BAR PATRONS STILL SMOKE DESPITE BAN

Patrons are lighting up throughout the city and county as owners take
advantage of law's loopholes and sporadic enforcement.

Los Angeles County health officials have sent notices to at least 104 Los
Angeles-area bars where authorities say patrons or employees ignore the new
state law against smoking. But county and city authorities acknowledge that
the letters may be meaningless because enforcement of the ban, which took
effect Jan. 1, is likely to be spotty. They said the statute is riddled
with loopholes that could allow smoking to continue in bars.

Under the ban--the final piece of a landmark 1995 workplace anti-smoking
law to take effect--authorities can fine taverns that intentionally permit
smoking and the smokers. But as local law enforcement and business owners
struggle to translate the statute into real-world use, a number of bars
skirt the ban by meeting only the minimum requirements: posting a "No
Smoking" sign, asking patrons not to smoke--and then allowing them to light
up anyway.

That was the case Monday night at the Bull's Eye Grill & Tavern in
Northridge, where bartender Suzette Chontos served beer and some legal
interpretation to the smokers at the counter. "If you're a smoker, you're a
smoker. They can still come in here," she said. When one patron sauntered
up and drew a cigarette from his pocket, she said, "As you know, it's
against the law." When he nodded, she nudged an ashtray in his direction.
"As of now," she said, "it's business as usual."

Under the law, authorities can cite a bar owner or patron with a $100 fine
for the first offense. The penalty can increase to $500 for repeated
offenses and to $7,000 if Cal/OSHA concludes that smoking endangered
employees in their workplace. Enforcement is left to cities and counties,
and officials in certain parts of the state are cracking down on smoking
harder than others.

Los Angeles city officials say they are taking a softer approach, issuing
two warning letters before a law enforcement agent is sent to inspect a
bar. County tobacco control Director Ingrid Lamirault and state officials
said that they may have to count on the bar owners to enforce the statute.

"We're at a stage with this new law where we don't have concrete
enforcement procedures in place," Lamirault said. But "having cigarette
police go out is not the way to make this public health law work."

Some local investigators say the statute is poorly written and nearly
impossible to enforce. "If you post the signs, you can allow all the
smoking you want," said Los Angeles Fire Capt. John Kitchens, who runs the
legal liaison unit that inspects bars for the city. "The owner has no
control over the patrons." Many bar owners agree and tout what they
believe is a ticket-proof way to obey the law without irritating smokers.

"It's a matter of complying with the letter of what it said," said South
Bay Beverage Assn. President David Berryhill. At Berryhill's Bac Street
Lounge in Redondo Beach, patrons are asked to sign a log confirming that
they have been told that it is illegal to smoke in the bar and that
management has posted a "No Smoking" sign.

"If you [still] choose to smoke, we're going to get you an ashtray and ask
you what you want to drink," he said. At Ireland's 32 in Van Nuys,
bartender Alan Singleton said he rigidly applied the ban for the first few
days after it took effect, but thought twice when business dwindled. By the
end of the first week, the bar decided to comply only with the letter of
the law, and its smoking customers returned.

"It was either do it or go under," Singleton said. Now "we have to inform
them it's against the law, then, let 'em smoke."

At the Gold Apple in Northridge, patrons bring their own ashtrays. At the
Blue Cafe in Long Beach, management has erected a tent over the patio so
patrons can smoke outdoors. But owner Vince Jordan noted that if someone
smokes inside after being asked not to, the bar is "off the hook."

"They have to use reasonable steps to prevent smoking--that is what the
statute requires," said Assistant Los Angeles City Atty. Jolaine Harkless,
whose office would have to prosecute offenders. "There may be some issues
raised because this provision [posting signs and ignoring offenders] is
coming into play," she said. "Some of these questions may have to be
answered down the line."

Bar owners have vetted the new law for other loopholes. Because the law is
part of the labor code and is designed to protect employees from exposure
to smoke, some bars have tried to become "owner-operator" businesses with
no employees. Another section of the law permits bar employees who fear
"physical harm" to let patrons smoke; state authorities worry that
bartenders may use that as an excuse to not enforce the ban.

"If they take all the steps the law says they have to take, they would not
be liable," said Paul Hunting, a health education consultant for the state
Department of Health Services. A patron who ignores the bar's request to
put out a cigarette may be fined, but Hunting said he knew of no instance
when that has happened since smoking became illegal in restaurants in 1995.

"It's going to take some education and consistent enforcement" to make the
law work, he said. "In places like Los Angeles, which has almost 7,700
bars, you can't get to everyone right away."

But while authorities grapple with how to enforce the ban, bar owners who
have barred smoking outright say they are losing business to bars with a
more laissez faire environment. "If they get away with it, we're definitely
going to be hurt," said bartender Larry Bolen at the Valley Inn in Sherman
Oaks, which refuses to serve patrons who are smoking. "We've had some cigar
smokers say they're not going to come back. I don't know where they go."

Copyright Los Angeles Times