The Sun
Sunnyvale's Newspaper

Photograph by George Sakkestad

Beefy's Cabin patrons Merry Whitney and Howard Reese smoke guilt-free in the owner-operated bar.

Smoke Alarm

Patrons continue to smoke in local bars

By Steve Enders

Smokers in California bars and restaurants were assumed to have collectively snuffed out their cigarettes and cigars as of midnight, Jan. 1.

But walk into many local bars, and chances are you'll see someone smoking. In the average bar on an average night, there are not as many smokers as before the new year, but they're there, and they're not outside.

Beyond the obvious shiny new signs that welcome customers to a smoke-free establishment floats a thin cloud of fresh smoke. Most ashtrays are gone, but others are stashed out of sight, inconspicuously hidden behind menus, beer taps or glasses. Many bars still reek of smoke inside; one wonders if it's just left over from years past.

So what's happening? Smoking in bars is supposed to be illegal now, right?

Well, yes, but some are finding ways to get around the new law. Others are just ignoring it.

In some cases, according to the smokefree workplace law, exceptions can be made. Along with a copy of the law, AB 3037, comes a list of four exemptions, two or three of which are applicable to bars and restaurants.

There is an exemption for employee breakrooms. Patrons can't smoke there, but employees can if the breakroom is properly ventilated and employees are not required to enter the room.

Also, there is an exemption for shops whose primary purpose is to sell tobacco products.

A third exemption involves owner-operated businesses. It states if the "business is operated solely by the owners, without the compensated services of any employees, [it] is technically not a 'workplace' under state law."

This exemption has the owners of one Sunnyvale bar telling patrons, "Smoke 'em if you got 'em."

Tina Brammall, one owner of Beefy's Cabin on Washington Avenue, says that she, her two brothers and her husband, Peter, run the bar, do all the work and don't mind if anyone smokes.

"Before learning of the exemption," Brammall says, "I asked for the 'no-smoking' signs, and we were 100 percent ready to comply with the new law."

She says she doesn't pay anyone else to work in the bar, she doesn't compensate volunteers and she doesn't employ contract employees at the bar on a regular basis--the three conditions for squeezing through the owner-operated loophole.

"I'll be honest. We do have music on some Friday and Saturday nights," she says. "But most of the time we don't have the music, and if we had to make a decision, we'd stop the live entertainment. What's the point of having [entertainment] if you can't pay the bills?"

Many bar owners, patrons and government officials admit that the law is poorly written.

Santa Clara County tobacco-control management analyst Richard Nichols says that the law has faults with its loopholes and exemptions.

"It's too bad it's not a blanket law," he says.

Nichols is part of a state-authorized county office that distributes information about smoking laws. He says his office can't enforce the laws, though.

The dirty work in Sunnyvale is left up to three members of the city's Neighborhood Preservation Division.

According to senior secretary Connie Porras, the division hasn't received any complaints yet. But, she said, "We expect to get them."

Porras says that any reports called in go through her, and then an investigator will take action.

State law says that bar owners could be fined $100 for a first violation, $200 for a second in the same year, and $500 for a third and each subsequent violation. Also, after three violations in one year, cases are referred to the California Occupational Safety and Health Administration (Cal-OSHA), which can levy penalties as high as $7,000 per violation.

"The unincorporated areas of Santa Clara County have had a smoking ban for about four years," Nichols said. "It was rough at first, but then it started working."

The same, he says, went for cities like Boulder, Colo., and San Luis Obispo, which have had successful smoking regulations for years.

He says that bars statewide will probably take about a year to fully comply with the new law.

Bar employees like Scruffy Murphy's manager, Flor O'Sullivan, say that they are doing their part to comply with the law.

"By law we have to ask [smokers] to stop, but we can't make them," O'Sullivan said.

He said that he expects to lose some business now that the law is in effect, but he can't really tell if much has been lost already because business is usually slow after the holidays.

"It's going to be a slow process, but people are getting it."

People who are getting it now resentfully go outside for a smoke.

A local bar regular who goes by the name Curly Bob says he would frequent another establishment if he were allowed to smoke inside. "I do it already," Bob said.

Bob frequents a bar on Murphy Avenue that was recently warned by a Sunnyvale Public Safety officer to cut out the smoking.

The bartender, who didn't want the bar's name or her name used, said the bar now has many signs hanging that tell customers not to smoke, and smokers go outside now. She's even got a copy of the ordinance to show patrons if she has to.

She said the bar's staff put the ashtrays back out on the tables only after checking out the other bars on the street and seeing that they were still allowing customers to smoke.

"They were being a little more discreet about it," she said. "But they were just sending people upstairs or in the back, so we said forget it."

So the ashtrays went out, and they got caught and warned by the police, who received a call from someone who entered the bar and immediately asked about the smoking law.

The city's Porras didn't sound surprised to learn of the incident, but said it's the Neighborhood Preservation Division's job to enforce the law.

"But it doesn't preclude public safety officers from doing it," she added.

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This article appeared in the Sunnyvale Sun, January 14, 1998.
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