No Smoke: Itâ's the Law

Butt Out

After decades of failed attempts, the tobacco state of Tennessee is finally about to enact its first workplace anti-smoking law on Oct. 1.

Patrons may breathe easier, but how will business owners cope?

by Mike Gibson Photos by Sheena Patrick

On the inside, Spankyâ’s Grill in East Knoxville has the feeling of a mom-and-pop dinerâ"with homey touches like checkerboard tablecloths and lacy white curtains hung from the lone window in the cornerâ"only with a sports-bar twist. Thereâ’s a big-screen TV behind the bar counter, set high and centrally located so nearly all of the grillâ’s patrons have a clear view of televised University of Tennessee football games and other featured sporting events. And then thereâ’s the Volmania flourishes: orange and white streamers and orange pendants and orange table toppers, and a wall-sized game calendar that ends, perhaps too hopefully, with the Southeastern Conference championship game on Dec. 1.

But despite the fact that Spankyâ’s owners Sheri Katulich and Heather Rumbut envisioned the diner they opened seven months ago as a restaurant, rather than a nightspot or a sports bar, Spankyâ’s seems to have an image problem that limits its appeal. Rumbut says families that might otherwise appreciate daily home-cooked lunch specials such as meat loaf and spaghetti and country-fried steak generally donâ’t patronize the establishment off Asheville Highway, perhaps put off by the 60-year-old buildingâ’s less-than-accommodating outward appearance, which is much like one of those windowless concrete beer bunkers usually stationed in rougher sections of town. â“Once they come in, most people say we look nothing like we do from the outside,â” Rumbut says. â“We try to market to families, but only a handful came in all summer long.â”

What Spankyâ’s does bring in is smokersâ"maybe as much as 75 percent of its mostly blue-collar regular customers, by Rumbutâ’s estimate. And because of Tennesseeâ’s new Non-Smoker Protection Act, which takes effect Oct. 1 and will spell the end of smoking in all but a handful of restaurants and other businesses, Rumbut feels the state has forced her to abandon any notions of appealing to a family-oriented clientele.

How so? To comply with the non-smokers act without losing their loyal patrons, Rumbut and Katulich have chosen to make Spankyâ’s a 21-and-up establishment full-time, in keeping with one of the actâ’s exemption clauses. The 21-and-up exemption is intended to exclude bars from having to comply, but restaurants that wish to do so can also keep smoking privileges by adhering to the over-21 rule.

â“We just opened, and we couldnâ’t run the risk of losing what we have, our customers who want to smoke,â” Rumbut says of her establishment, which does offer a beer selection, but no liquor. â“Weâ’ll be carding people now, only we card them for eating, instead of alcohol.â”

Itâ’s easy to sympathize with Rumbut, a struggling small business owner with a considerable financial stake in her fledgling enterprise. But social change rarely comes without cost, and many non-smoking activists feel Tennesseeâ’s joining the great majority of states that already have some sort of significant public smoking ban already in place was long overdue. And smokingâ’s toll in health costs and human livesâ"according to one health organization, 9,662 state residents die every year as a â“direct resultâ” of cigarette smokingâ"would seem to be a hefty counter-argument to those claims of economic hardship as a result of a smoking ban. And according to some non-smoking groups, studies in the wake of bans in other cities show a powerful correlation between smoking bans and a decline in smoking-related health issues such as heart attacks.

So how did Tennessee finally overcome its powerful pro-tobacco biases and come to embrace progressive anti-smoking legislation? And what does the recent history of legislation in other states say about the prospects for affected businessesâ"particularly in the restaurant industryâ"to adapt?

Undoubtedly, the Non-Smoker Protection Act will spell significant changes in the way Tennesseans live and work. And apparently most of us view those changes favorably; polls taken prior to the actâ’s passage showed public support for a statewide prohibition on smoking in the workplace hovering somewhere around 60 to 70 percent.

â“Folks spoke up like never before,â” says Nathan James of Tennesseeâ’s American Heart Association, referring to both the poll numbers and to a torrent of pro-smoking-ban letters directed at the Tennessee Legislature this year. â“The Legislature had hundreds of emails, tremendous media coverage. The majority spoke out, and they said â‘I donâ’t want to have to get my suit dry-cleaned after dinner anymore.â’â”

But that still means that a significant minority feels that the non-smoking act constitutes a serious infringement on the lives and livelihoods of smokers and the business owners who serve them, that itâ’s just not right for meddling Big Government to make business decisions and lifestyle choices for the people itâ’s supposed to serve.

