The smoking conundrum: Bars, restaurants — and patrons — navigate 2008 state law

By Jennifer Learn-Andes - [email protected] | February 26th, 2017 10:08 am - updated: 10:50 am.

Mountain Top resident Jason Hollock joins friends if they pick a Luzerne County bar that allows smoking, but those places are not his first choice.

“It’s not a deal breaker, but I prefer places that are non-smoking,” said Hollock, 37. “Your clothes reek when you get out of there.”

As a two-pack-a-day smoker, Lucy Keating, 50, of Plymouth, will go to a non-smoking bar if the band is “really, really good,” but otherwise she seeks out places where she can freely light up, including Maxie’s Sports Bar in Plymouth, where she tends bar.

With several smoking customers nodding in agreement, Keating said she likes Pennsylvania’s current laws governing tobacco use in bars and restaurants. Those laws allow options for smokers and non-smokers alike.

“I think people should have a choice,” Keating said, noting she never blows her smoke toward others and moves her ashtray if it is parked by someone who doesn’t appear to be a smoker.

The conflicting preferences illustrate the struggle that bars and restaurants encounter under the state’s Clean Indoor Air Act, which took effect nine years ago and prohibits smoking in most public places and workplaces, plus a portion of casino floors.

Private social halls, such as American Legions, were not required to ban smoking.

To qualify for exceptions, drinking establishments must have an active state liquor license and provide documentation that on-premises food sales are 20 percent or less of total gross sales, not counting takeout sales, according to the state Department of Health, the processor of exceptions under this law.

Still, some state legislators continue to push for changes to the law.

State Sen. Stewart Greenleaf, R-Montgomery, has repeatedly introduced legislation aimed at removing most exceptions and expanding the smoking ban to casinos and private social clubs, but this legislation hasn’t advanced due to pushback from businesses that want to continue allowing smoking, according to Aaron Zappia, who handles constituency relations for Greenleaf’s office.

Greenleaf had initiated the bill that led to the 2008 law, but exceptions and other concessions were necessary to get it passed, Zappia said.

Greenleaf’s latest proposed legislation closing smoking loopholes was introduced earlier this year, Zappia said.

“He’s not going to stop pursuing it,” Zappia said. “The current law does prevent smoking in the vast majority of indoor working spaces, but the final result was something the senator and advocates are not completely satisfied with.”

A total of 157 restaurants and bars in Luzerne County have exceptions, a number that is significantly higher than the figure in all of the state’s 11 other third-class counties, which have a population range of 210,000 to 499,999.

Most of these exceptions — 131 — are for bars that allow smoking throughout the establishment. The remaining 26 permit smoking in the bar but not restaurant areas, which must be separate and enclosed.

A total ‘revamp’

Mike Theodore said sales have declined at his Wilkes-Barre eatery, the Arena Bar & Grill, since he was forced to stop allowing smoking nine years ago.

Theodore, who opened the business in 2002, can’t obtain an exception because food sales are about 50 percent of his business. He said he could accept his shrinking customer base if all other restaurants and bars were in the same position, but the law permits some establishments to continue meeting the demand for customers who want to puff inside, he said.

“It’s not a level playing field,” Theodore said.

He tried to counteract the loss by adding booths in a section once congregated by customers who often wanted to smoke as they played pool and video games.

“We had to totally revamp our business plan after this law,” he said.

Theodore pointed to New York, which passed a law in 2003 prohibiting smoking in almost all workplaces, including restaurants and bars.

According to a New York health department publication, one shift in a smoky bar is the equivalent of smoking 16 cigarettes a day, and two hours is the same as smoking four cigarettes. The bottom line is that an estimated 3,000 American non-smokers die each year from lung cancer caused by secondhand smoke, according to the U.S. Environmental Protection Agency.

As for the business impact of its smoking ban, Pennsylvania’s health department addresses the subject in a question-and-answer section of its website at www.health.pa.gov, pointing out that an analysis of the health and economic impact of New York’s Clean Indoor Air Act found the law did not have an adverse financial impact on bars and restaurants.

