Exemptions Would Take Heat Off Ban on Smoking in Taverns

David Ezra is a partner in an Irvine law firm. He has written several law review articles on the conflict between smokers and nonsmokers

Californians took a bold step this year. We banned smoking in bars (and restaurants with bars). But where there is no smoke, there can still be fire. The new law has earned the animosity of more than one avid smoker. Almost as if they see the whole world as their own personal ashtray, some smokers advocate blatant disregard for the new law. Some bar owners say the new law unfairly interferes with their freedom to run their business. And others complain that the new law is simply costing them too much money.

Even bar owners who are complying with the new law feel it has unfair ramifications--at least when the bar (or restaurant) across the street is ignoring the new law and inviting smokers to come in and puff away.

Assemblyman Edward Vincent (D-Inglewood) fired the first shot at the new law. His bill would effectively repeal all restrictions on bar, tavern and gaming club smoking. It passed the Assembly in late January but stalled in the Senate. Nevertheless, new legislation to repeal (or at least erode) the smoking ban continues.

Efforts to repeal the law are too extreme. They are supposedly motivated by a concern for economic losses suffered by businesses that cater to smoking patrons. But whether bars really will suffer economically if the smoking ban remains in effect is hotly debated. We know that the vast majority of the 35,000 businesses affected by the new smoking restrictions will continue with business as usual. On the other hand, it is likely that some bars that cater to a large smoking clientele may suffer real economic losses, as their customers increasingly decide to stay home, where they can drink and smoke (without stepping outside).


The basic problem with Vincent’s proposed legislation and similar bills is that it simply assumes that every bar, every restaurant with a bar, and every gaming club will suffer significant economic losses unless the new smoking restrictions are reversed. And we all know that is not true. (I once thought a smoking ban would result in immediate closure of every bowling alley. But the crowds at today’s “smoke-free” bowling alleys make it harder than ever to get a lane.)

It is already obvious that many bars and restaurants are doing better as a result of the new rules. After all, most people prefer a smoke-free environment. Yet repeal proposals would eliminate all benefits of the new law indiscriminately, including the protection for nonsmoking bar employees (who are exposed to as much as six times more tobacco smoke than the rest of us).

Gov. Pete Wilson has wisely called for some middle ground. So there is room and reason for compromise.



The new protections against secondhand smoke should not be tossed out simply because some bars or gaming clubs are losing business. On the other hand, if the new protections are too inflexible, it is conceivable that some of the workers we want to protect could end up losing their jobs.

Fortunately, the bar smoking question does not require an “all or nothing” answer. Perhaps the most obvious solution would be to add a hardship exemption to the new law. Rather than reverse the smoking restrictions entirely, the new law simply could be amended to allow individual bars or gaming clubs to become exempt.

To establish hardship, a business would have to show:

1. A substantial reduction in gross revenue (perhaps 15%);


2. That the revenue reduction is not substantially related to any factor other than the loss of smoking customers; and

3. That if the exemption is granted, reasonable efforts will be made to protect the health of any nonsmoking employees.

Exempted businesses would be required to display prominent signs to warn the public that smoking is allowed. And exempted businesses could be charged a small percentage of gross revenue to cover the cost of exemption application processing and hearings. Any excess funds could be used to enforce the new law.

This approach would ensure that the law is still applied where it is economically feasible. But severely affected business could continue to operate as “smoke havens.” No Californian wants to see hard-working bar and restaurant employees tossed out of a job. But most would like to be able to go visit a bar or restaurant without inhaling someone else’s tobacco smoke. Hardship exemptions would strike the right balance.