â“Iâ’m not a smoker myself,â” Rumbut says, â“but I resent that as a small business owner, you canâ’t make the decision in your own place.â”

Robert Pritchard, a Maryville laborer who is president and founder of Tennesseeâ’s YesSIR (Yes Smoking in Restaurants) smokerâ’s rights organizations, and Southeast Regional Director of the Smokerâ’s Club, puts forth the classic smokerâ’s lament when he notes, â“I counted on a website that there are 170 [restaurants] in Knoxville and Blount County where they have non-smoking policies already, but yet they still want a smoking ban. Itâ’s a matter of choice; you donâ’t want to be around smoke, then go to a place that doesnâ’t allow smoking.â”

According to John Banzhaf, executive director and founder of the long-running national non-smokersâ’ rights organization ASH (Action on Smoking and Health), 31 states now have laws similar to Tennesseeâ’sâ"in essence, laws that prohibit smoking in most workplaces, the most common exception being bars. Twenty-two of those, however, have also extended the ban to bars.

â“It seems that at this point, Tennessee is coming into the mainstream. Welcome,â” Banzhaf says. â“Tennessee is a tobacco-growing state, so you wouldnâ’t expect it to be at the forefront. In that sense, I think itâ’s a credit to the state thatâ’s it made the move when it did.â”

It didnâ’t come easy. Non-smoking activists have always considered Tennessee to be a hard case, even among other tobacco-growing states. According to the Campaign for Healthy and Responsible Tennessee (CHART), a coalition of health organizations including Tennessee chapters of the American Heart and America Lung associations as well as the American Cancer Society, 26.8 percent of adult Tennesseans are smokers, as compared to 22 percent nationwide. The figure is even higher among the stateâ’s population of high-school students, at 27.6 percent.

The American Lung Association, meanwhile, gave Tennessee abysmally low ratings in its State of Tobacco Control 2006 report, including failing grades in the categories of Cigarette Tax, Tobacco Prevention and Control Spending, and Smokefree Air. Only in the category of Youth Access to Tobacco did the state receive a passing grade.

But every time a piece of progressive-minded anti-smoking legislation would reach the state House of Representatives, the politics of tobacco would kill the bill before it even reached the floor.

â“Tennessee is unique in that every bill that deals with tobacco is referred to the House Standing Committee on Agriculture, instead of a health committee, as in most states,â” says Nathan James, who is also vice-president of CHART. â“And the chair of the committee has always been a tobacco farmer, until this year. Itâ’s a very difficult set of challenges in Tennessee, as compared to other states. One of the plants on the state seal is a tobacco leaf. The chandelier in the Senate chamber is adorned with golden tobacco leaves. Tennessee was always considered the Mount Everest of tobacco control. Everyone figured weâ’d be the last to pass a workplace act, but we proved them wrong.â”

Boiled down to its essence, the Non-Smoker Protection Act, signed into law June 11 and taking effect Oct. 1, prohibits smoking in all enclosed public places, including: restaurants; public and private education facilities; health care facilities; hotels and motels; retail stores and shopping malls; sports arenas (including enclosed areas in outdoor arenas); lobbies, hallways and other common areas in apartment buildings and other multiple-unit residential facilities; child-care and adult day-care facilities.

Areas exempt from the ban include: private homes, residences and motor vehicles (unless used for child care); non-enclosed areas of public places; venues that restrict access to persons who are 21 years of age or older at all times; private business with three or fewer employees, where smoking may be allowed only in an enclosed room not accessible to the general public; private clubs; smoking rooms in hotels and motels, provided that no more than 25 percent of the rooms in the establishments be designated as smoking rooms; tobacco manufacturers, importers and wholesalers; retail tobacco stores that prohibit minors; nursing homes and long-term care facilities; commercial vehicles occupied only by the operator.

Penalties include $50 fines for individuals who knowingly smoke in prohibited areas, and fines ranging up to $500 for businesses that have failed to comply with any of the actâ’s requirements.

According to James, a stronger version of the bill originally passed the state Senate, but it was diluted by the exemptions when it reached the House of Representatives. Even with the exemptions, though, James says CHART and other members of the non-smokers coalition were pleased with the final bill.

â“We wanted there to be no exemptions, of course,â” James says. â“But the ones we ended up with were not deal breakers. This bill constitutes much better public policy than what we had before.

â“We were all pleased we were able to avoid another pocket veto in the agriculture committee.â”

Among businesses, the most vocal opponents of a comprehensive workplace smoking act have traditionally come from the restaurant industry. Year after year, the Tennessee Restaurant Association stood in opposition to any such legislationâ"every year, that is, until 2007, when TRA finally gave in and supported the Non-Smoker Protection Act.

