Up in smoke

Up in smoke

The no-smoking ban hurts bar business

By Isabel A. Suárez

Since the no-smoking ban, my business is failing. How did this come to be?

I am the third generation owner of a small bar in Dayton. Since the state passed the no-smoking law, I have seen my business dwindle to the point where my only option is to close down. Two years ago I even took a full-time job during the day to support my family. This is the same bar that has supported not only my family, but my employees’ families as well. I am in emotional despair for losing my family’s legacy. How did this come to be?

Sincerely,
Broken-Hearted Bar Owner

Dear Broken-Hearted,
While your question does not contain a legal issue, the no-smoking law has been subject of heated discussions since it passed. From the get-go, voters were confused as to how to vote, because of the way it read on the ballot. Many unwittingly voted contrary to their desire. What most people do not know is that this law was allegedly created for the protection of restaurant and bar workers from secondhand smoke. More interestingly, the public also did not know the millions of dollars spent by companies that manufacture smoking cessation products, to lobby the bill, both in Ohio and across the country.

No one will argue that smoking is healthy. What many patrons and owners (who vote) resent, is whose interests the legislature was really protecting with the passing of this law. Certainly not bar owners, who offer little if no food, in their establishments. While approximately only 19 percent of the population smokes, 8 out of 10 people who frequent bars, either smoke or do not care if others do.

Another frustrating part of this law is its arbitrary enforcement. Do you remember last year when the Reds won the Division Championship? Well, guess what. Some self-righteous TV watchers called the state hotline to complain that our winning team was provided with celebratory champagne and cigars. Now you know, that secondhand smoke must have just been out of control for those watching it on TV. The reason I bring this up is that the Health Department is in charge of enforcing the law. However, it can only do so if someone complains. In other words, no complaint, no enforcement. It appears that the bar and/or restaurant owner who is losing money, is by default, the enforcer. To make matters worse, the fines for breaching the law appear to be arbitrary after the first offense.

There is no doubt many legal issues can be addressed, but according to David E. Grusenmeyer, president of the Miami Valley Licensed Beverage Association, and vice president of the state’s counterpart, the issue comes down to: does the state have the right to dictate how an owner runs his business, even if it was seemingly voted into law by a majority of the public. To quote Mr. Grusenmeyer, “The state doesn’t pay my rent, my labor or liquor costs, my liability insurance, nor my taxes. I can have cigarette vending machines, but my patrons have to go outside to smoke. I have to pay for the privilege of having a license to serve liquor, but I cannot let anyone smoke inside the premises. That’s just wrong!  Cigarettes are not illegal, but smoking them inside my bar is.”
Ironically, at its inception, restaurants were adamantly against the law. Currently, they are now in favor because many are experiencing a surge in patrons who long for a family-friendly, smoke-free environment. On the other hand, bars, who offer no food, have experienced a 40 percent reduction in sales. Many, like you, have just gone out of business. Of course, the restaurants, especially large chains, who make higher profits on their liquor sales as opposed to food sales reap the benefits. And, since the law is complaint-driven, you can only imagine the bar down the street having the complaint hotline on “speed dial.”
At the end of the day, I have to agree with Mr. “G,” if you don’t want secondhand smoke, go to another bar or restaurant. In my humble opinion, a business owner should have the right to cater to her chosen market. Maybe I am just old-fashioned, but I miss the days of a smoke-filled, everybody knows your name, dive-bar (no offense, Mr. “G” with regards to the dive part).

¡Buena Suerte!

Legal disclaimer: The content herein is for entertainment and informative
purposes only, and should not be interpreted as a legal consultation. Readers act on this information solely at their own risk and are advised to seek an attorney if legal consultation is needed. The accuracy of this information cannot be guaranteed as laws are subject to change. Neither the author, the Dayton City Paper, nor any of its affiliates shall have any liability stemming from this article.

Isabel Suarez is a Cuban-born American who has been practicing law since 1984. Her diverse multicultural and multilingual practice Suarez & Carlin in Old North Dayton especially serves the regions working poor. Isabel is also a board member of and volunteer for the Ohio Intervention Program. You can reach Isabel by email at isabel@suarezcarlin.com or by calling her office located at 765 Troy St. in Dayton at (937) 258-1800.

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