Local Government and Smoking Ban and Retail and Government & Economic Development

Year after smoking ban, only 9 businesses have been fined

March 19, 2007

County health inspectors have hardly blown the door down on huffers and puffers a year into the city's smoking ordinance--at least compared with a model city for smoking enforcement that helped inspire the local law.

While the Marion County Health Department took 209 complaints and issued citations against nine businesses for fines totaling $1,000, Lexington, Ky.'s health department issued 366 citations on 828 complaints during the first year of its law.

Each of those Lexington citations issued in the 12 months ending April 2005 included a potential fine of $100 to $500--amounting to at least $36,600. Officials there said they couldn't recall how much was ultimately collected because many of those were consolidated and challenged in court.

Marion County officials said they've deliberately taken more of an educational approach toward the ultimate goal of improved public health.

"We're not heavily trying to fine people. This has not been a moneymaker for us," said Dana Reed Wise, bureau chief of the MCHD's Bureau of Environmental Health.

One of the biggest advocates of a smoking ordinance, former Indiana Health Commissioner Richard Feldman, said the educational approach tends to work in the vast majority of cases, without the need "to throw the book at them."

Public pressure and a realization that "business quickly improves" after a ban--contrary to business groups' predictions--often boosts compliance, said Wendy Cohen, a fierce anti-smoking advocate who helped persuade Zionsville to adopt an ordinance last summer.

"The public wants it and applauds it," she said. "The majority of us are nonsmokers."

MCHD officials say the educational approach has been effective: 46 complaints were received in the last six months, versus 163 in the six months after the ordinance became effective in March 2006.

Most cases were resolved with warning letters and fines, but three came before Marion County Environmental Court, two resulted in administrative hearings, and one ended with a voluntary settlement.

"We wanted people to understand that secondhand smoke is a serious public health issue," MCHD spokesman John Althardt said of the decision to take an educational, rather than punitive, approach. "We felt like that was the best approach for our community. Would it have worked as well in another community? It's hard to say."

Now and then

Lexington faced a different environment when its law took effect in 2004. Then, the notion of a smoking ban in public places was novel in the region, especially in the heart of tobacco country.

Also, Lexington's ban is broader in many respects than the one in Indianapolis, where 387 firms have qualified for exemptions to the ordinance--so more complaints and fines might be expected in the Horse Capital of the World.

Indianapolis bans smoking in most public places, including restaurants, malls and sports arenas. Some establishments can qualify for exemptions, such as those that prohibit minors.

And by the time Indianapolis passed its ordinance, the concept was not as fuzzy to society. That assured faster compliance.

"A lot of jurisdictions are not having the same kinds of problems," said Jessica Cobb, environmental health team leader for the Lexington-Fayette County Health Department.

While firms in Lexington have had years now to get used to a smoking ordinance, that city's health inspectors have had recurring enforcement challenges in traditionally smoky places such as bars, bingo halls and strip clubs.

Locally, inspectors found that many restaurants and bars, which howled the loudest during the City-County Council's consideration of the ordinance, tended to get the message quicker. Non-food businesses, such as hardware stores, often said they didn't realize the smoking law applied to them, Althardt said.

Of the 209 complaints filed last year, 42 were generated by the department's 24 health inspectors and 167 came from the public.

Like businesses and the public, those officials needed to get up to speed in the first year, said Angela Mansfield, a City-County councilor who co-wrote the ordinance.

Initially, she saw enforcement lacking against businesses that permitted smoking in the bar portion of a no-smoking restaurant. She and ordinance co-author Greg Bowes met with health officials to clarify that that was no longer permitted.

The first year also has revealed other quirks in the ordinance.

Butting heads

One of the few court cases to arise involved Hair Dimensions, 2440 Lafayette Road.

A Health Department inspector darkened the door of Teresa Scruggs' salon in March 2006 following a complaint from an unnamed person who said smoking in the salon was "very offensive to the customers, especially those who do not smoke," according to a department report.

