in all of 1995, when the first phase of the smoking ban was put in place barring smoking in most restaurants and other businesses, such as bowling alleys, pool halls and cafes.

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So far this year, there have been 120 complaints, compared to 156 in 1995, said Marilyn Pritchard, director of the health agency’s tobacco-use prevention program.

The number of complaints is small compared to the roughly 3,000 Orange County businesses impacted by the controversial new rule, but health officials and bar owners say this last phase of the law also promises to be the most difficult to enforce.

There are smokers apparently intent on ignoring the ban, and it remains unclear who is ultimately responsible for enforcing compliance.

The health department is responsible for logging complaints, but the actual enforcement is left to local municipalities. Police are enforcing the law in some cities, such as Newport Beach, while others have relegated the responsibility to the fire department or code-enforcement inspectors.

“Our hope is that this is all part of an initial reaction,” said Colleen Stevens, spokeswoman for the state’s health department. “As people get more educated, enforcement will be less and less of an issue.”

Some aren’t sure. The law has been described as a ban on smoking in bars, but in fact its language leaves room for questions.

“There’s a lot of confusion,” said Los Angeles Fire Capt. John Kitchens, in charge of enforcing the new law in that city.

“For example, the law states that the operator has to take reasonable steps to prevent smoking. Well, what is reasonable? It varies.”

Not only is there confusion about who will enforce the law and what the law entails, but also who will prosecute it.

The Orange County counsel’s office and the Orange County district attorney’s office are currently discussing which agency will handle the burden of filing charges in these cases--the county’s prosecutor or each city’s attorneys.

“These things aren’t decided overnight,” Huntington Beach Police Lt. Jon Arnold said. “They pass a law in Sacramento and it’s on the books, but it’s, ‘OK, now who’s going to enforce it, and how?’ ”

Complaints received so far are generally coming from three sectors--customers expecting a smoke-free environment, employees who want to breathe more easily and business rivals who are in compliance, Stevens said.

Last weekend, sheriff’s deputies arrested 34-year-old Craig Etling on suspicion of trespassing after he refused to put out his smoke at Harpoon Henry’s in Dana Point.

In Westminster’s Lucky John’s Too, about 100 bar patrons lit their cigarettes in protest.

Others have started a collection to pay upcoming fines, which can range from $100 to $7,000, depending on the number of violations and other factors.

Though the law is aimed at owners and operators, patrons can also be cited, Stevens said.

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No Orange County bar owners have been cited for allowing smokers to light up, mainly because authorities want to allow some time to educate the public about the law’s benefits, Pritchard said.

Furthermore, unless there’s a complaint, authorities are not obligated to check for compliance.

“This is not a high-priority crime,” Kitchens said.

John Johnson, primary owner of Lucky John’s Too, said he received a warning letter at another business he runs in Huntington Beach but “it doesn’t mean anything to me.”

He vows to let his patrons smoke, and “everybody knows it.”

“This is a liberty issue. I’m a nonsmoker,” said Johnson, who has organized Americans for Individual Rights to fight the ban.

“I don’t understand why people don’t understand that concept.”

At other bars, it’s all still a touchy issue.

Former smoker Bill Ogden, a regular at Harpoon Henry’s, kiddingly asked his waitress for an ashtray during a recent visit.

“Don’t even go there,” she told him, rolling her eyes.

Ogden sympathizes with people who smoke but said they should listen to the majority, the nonsmokers.

In Laguna Hills, which had a local ban on smoking ready to take effect Jan. 1 in case the state law was delayed, city officials think all the controversy will pass quickly.

“Twice before, the tobacco lobby succeeded in getting delays in implementing the law,” Mayor R. Craig Scott said. “In six months, nobody will be talking about it anymore.”

Californians are very educated about secondhand smoke and will eventually come to appreciate being able to go out and then come home without “smelling like an ashtray,” Stevens said.

“There will come a time that they’ll demand a smoke-free socializing environment,” she said. “Just as we’ve come to appreciate smoke-free workplaces.”

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Times correspondent Frank Messina also contributed to this report.