â“I think TRA realized it was a worker-safety issue, and wanted to take care of employees,â” says James.

Indeed, some restaurants were already ahead of the curve. In Knoxville, the Tomato Head on Market Square has been non-smoking since 1996, says owner Mahasti Vafaie, who opened the restaurant in 1990, at which time the establishment actually offered an assortment of imported cigarettes.

â“Weâ’d made the smoking section smaller and smaller, until it was only four tables,â” Vafaie remembers. â“Itâ’s an open restaurant, so the smoke wafts. Capping ashtrays was a big problem, keeping them from spilling over and looking yucky. And I really got tired of smelling like smoke. So we finally got rid of the smoking section entirely.â”

At the Bistro on Gay Street, longtime manager Martha Boggs says she knew workplace smoking legislation was â“a no-brainer... it was inevitable,â” though she waited until April of 2006 to declare the Bistro a non-smoking establishment.

â“We have no smoke filtration, and I was noticing that we were losing guests who wouldnâ’t eat here because it was too smoky,â” says Boggs. â“Someone unfamiliar with the place would come in, and leave because of the smoke. I had put off going non-smoking, hoping they would pass a law first. But it finally came down to the good [of making the move] outweighing the bad. I decided it was better to risk losing a few customers to have a cleaner environment.â”

Neither Vafaie nor Boggs believes their non-smoking policy has hurt business in the long run. At the Bistro, Boggs says sales improved by about 7 percent in the year following the smoking banâ"a typical yearly gain for the 25-year-old restaurant.

â“Iâ’m not sure there was ever an advantage to having smoking,â” Boggs says. â“Our smoking regulars still come, they just started going outside to smoke. The only serious complaints we get are from people going to theater events [at the adjacent Bijou Theatre]. They see us as just a bar, and figure they can come in for a drink and a smoke before showtime.â”

â“I think in the long run, we actually grew because we banned smoking,â” Vafaie says. â“Our regular smokers still ate here, and I think even more people enjoyed the fact that we were smoke free.â”

Another, perhaps unseen benefit of going smoke-free: â“Iâ’ve noticed fewer incidents of respiratory call-ins from our employees,â” says Boggs. â“We have fewer colds and fewer cases of the flu.

â“Itâ’s rare that any of our people catch a cold; when they do, itâ’s usually a smoker,â” she laughs.

Whether smoking bans have any significant long-term economic consequences, good or ill, for the businesses they most effect is still under debate. Anti-smoking forces cite a handful of studies that seem to indicate little or no net effect. â“The reputable studies show virtually no harm at all,â” says Banzhaf.

â“Our experience is that once smoking bans go into effect at particular establishments, people say things like, â‘Iâ’ll never go there again,â’â” he continues. â“But the fact is they rarely go through with that. They tend to follow the same patterns they always have; they go to the same places, and they smoke outside.â”

Likewise, an analysis of literature by the Smoke-Free Environments Law Project, a Michigan-based organization that compiles information on the harmful effects of environmental tobacco smoke, concludes that â“while the tobacco industry has for years stated that smoke-free policies will reduce customer patronage of smoke-free businesses, there are no credible, scientific studies that support these claims.â”

Smokersâ’ rights groups, on the other hand, generally counter with anecdotal evidence, and with claims that non-smoking groups (â“Nanniesâ”, as one smokersâ’ group disparagingly calls them) cook the books by employing questionable statistical evidence, and by ignoring the fact that broad statistics often mask the damage done to individual businesses.

Libertarian Web crank Dave Hitt writes that â“studies funded by anti-smoker groups achieve their numbers by: including many businesses which are not affected by bans; under-representing businesses that are the most impacted by bans; excluding many of the businesses that are most devastated by bans (pools rooms, bowling alleys, etc.); ignoring the issue of compliance.â”

More comical is the Smokerâ’s Club, Inc.â’s so-called â“Encyclopedia of Ban Damage,â” an aggregation that lists not only reports and quotes from individual business owners in the U.S. and Canada who claim to have been adversely affected by smoking bans, but also a cataloguing of violent acts and freak accidents that allegedly came about as a direct result of smoking bans: â“NY: Bouncer kills a smoker with a pool cue... Canada: A 65-year-old smoker dies out in the cold...â” (The lone anecdote from Tennessee cites an instance where a 14-year-old boy allegedly shot a school bus driver to death after she reported the boy for using smokeless tobacco on the bus.)

