Smoking Ban at San Diego Bars Has Patrons Fuming

The pimps, the hookers, the johns, the gamblers, the ticket-scalpers are all pretty mellow compared to a new category of criminal here: the barroom smoker.

Just ask the San Diego Police Department’s vice squad. No other group of lawbreakers gives them as much guff as smokers who are busted by undercover cops and slapped with a ticket that can cost as much as $273.

“Smokers can get mean,” said Det. Kelly Johnson.

Despite the unconcealed indignation of smokers, the vice squad here remains steadfast, giving San Diego the most aggressive enforcement of the year-old law banning barroom smoking in any big city in California.

“San Diego is doing an excellent job,” said Diane Kaiser, director of the California Smoke-free Bar Program, an offshoot of the American Lung Assn. “We wish other cities would use the San Diego model, and we plan to bring it to their attention.”

A few suburban and medium-sized cities--notably Sacramento--have run education campaigns and followed up with citations for scofflaws. But in many cities the law has been virtually ignored or paid only lip service.

In Los Angeles, the Police Department passed the buck to the Fire Department, which only now is getting its complaint hotline and enforcement strategy in place. In San Francisco, uniformed police and health inspectors began enforcement two weeks ago after media coverage portrayed the law as a local joke.

But in San Diego, where community-oriented policing is considered a religion, the vice squad has been prowling bars for months in response to complaints by patrons and employees that voluntary compliance is not working. The use of undercover rather than uniformed officers is also distinctly San Diegan.

“The reality has got to settle in among the public,” said vice Det. James Jarrett. “The law is here to stay and so are we. As long as there is a law, we’ll enforce it.”

For 1998, 134 citations were written for bar smoking, a small number, perhaps, for a city of 1.2 million people, but large enough, police hope, to send a message.

“What we want to do is create paranoia,” said Sgt. Sam Campbell. “We want smokers to be paranoid about being cited for breaking the law. If paranoia gets compliance, I can live with it.”

On any given night, a barroom smoker in San Diego may light up and then be startled when that friendly fellow or gal at the next bar stool discreetly flashes a badge and politely, quietly, invites the smoker outside, where he or she receives a citation.

Some argue. Some become instant civil libertarians. Some become insulting. Many vow to carry the fight to the U.S. Supreme Court. Their bar stool comrades act as ad hoc counsel. In one bar, patrons passed the hat to gather a defense fund.

A brawny fellow cited at Cheers, a festive bar in a blue-collar neighborhood, provided a lengthy analysis linking the outrage being visited upon him to what he felt was the misuse of tax money in the presidential impeachment trial.

“This is ridiculous,” said Scott Mastrocinque, 32. “I will never spend any money in this bar again. Government has gone crazy, from Washington to San Diego.”

At TubaMan’s, San Diego’s decidedly funky “original sports bar,” angry analogies were made to World War II dictators.

“This is asinine, sickening, ridiculous, an infraction of my civil liberties,” said a cited smoker, a schoolteacher. “It’s all over for freedom. Il Duce is back in power.”

One fellow--although not smoking himself--stomped out angrily. He stopped long enough on his march to another bar to throw a four-letter epithet over his shoulder at the four vice squad officers outside, adding: “Smoke Nazis, uber alles.”

Later, the same fellow settled in eight blocks away at Scolari’s Office, where he allegedly warned patrons there was a plainclothes cop in the house. A vice sergeant wrote him a citation: Blowing the cover of an undercover cop is a misdemeanor.

“I’m outraged,” said Richard Strassman, 44, who vowed to fight the misdemeanor case vigorously. “You can’t smoke in a bar, you can’t talk to your friends. Is this still America? Not in San Diego.”

Umbrage is not gender-specific.

Three “soccer moms” were sitting at a shopping center bar called the Navajo Inn when vice squad members began pulling smoking patrons aside soon after arriving from Scolari’s. The three women, none smoking but all enjoying a martini after their badminton class, abruptly interrupted their discussion of kids and school and grades.

One of the three whirled around and told a cop, “You should get a job with some dignity! You should be out doing some real police work.”

The vice cops have heard it all, and mostly it just rolls off their backs. But on this occasion, Det. Jana Beard, having finished writing citations, decided to engage in a bit of low-key, woman-to-woman, community-policing-style dialogue.

“We have 2,000 cops in this city ready to respond to your 911 call when you need us,” she said. “But if we enforce a law you don’t like, you begin insulting us and saying hurtful things. Why?”

The failure to communicate was near total.

“You should do something with dignity, not this,” said the woman. “I pay your salary, you know.”

It’s not a new line. But no one has thrown a punch yet, although there is a tendency among both the smokers and their nonsmoking pals to engage the cops in spittle-flying debates.

