Shortly after taking her seat, the newest member of council, Theresa Whibley, proposed that Norfolk become the first city in the state to implement a city-wide ban on smoking in restaurants. Today we learn that the idea has legs and council is moving towards such a ban, perhaps as early as January.
Two things come to mind here. First, City Attorney Bernard A. Pishko acknowledges that the “General Assembly has said you can’t ban smoking in bars.” But, he goes on to say, “the General Assembly has not acted on smoking in restaurants.”
Perhaps one of the attorneys in the blogosphere can weigh in on this but it seems to me that, given the food selling requirements of the ABC laws, bars and restaurants are the same thing. So how can you ban smoking in restaurants but not bars? Does this mean that smokers will now all flock to bars in order to enjoy a cigarette with their meals? I see a boon for the bars if this is possible.
Secondly, where are all the free market folks now? Shouldn’t the market dictate whether smoking should be allowed in restaurants? As a smoker, I choose whether or not to go to restaurants and other places (like the outdoor Harbor Park) that ban smoking. If enough of a restaurant’s customers want a smoke-free environment, no doubt they would offer that. And some do. Why does the government have to jump into the fray? Or is it that old we-know-what’s-good-for-you-better-than-you-do mentality here? I’d like to hear a good conservative argument in favor of this ban, because I can’t come up with one.
Why do I suspect that next they will try to ban me from smoking in my own home?
Finally, how will such a ban be enforced? Are we going to have “smoking police” now, using up precious resources that could be used elsewhere? Or will we rely on customers to turn in offending bar restaurant owners?
But if they do manage to ban smoking, let me give them something else that they need to ban: perfumes and colognes. There are a lot of folks with allergies that are aggravated by the heavy doses of perfumes and colognes that people seem to pour on before leaving the house. Seems to me that makes about as much sense for a ban as this smoking one does.
VIVIAN J. PAIGE | All Politics is Local 
I’ll let someone else offer up the specifics (because I don’t know them), but I’m pretty sure that most jurisdictions have very clear delineations defining bars and restaurants separately. If Ireland, San Francisco, New York, and DC (as of Jan 1) can do it, I’m sure Norfolk can find a way . . .
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Smoking bans, I think, are overreaching by the gov’t. But it’s about dead last on my list of what’s wrong with gov’t that bothers me. Put another way – I understand the objection, but between my being thrilled at being smoke free and finding other gov’t overreaches far more intrusive, I won’t be taking up the cause any time soon.
Vivian — I, too, cannot find any good conservative argument for the proposed smoking ban.
MB — While I can understand your “finding other gov’t overreaches far more intrusive,” I would think that you would want to fight government overreach no matter what the topic. If it’s just that you’ll be “thrilled at being smoke free,” then you are compromising your principles.
Richmond faces a very unique problem in regards to the smoking ban. In Richmond, you cannot simply have a “drinking establishment”; you MUST provide food if you want a liquor license. So, ALL bars would have to go non-smoking, which imo is unconstitutional.
And what of NJ? In NJ, the smoking ban is for every place BUT casinos, because of the fear of revenue loss. That hardly seems fair, does it?
Phriendly – what you refer to is the state ABC laws that I mentioned above. It’s not just a Richmond thing. That’s why I’m trying to figure out how Norfolk is going to use the “restaurants” argument versus the “bar” argument.
And Jack – finally! Something we can agree on 🙂
Trivia:
There is only one place in Virginia where beer can be sold for on-premise consumption and there is no requirement for food sales — Frog Level Service Station in Tazewell County.
And I’m not a lawyer, but I agree with your conclusion Vivian – there are technically no “bars” in the state of Virginia. I guess one of us will have to research the exact language that the GA used when the “General Assembly … said you can’t ban smoking in bars.”
I think the distinction is made on revenues. I’m making the numbers up, but if you have more than 50% alcohol sales, you are primarily a “bar,” while if you have more than 50% food sales, you are primarily a “restaurant.” I’m pretty sure that’s how the phased smoking ban in D.C. worked, i.e., “restaurants” had to ban smoking by July while “bars” had to ban smoking by January.
As for whether it should be banned, I’m with you Vivian. My friend owns a restaurant in D.C., and he said while there are downsides to smoking (he doesn’t smoke and it makes cleaning a real hassle), the reason he allows it is a combination of (1) smokers spend more money (he said he had some study somewhere and found it to be true anecdotally) and (2) it doesn’t really deter non-smokers from not coming to the establishment. He really does worry about losing business because D.C. is in a unique position where it is located next to two jurisdictions, P.G. County and Virginia, that provide a viable alternative for smokers.
My girlfriend then asked whether I agreed with the trans-fat ban, and whether it wasn’t the same thing. I said no, because I can’t tell what kind of fat is used to cook (much like I can’t tell if a restaurant uses slightly spoiled meat – I depend on health regulations for those kinds of things), but that I can easily tell if a restaurant allows smoking, or has a non-smoking area, and can adjust my patronage accordingly.
Having said that, I don’t smoke much and so while I am philsophically against the ban, I agree with the first poster that I will concentrate my efforts on other fights.
The only kind of licenses available in Virginia that this type of legislation would apply to would be a restaurant license or a club license (clubs are non-profits). The other types of licenses are things like caterers and bed and breakfast and other types of things that couldn’t possibly be construed to be a “bar”.
So, the only legal license category that exists in Virginia that this ban could apply to in Norfolk would be the restaurant license. There isn’t a distinction between restaurant or bar. For a restaurant license, the licensee must have 45% of sales as food and non-alcoholic beverages. There is also an additional requirement of $4000 in food sales and of that, no less than $2000 is in the form of food with substantial entrees – meaning you can’t sell $4000 worth of appetizers and have that count as “food”. And I can tell you from personal experience that ABC audits restaurants with a fine-toothed comb.
The term “bar” is not present in the Virginia Alcohol Beverage Control Act. It is not even listed in the definitions, only restaurant is, and the description of a restaurant clearly includes the area of an establishment that we call a “bar”.
So, how does all of this work in regard to state law and the Dillon rule? Can Norfolk in essence create a law using a term that doesn’t technically exist in Virginia?
Sounds like it might be a prime opportunity to actually update VA’s laws. I know, shocking thought – that the legislature might do something besides pile on add’l crim penalties (or screw with fundamental rights).
Olivia – Norfolk is using the term “restaurants.” The “bar” term came from City Attorney Pishko. I believe what he is referring to is SB 648, which failed.