Bar closing kills challenge to smoking ban

A Macomb county bar owner’s challenge of the Michigan Clean Indoor Air Act failed because he closed his business and had no intention of reopening it, the Michigan Court of Appeals ruled in the unpublished Department Macomb County Health Dept. v. Boyd Cottrell.

Cottrell owned the fantastically named Sporty O’Tooles [sic]. He challenged the county health department’s enforcement of the MCIAA, of which the department caught him violating on more than a few occasions, according to the opinion.

But Cottrell closed the bar, losing his standing to fight future enforcement of the act.

Here, defendant’s bar was cited multiple times by the Health Department for violating the smoking ban on multiple occasions. Defendant responded by suing to enjoin the smoking ban’s enforcement, arguing that the law was unconstitutional under, inter alia, an equal protection theory.

Did he? The caption suggests he filed a motion as part of a hearing to do with one of his violations. Anyway…

At oral argument, defendant revealed that the bar has gone out of business since this litigation was initiated, and further revealed that defendant has no plans to reopen another bar. The Health Department indicated at oral argument that, because defendant’s bar has closed, it could no longer seek to sanction defendant’s bar for violations of the smoking ban. In short, it is impossible for us to grant the relief requested by defendant. Defendant is now out of business— accordingly, enjoining the ban’s enforcement would not provide him any relief. Moreover, because defendant has no plans to reopen, the continued enforcement of the smoking ban will not continue to affect him in a collateral way.

Farewell, Sporty O’Tooles, we hardly knew ye.

Counties, bars still up in arms over smoking ban

The smoking ban passed by the Michigan legislature goes into effect in less than a month. And, typically, the state, its agencies and the counties still have no idea how they will enforce it. [The Detroit News].

"What we have to do is figure out some details to make sure people are in compliance, and that we have a law people can follow," said state Department of Community Health spokesman James McCurtis. The biggest aspect of the law facing state health officials is determining who will police establishments to ensure patrons don’t get away with sneaking a smoke.

"Most likely it will be the local health departments (enforcing the ban). It will fall into restaurant inspections (and) it will be complaint based," McCurtis said.

"It’s not quite concrete, but I guarantee it will be concrete by May 1," he added. "I’m sure some (local health departments) may be unhappy."

Oakland County basically says it won’t do anything if it receives a complaint …

Kathy Forzley, manager of the Oakland County Health Division, said if the county hears a business isn’t conforming, "Complaints will be referred back to the state."

… while Wayne and Macomb counties say they will enforce it as part of its restaurant inspections.

Michigan is the 38th state to pass such a ban, so its not as if we’re blazing any new trails, so to speak. I don’t know. Maybe the state should see how, say, New York, enforces its smoking ban, which has been in place since 2003.

The restaurant associations are upset, naturally, claiming that the ban will kill their business. But this hasn’t happened in the states that have banned smoking. In fact, their business improved. [Cleveland Plain Dealer]

Cities and states that have banned smoking didn’t suffer a dramatic or permanent falloff in business at bars and restaurants, as owners had feared.

When Ohio adopted its ban in 2006, "there was a lot of concern that [bar and restaurant owners] would lose business, but none of our members have said that the ban has impacted them negatively," said Jarrod Claybaugh of the Ohio Restaurant Association.

Instead, the smoking cessation has encouraged nonsmokers, once fearful of smoke’s effect on their health and dry-cleaning budgets, to enjoy nightlife and visit bars and restaurants more often, he said.

Anecdotal evidence, you say? Consider this:

In Chicago, which banned smoking in 2005, the restaurant business is strong, said Fabian Martinez, a manager at Giordano’s pizzeria.

"We haven’t noticed any change," Martinez said. "I think we did [customers] a good service and a good thing."

In Nebraska, which adopted its smoking ban last summer, restaurants and bars with outdoor patios, where smoking is allowed, have fared well, said Molly Goodman, manager of Sullivan’s Steakhouse in Omaha.

Montana banned smoking in restaurants and workplaces in 2005 and in bars last year. While bowling alleys and casino bars suffered, the ban didn’t have the harsh repercussions business owners had feared, said Lynn Fiegel, manager of the Windbag Saloon and Grill in Helena.

New York City, among the first municipalities to prohibit smoking in 2003, is thriving as a bona fide smoke-free zone.

"People have become accustomed and expect to not experience secondhand smoke," said Beth Kilgore, spokeswoman for the city’s Bureau of Tobacco Control, a division of the city Health Department. "It has become a nonissue to bars and restaurants."

Instead, business is up at New York’s eating establishments. The number of liquor licenses increased 11 percent, bar and restaurant employment rose 18 percent, and tax receipts are up 66 percent since the ban went into effect, Kilgore said.

But there is one outlier:

But Rick Sampson, president and chief executive officer of the New York State Restaurant Association, remembered that some businesses lost up to a quarter of their sales during the first few months of the ban.

"Unfortunately, [smokers] didn’t blame the government for telling them they couldn’t smoke and they blamed the individual bars and restaurants instead," Sampson said. "They flexed their muscle by not coming back."

AHA! BEWARE THE SMOKER REBELLION! But, keep reading:

Smokers began returning to their favorite spots four or five months later, Sampson said, and today the ban is a "nonissue." Owners say their bars and restaurants are easier to clean and manage, and employees report feeling healthier, he added.

The point is that the whining and complaining is not worth the time. The empirical evidence is in from several states – including neighboring states, which opponents of progress often like to use as a reason why change won’t work (“Sure, it works in hippie communes like New York and California, but it won’t sell in Middle America!”) – and it shows that smoking bans not only won’t hurt business in restaurants and bars, but in the long run, will improve it.