Economist Michael Pakko argues more convincingly than most, however, when he observes that itâ’s probably too early to make any definitive statements on how smoking bans will play, economically speaking, over time. â“Discerning economic impact can be difficult,â” Pakko writes. â“Widespread smoking bans are a recent phenomenon; so data are limited. Many smoking bans are riddled with exemptions or were passed in communities where nonsmoking establishments were already becoming the norm... The issues remain hazy.â”

But economic impact has never been the primary focus of smoking bans; anti-smoking legislation is first a matter of public health, and itâ’s hard to conceive that such legislation wonâ’t have at least a slight positive impact in that regard, given the long and well-catalogued history of smokingâ’s ill effects.

And non-smoking activists like Banzhaf argue the impact is anything but slight. Banzhaf cites a study from Helena, Mon., where a workplace smoking ban was enacted, then eventually lifted again. The study showed that heart-attack admissions at local hospitals dropped by 50 percent while the ban was in effect, then rose again by the same shortly after it was rescinded.

â“Other, similar studies have also showed big drops, though not quite as big,â” Banzhaf says. â“Itâ’s very clear that smoking bans measurably reduce health problems.â”

And perhaps social change, of any sort, is never without a certain price. Still, for a least a handful of businesses like Spankyâ’s Grill in East Knoxville, Tennesseeâ’s looming Oct. 1 workplace smoking ban is a frightening prospect, fraught with unanswered questions.

â“We were supposed to receive a packet from the health department, giving us the details on procedure and enforcement,â” says Rumbut. â“But itâ’s late September, and they still havenâ’t done that. Theyâ’re still talking about it, they say. And we donâ’t know how it will be enforced, other than itâ’s just our responsibility.

â“I really wanted the restaurant to be open for all of the people of this area,â” Rumbut continues. She says she and Katulich both have tremendous financial as well as emotional capital invested in the success of Spankyâ’s Grill. â“Going 21 and up was a really disappointing choice. But we felt it came down to matter of either, we stay open, or we close.â”

Public Chapter 410â"better known as the Non-Smoker Protection Actâ"takes hold in Tennessee on Oct. 1, effectively banning smoking in most workplaces and businesses. Hereâ’s what you need to know:

Where Smoking is Prohibited

⢠Restaurants

⢠Educational facilities

⢠Health care facilities

⢠Hotels and motels

⢠Retail stores and shopping malls

⢠Sports arenas, including enclosed public areas in outdoor arenas

⢠Restrooms, lobbies, reception areas, hallways and common-use areas, including those in apartment buildings and multiple-unit residential facilities

⢠Child-care and adult day-care facilities

What Areas are Exempt

â¢Private homes, private residences, and private motor vehicles unless used for child care or day care

⢠Non-enclosed areas of public places such as open-air patios, porches, or decks; areas enclosed by garage-type doors when such doors are open; areas enclosed by tents or awnings when removable sides or vents are opened. Smoke from these areas must not infiltrate into areas where smoking is prohibited.

⢠Venues that restrict access to persons 21 years of age or older at all times.

⢠Private businesses with three or fewer employees, where smoking may be allowed only in an enclosed room not accessible to the general public.

⢠Private clubs

⢠Smoking rooms in hotels and motels, provided that no more than 25 percent of the rooms can be designated as smoking rooms.

⢠Tobacco manufacturers, importers, and wholesalers.

⢠Retail tobacco stores that prohibit minors.

⢠Nursing homes and long-term care facilities, which are subject to the policies and procedures established by those facilities.

⢠Commercial vehicles when the vehicle is occupied only by the operator.

Requirements for Business Owners

⢠â“No Smokingâ” signs must be posted at every entrance to every public place and place of employment where smoking is prohibited.

⢠All existing and prospective employees must be notified that smoking is prohibited.

⢠An owner, manager, operator or employee of an establishment where smoking is prohibited must inform anyone smoking in the establishment that smoking is prohibited on the premises.

Penalties

⢠Anyone who knowingly smokes in an area where smoking is prohibited is subject to a $50 fine.

⢠A business that knowingly fails to comply with the requirements of the act will be subject to: a written warning on first violation; a penalty of $100 for a second violation within a 12-month period; a penalty of $500 for a third or subsequent violation in a 12-month period.

Enforcement

The Tennessee Department of Health and the Tennessee Department of Labor and Workforce Development are charged with enforcement of the act. Complaints concerning violation of the smoking ban may be registered with those departments.

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