While his non-puffing customers are happy with the change to a no-smoking zone, Theodore said Pennsylvania’s law “rewards” small businesses that don’t serve food, including some “trouble” establishments. Larger businesses are penalized, he said.

“I think the state should completely ban smoking in all bars and restaurants and eliminate other exceptions, too. Many other states do that,” Theodore said.

As of June, 28 states had enacted comprehensive smoke-free laws that prohibited smoking in all indoor areas of private-sector worksites, restaurants and bars, according to the U.S. Centers for Disease Control and Prevention.

‘A lot of corner taverns’

Hazleton Mayor Jeff Cusat, whose family has operated Cusat’s Cafe on Alter Street in the city for 82 years, said exceptions are necessary for some businesses to survive.

“We are an older community that has a lot of corner taverns. If there was a total ban on smoking, a lot of them would be put out of business,” he said.

Luzerne County has the most restaurants and bars with liquor licenses — 512 — among the third-class counties, according to the state Liquor Control Board.

Only two other counties in Pennsylvania have more establishments with liquor licenses — Allegheny County, which includes Pittsburgh, with 1,463, and Philadelphia with 1,442.

What stands out in Luzerne County is the high number of businesses with exceptions: nearly 31 percent. Among third-class counties, only York County has a higher percentage, 37, with 58 exceptions among its 156 establishments with liquor licenses.

Like Luzerne, Erie County has 31 percent with exceptions.

The nine remaining third-class counties have exception percentages ranging from 7.6 in Chester to 26 in Westmoreland.

Many establishments with exceptions are in smaller buildings on tight lots that prevent them from expanding food sales to offset a loss of smoking customers, Cusat said.

Cusat, who isn’t on his family’s liquor license due to his public office, said Cusat’s Cafe is fortunate to have a layout separating the restaurant from the bar to allow an exception. The family also added an outdoor deck and bar because this setup has become more popular, he said.

The state does not prohibit smoking on outdoor decks or patios if they are unenclosed with no ceiling.

‘Detrimental to business’

Maxie’s owner, Max Blaskiewicz, said he has firsthand experience with what business is like without an exception because he didn’t have one for his West Main Street business when the law took effect, mistakenly believing smoking would be banned at all establishments, as it is in some other states. He obtained an exception a short time later.

“We tried not allowing smoking in the beginning, but we lost a ton of customers,” he said. “If we did away with our exception, it would be detrimental to business.”

He said he never smoked and would have no problem with a ban if it were across the board. The way the law is structured now, he believes many of his customers would flock to social clubs, such as American Legions and VFWs, to smoke and drink.

Jim Casterline said business “plummeted” at the former Stan’s Cafe on East Northampton Street in Wilkes-Barre when his aunt and uncle failed to seek an exception for their 42-year operation after the law took effect. Casterline and his wife agreed to buy the cafe in 2010 after an exception was obtained, and they later renamed the establishment Steagles.

Casterline smokes and estimated that 75 percent of his customers smoke. He said the government should not make changes that will hurt small, responsible establishments.

“I operate a bar where my wife and daughter could come in and feel safe,” Casterline said.

Greg Hunsinger has obtained an annual exception for his tavern, Huns’ Café 99 on George Avenue in Wilkes-Barre, since the law was implemented because he suspected the potential loss of smokers would hurt business.

Business appeared to pick up after the law went into effect, he said. Still, no smoking law can please everyone, Hunsinger pointed out.

“We still get people who don’t come in because we allow smoking,” he said.

Some non-smokers are indifferent, and Hunsinger has invested in electronic air cleaners and fans “to make it as livable as possible.” He also obtained an exception when he opened Huns’ West Side Cafe on Union Street in Luzerne in 2010.

“I think people want to choose if they want to smoke or not, rather than not having that option,” he said.

Smoking ‘headache’

Lindo Sabatini likely could have obtained an exception for Sabatini’s Bar & Bottleshop, which he opened in Exeter in June 2015, because the only food sold at that establishment is from Sabatini’s Pizza next door.

“The thought didn’t even cross my mind. I personally love it that we’re non-smoking. I don’t know if I could spend so much time in our bar if we allowed smoking. If I go into a bar that allows smoking, the next day I have a headache,” Sabatini said.

