As Virginia’s anti-smoking law for restaurants and bars approaches its one-year anniversary, not one fine has been issued locally. And public complaints of alleged violations by businesses have slowed to a trickle.
About 2.3 percent of the state’s more than 27,000 restaurants were found to be out of compliance with the law in the past year, said Gary Hagy, director of the state Health Department’s Division of Food and Environmental Services. Many of them may have since corrected the problems, he said.
“I think the numbers show that the restaurant and hospitality industry have embraced the new law, and the general public has, also,” Hagy said last week.
That doesn’t mean the restaurants and bars have gone smoke-free.
On a recent Friday afternoon, Poppa’s Pub Sportz Bar & Grill in Virginia Beach was thrumming. The bar and most of the tables were packed – with smokers.
Only one area was empty – a small room toward the front with four tables. That’s the non smoking room at Poppa’s.
It’s legal. The law, which will turn one year old Wednesday, doesn’t require restaurants and bars to ban smoking indoors, as did a North Carolina law that took effect in January.
They may establish separate smoking and non smoking areas if they are “structurally separated” and “separately vented” and if the nonsmoking room has one entrance from outside. The law does not mandate a minimum size for the rooms, Hagy said.
Poppa’s owner, Randy Estenson, lobbied against the law as a violation of free enterprise. After it was approved, Estenson constructed a small non smoking room because most of his patrons smoke. It serves mostly as a “large phone booth” when a customer talks on a cell, he said.
Estenson is happy legislators didn’t approve a full-fledged smoking ban. Nonsmoking advocates are less satisfied. They cite weaknesses including the lack of size specifications on smoking areas and a relatively small penalty for noncompliance – a $25 fine.
“We did a happy dance when the law was passed, but it was only on one and a half legs,” said Donna Rennick, the regional representative for the American Cancer Society’s political arm, the Cancer Action Network. “We got something on the books, but it could have been a lot stronger.”
Gov. Bob McDonnell “does not plan to amend the law,” spokeswoman Stacey Johnson wrote in an e-mail.
Health officials do not schedule inspections to determine whether restaurants or bars are in compliance.. They visit businesses if they receive complaints from the public to identify and rectify problems. The last straw is a fine from a local police department.
No South Hampton Roads city has fined a restaurant or bar, according to local officials. The state does not compile the total number of fines in Virginia, Hagy said.
Virginia Beach has recorded 61 complaints this year, though the number has trailed off to a couple per month, said Erin Sutton, the environmental health manager. Some people have identified violations, such as a curtain, instead of a wall, separating the smoking and nonsmoking areas. Health officials, she said, have worked with those businesses to ensure they address the issues.
Norfolk has received 15 complaints since Dec. 1, Chesapeake 19 and Portsmouth none. The number was not available in Suffolk.
The law offers restaurant owners a choice: Go smoke-free or set up separate smoking and nonsmoking rooms. Hagy said 93 percent of the state’s restaurants and bars have no smoking.
Harold’s Restaurant in Virginia Beach went smoke-free in February 2009, before the law was passed. “It actually brought us some customers back who didn’t like smelling the smoke,” owner Harold Owens said.
Kelly’s Tavern in Chesapeake also chose to ban smoking last December, but it lost business, said Dan Babcock, the general manager. In October, Kelly’s opened an enclosed smoking room where the bar had been. Since then, “you can definitely tell there’s been an increase in the beer, wine and liquor sales week to week,” he said.
Since the Oysterette Restaurant and Raw Bar in Suffolk ended smoking indoors, it probably lost more smoking customers than it gained nonsmokers, manager Mary Glisson said. “But right now,” Glisson said, “I think the economy has hurt us worse than anything.”
Norfolk bar owner Ronnie Boone has experienced both sides. The Thirsty Camel, in Ocean View, was too small to divide into separate areas, Boone said, so it went nonsmoking. Business was cut in half, he said. At Greenies, also in Ocean View, Boone said he spent $10,000 to retrofit a smoking room and saw a 10 percent boost in sales.
A pair of adjacent Portsmouth restaurants under the same ownership has devised an unusual arrangement. Longboards, which fronts High Street, still allows smoking; Blue Water Seafood Grill, whose entrance is on Dinwiddie Street, doesn’t.
People who enter Longboards are asked if they want to sit in a non smoking area, said Sarah McPhail, the general manager. If they do, they are ushered into Blue Water through the double doors that separate the restaurants.
Because the businesses operate under one business license and serve the same menu, McPhail said, the setup complies with the law and has been approved by city health inspectors.
Echoing many other restaurant owners, Estenson, who runs Poppa’s, believes the state overstepped its bounds.
“It should be up to the business how they operate,” he said. “A smart businessperson is going to do what the clientele want.” For instance, Estenson prefers country music, but he wasn’t going to mess with the classic rock tradition when he bought Poppa’s, on Diamond Springs Road, in 2003.
“If 80 percent of our customers are nonsmokers and want nonsmoking, we’ll go nonsmoking,” he said. “I’m in business to make a living; I’m not in business to smoke.” As it turns out, he said at least 80 percent of his patrons smoke, and all but two of his 20 employees do. And the two nonsmokers don’t care, Estenson said.
Estenson said he spent about $15,000 to convert a 10-by-14-foot-area into a nonsmoking room, which opened last November. It has four tables with red tablecloths and nine chairs. The room is bright with two windows, a glass door into the main restaurant, a TV and an array of sports paraphernalia.
” We disagree with the law, but if we have to do it, at least we want it to be nice,” he said.
Other restaurant nonsmoking rooms are more bare-bones. At Alibi’s Bar & Grill, on Holland Road in Virginia Beach, a small circular table with two chairs sits in an enclosed 7-by-8-foot vestibule.
The Clubhouse, also on Holland Road, went nonsmoking in December and lost about 45 percent of its business, said Trisha D’Emilio, the day manager. In March, she said, it opened a 10-by-15-foot nonsmoking room, which on a recent afternoon had two tables and five empty chairs. The rest of the bar, including the pool-table area, reopened to smokers.
“People who I hadn’t seen the whole time we were not smoking came back,” D’Emilio said. But most days, she said, no one uses the nonsmoking room.
“No one’s here to take anyone’s rights away,” said Rennick, from the cancer society. “But the nonsmoker has a right to be able to go out for a nice evening and not be accosted by something that is detrimental to their health.”
The cancer society has warned of the dangers of secondhand smoke, saying, for instance, that food-service workers have a 50 percent greater risk of dying of lung cancer than the general public.
Even with its mandates for separate structures and ventilation, Virginia’s law doesn’t eliminate the secondhand dangers, said Keenan Caldwell, the society’s director of government relations in Virginia. “The only way to address that,” he said, “is by not allowing any smoke at all.”
Nor, said Rennick, is the $25 penalty effective. “They can just say, ‘Twenty-five dollars? Big deal.’ It’s not meaty at all.”
Add Vicktoria Mudd, a 52-year-old nonsmoker from Norfolk, to the list of disappointed Virginians. For her, the nonsmoking sections are virtually useless.
“If you have to go through the smoking section to get to the bathroom, what’s the point?” asked Mudd, a training manager at TechnoTraining Inc. in Virginia Beach. “If you’ve ever seen the typical female bathroom line, you stand in it forever.”
To avoid the smoke, “you can’t dance,” Mudd said. “You can’t do karaoke. You can’t play pool. You’re stuck in this room the whole time.”
“They got their foot in the door,” she said of the law, “but they definitely need to tweak it. Right now, it’s not working.”
By Philip Walzer