“Smoking enforcement is not popular with the detectives,” Jarrett said. “We get into more confrontations than with anything else we do.”

Because of the possibility that a smoking bust could get out of hand, the vice cops always work in teams.

The base fine is $100 for a first offense, $200 for a second offense, and $500 for a third offense. Once court costs are thrown in, at the judge’s discretion, a first offense can climb to $273.

Debra Kelley, an official with the San Diego chapter of the American Lung Assn., believes she knows why smokers are so defiant.

“There’s been a really orchestrated effort to bring out the belligerence and anger among smokers by the tobacco industry and groups it funds, like the National Smokers Alliance,” said Kelley. “Their hope is to defeat the law any way they can.”

But Tom Humber, president of the Arlington, Va.-based National Smokers Alliance, says Kelley is overestimating his group’s power and underestimating the political rebellion triggered by the California law, the only state law of its kind in the nation.

“People are tired of government telling them how to live their lives,” Humber said. “Am I pleased people are giving out back talk when they are busted? You’re [damn] right I am.”

While not overjoyed at the San Diego vice squad, the local Food & Beverage Assn., a trade group for bars and restaurants, has opted not to protest--preferring to work for an amendment to the law to permit smoking if bars install special ventilation systems.

San Diego bar owners claim that the vice squad is costing them business because smokers are staying away--although that claim is yet to be borne out by figures on gross receipts.

Out-of-state tourists may be surprised that smoking is forbidden at California bars but there is no indication that the San Diego enforcement strategy is scaring them away. On the other hand, employees where bar owners have cracked down on smoking have offered testimonials about the delight of a smoke-free workplace.

Paul Crawford, owner of an English-flavored bar called Shakespeare Pub, jokes that the only people smoking at his bar are English tourists who think the No Smoking signs are some sort of American joke. He sets them straight.

In May, Police Chief Jerry Sanders, responding to encouragement from the City Council, had a memo read to all officers at roll call announcing that the vice squad would be enforcing the ban and that uniformed officers could take complaints or, if they spotted a bar smoker during their regular rounds, write a citation.

Sanders’ memo to his troops had a tone of let’s-be-careful-out-there: “Persons in favor of and against the ban feel strongly about the prohibition.”

To be sure, the smoking law is not a high priority among the vice squad in terms of time or manpower. But when there is time, and when the complaint referrals from the health department reach critical mass, the vice squad takes action.

Bad News Travels Fast

When the squad is on smoking patrol, however, there is a law of diminishing return.

After a few bars are hit, word appears to spread quickly to nearby establishments: “Yipes, the cops are loose!” Police suspect that a “phone tree” early warning system exists among bartenders.

It is not uncommon for vice squad officers to enter a bar and find it so smoky it looks like a foggy morning in San Francisco--yet not a single person is smoking. At that point, the vice squad knows it’s time to quit for the night or switch to a neighborhood on the other side of town.

San Diego County remains a target-rich environment for smoking citations. The Department of Health and Human Services received 1,561 complaints about bar smoking last year, alleging smoking scofflawism at three-quarters of the county’s 469 stand-alone bars.

About half the complaints are within the city limits. The others are in smaller cities or the unincorporated areas where enforcement is up to suburban police and the Sheriff’s Department. The latter began its enforcement effort with uniformed police this weekend.

“We’ve had a grace period for a long time. Now it’s time for enforcement,” said Sheriff’s Lt. Ron VanRaaphorst.

When the health department receives a complaint, the bar owner is sent a letter asking for compliance. Health inspectors then make an unannounced visit. If they don’t see any smoking, the case is closed. If they see smoking, they refer the case to police.

Some bars play it straight. At Your Place, vice officers found smokeless air, “No Smoking” signs posted all around, and even a framed copy of a warning letter from the health department.

Other places send mixed messages. “No Smoking” signs are plastered on the walls, but ashtrays are on the tables and cigarettes are for sale. Sometimes swastikas have been stamped over the “No Smoking” signs.

At Cheers, a sign warning of the maximum $273 fine is posted at the door, but inside is a fight-back sign from the National Smokers Alliance: “My Customers Are My Business. Repeal the Smoking Law.” Cigarettes are for sale behind the bar.

Not all busted smokers see red. There are also expressions of contrition and tales of woe.

“I’m 67 and I can’t stop smoking,” said one man as he accepted his citation outside Cheers. “These guys are only doing their job.”

But Tom McIsaac, 62, who was cited in October at Scolari’s Office and is paying a $250 fine on the installment plan, has a different take: “This is taxation without representation. That’s why we got rid of King George, isn’t it?”