As a compromise, the facility has a patio where smoking is permitted. He said he believes many smoking customers are accustomed to stepping outside to smoke.

Sabatini also is sympathetic to Theodore’s concerns, questioning if some businesses with exceptions ring up on-site food as takeout illegally in order to continue meeting the 20 percent food-sale threshold.

Jennifer Murphy, owner of Murphy’s Pub on Slocum Street in Swoyersville, said she wonders how some businesses qualify for exceptions because they serve “quite a bit of food.”

The Pennsylvania Department of Health fields complaints about alleged violations of the Clean Indoor Air Act, but it is unclear how aggressively they investigate any such cases.

Regardless, Murphy said she believes the law is “a good thing overall.”

She and her husband, Eric, said they were concerned business would suffer in 2008 because they did not qualify for an exception. But some smoking customers have adjusted to going outside, she said, and the loss of those who haven’t has been offset by an increase in families that bring their children in to eat.

“In today’s day and age, I don’t think people mind going outside,” she said. “They’re used to it in every other facet of life.”

Argument for change

Discouraging smoking should be a goal because Luzerne County is “always in the bottom” among Pennsylvania counties in health assessments, said Carol Hussa, Healthier Communities Coordinator for the Wilkes-Barre Family YMCA.

In its latest annual county health rankings, released last year, the Robert Wood Johnson Foundation placed Luzerne County 64th among the state’s 67 counties, followed only by Sullivan, Fayette and Philadelphia. Statistics on smoking, drinking, pollution, obesity and other factors were reviewed for the study.

Chester County, which was deemed the healthiest, has an adult smoking rate of 14 percent. That county also has the lowest percentage of bar and restaurant smoking exceptions among the third-class counties.

Eighteen percent of Luzerne County adults smoke, which is the 2015 Pennsylvania average, statistics show.

Nationwide, Pennsylvania is among 18 states with an adult smoking percentage between 16.4 and 20.1, according to the Centers for Disease Control. The percentages are higher in 13 states and lower in 19, CDC data shows.

Hussa said she would support a ban on smoking in public places that serve alcohol, saying the law was intended to protect workers in addition to the public. Businesses might initially lose customers if exceptions end, but they should bounce back if no competitors can permit smoking either, she said.

Society adjusted when smoking was banned on airplanes, in movie theaters and in hospitals, Hussa said.

“It has become the norm that you just don’t smoke in certain places. There’s no constitutional right to impact on another’s health.”

For other local news stories, click here.

http://www.timesleader.com/wp-content/uploads/2017/02/smoking-2-26-17thisone-1.pdf
http://www.timesleader.com/wp-content/uploads/2017/02/web1_smoking-2-26-17Final-2.jpg
A woman holds a cigarette at Huns’ West Side Café in Luzerne. Some owners of bars and restaurants say they would lose too many customers if they banned smoking. (Aimee Dilger | Times Leader)
http://www.timesleader.com/wp-content/uploads/2017/02/web1_TTL021017smoking2-2.jpgA woman holds a cigarette at Huns’ West Side Café in Luzerne. Some owners of bars and restaurants say they would lose too many customers if they banned smoking. (Aimee Dilger | Times Leader)
Customer Dave Williams smokes a cigarette at Huns’ West Side Cafe in Luzerne, one of 157 bars and restaurants in Luzerne County that have exceptions allowing customers to light up. The total is the highest among the state’s 12 third-class counties. (Aimee Dilger | Times Leader)
http://www.timesleader.com/wp-content/uploads/2017/02/web1_TTL021017smoking1-2.jpgCustomer Dave Williams smokes a cigarette at Huns’ West Side Cafe in Luzerne, one of 157 bars and restaurants in Luzerne County that have exceptions allowing customers to light up. The total is the highest among the state’s 12 third-class counties. (Aimee Dilger | Times Leader)

By Jennifer Learn-Andes

[email protected]

Reach Jennifer Learn-Andes at 570-991-6388 or on Twitter @TLJenLearnAndes.


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