First, Scruggs received a violation notice. Weeks later, an inspector returned and spotted ashtrays, the report said, including one with a cigarette butt. Scruggs was greeted with a $100 fine.

"I told [the inspector], 'I'm not paying any fine'" she recalled, and vowed to fight the department in court.

Scruggs argued that the ashtrays in question weren't used for smoking. Rather, the loops designed to hold cigarette butts are ideal for holding razor blades with long handles used to trim hair. Another held ashes, but those ashes were burned outside and used to remove hair dye, the salon said.

The Health Department's case was dismissed in Marion County Environmental Court, partly on grounds the inspection reports were inconsistent. But it was not without cost to the small-business owner in the form of time away from her shop.

"That's what I resented," she said.

The ordinance has been tested in other ways, too--including its jurisdiction.

Inspectors seemed to have a slam-dunk in July when they visited the smoking room for passengers and employees at Indianapolis International Airport.

"While writing the [violation], I sat outside the room and could smell smoke when the door opened," the inspector wrote.

But airport officials said the department couldn't legally butt in. Sure enough, after an exchange of e-mails with its own lawyers, the department realized that the ordinance didn't apply there because the airport is its own municipal authority.

As for whether it should even have a smoking room, "the airport is involved in an extensive study on that issue ... the notion of a smoke-free environment," said airport spokeswoman Patzetta Trice.

The Health Department did prevail in a stare-down with Teamsters Local 135, which argued it qualified for an exemption in the no-smoking ordinance for certain private clubs.

An inspector found butts and ashtrays in several rooms of the union hall. An administrative law judge found that the union met all but one requirement for exemption--it didn't have an alcoholic beverage license.

Hold the hooka

Another test for the ordinance involved the peculiarities of some restaurants.

In September, inspectors wrote up Khoury's, a restaurant on Broad Ripple Avenue, for allowing customers to smoke a "hooka"--an after-dinner water pipe and cultural tradition in the Mediterranean.

The restaurant's owner argued that the water pipe didn't contain tobacco products and that patrons were not allowed to smoke tobacco. But an administrative law judge ruled that the ordinance isn't limited to tobacco in its efforts to ensure "smoke-free air."

"In view of the broad and non-tobacco-specific definition of 'smoking,' it is [my] opinion that any change or clarification to the meaning of 'smoking' should come from the [City-County] Council, which drafted this definition," wrote Judge Deborah Albright.

Another puzzling aspect of the ordinance is what constitutes an enclosed space--where smoking is verboten. Just last month, an inspector rolled up to One North Capitol, where several people were puffing at the front doors of Teachers Credit Union.

"Area seems to be an enclosed space as defined by the ordinance," wrote the inspector, who was hesitant to approach landlord Duke Realty Corp. until MCHD managers looked at a photo and made a determination.

All or nothing

Also problematic is when a non-smoking area borders a smoking area, such as a restaurant/bar setting.

Daddy Jack's Restaurant & Bar and adjacent Kona Jack's Fish Market & Sushi Bar, at 9419 N. Meridian St., drew at least two complaints over the last year and three fines totaling $550--the highest for a single business owner.

Kona Jack's is non-smoking; Daddy Jack's isn't. One patron complained after seeing children eating on the Kona Jack's side. That's a problem under the ordinance because the restaurants are physically connected and each is accessible by the other's patrons.

Restaurant owner Jim Thompson said there's a wide distance between the two areas. He also said the ordinance could be open to interpretation. But after months of discussions, he decided to go smoke-free in both establishments, starting next month.

"I'm kind of tired of fighting it," Thompson said. He's also concluded that his revenue probably won't be hurt in the long run.

Shelley O'Connell of Smoke Free Indiana said overall enforcement of the smoking ordinance has been good, and "we're seeing more and more that compliance is very high in Marion County."

Mansfield said she'd next like to see the ordinance extend to businesses such as bowling alleys. They were exempted to get the political support of three councilors needed to pass the ordinance.

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