2012-05-03 / Local & State

Some Pa. Bars, Eateries Still Let Patrons Light Up

By Patricia Sabatini

PITTSBURGH (AP) – The Rosecliff Tavern, a neighborhood bar and restaurant off the Parkway East in Monroeville, boasts several beers on tap, a full menu and seven giant flatscreen TVs.

On a recent visit, the Ushaped bar and adjacent booths were filled with lunchtime customers, some enjoying a smoke along with their meals.

Trouble is, no one should be lighting up at The Rosecliff.

Pennsylvania's Clean Indoor Air Act, which took effect in September 2008 after more than a decade of legislative wrangling, was supposed to protect employees and customers from the dangers of secondhand smoke by prohibiting smoking in most workplaces.

From the beginning, certain businesses were automatically exempted from the law, such as private clubs, certain truck stops and up to half of the gaming floor at casinos. The law also lets some businesses apply for an exemption to allow smoking, most notably bars, as long as food accounts for 20 percent or less of overall sales and no one under 18 is permitted to enter.

Hundreds of businesses across the state have been granted exemptions, with some 2,800 drinking establishments, cigar bars and tobacco shops holding an exemption at the end of 2011, according to the Pennsylvania Department of Health, which is charged with approving the waivers. The American Lung Association estimates 60 percent of bars in Allegheny County are exempt from the law.

But the Rosecliff isn't one of them.

That hasn't stopped the bar from describing itself as a “smoking establishment” on its website. “We even have a cigarette machine in case you run out,” the site said as of Friday.

Rosecliff owner Josh Parente said two weeks ago that he was “pretty sure” he had the waiver to allow smoking. “I would have to check that,” he said.

The health department confirmed The Rosecliff does not have an exemption.

State Police Capt. Thomas Butler, director of operations with the Pennsylvania Bureau of Liquor Control Enforcement, said he believes the vast majority of bars and restaurants are complying with the nosmoking law. Those that ignore the rules risk enforcement action, including fines and the possible suspension of their liquor license, he said.

It wasn't hard to find examples of other drinking establishments in Allegheny County welcoming smokers even though they don't have an exemption.

In other instances, local bars and restaurants have continued to allow smoking after appealing a decision by the Department of Health denying them an exemption. The appeals process typically halts any potential enforcement actions, sometimes for years if the case makes it to the final step in Commonwealth Court.

Agencies enforcing the smoking ban say they largely rely on the public to identify potential violations.

“Once we educate the public about the law, they literally help enforce it,” said Judy Ochs, director of the division of tobacco prevention and control at the health department, which oversees the Clean Indoor Air Act, keeps track of complaints and handles enforcement at workplaces not covered by a state licensing agency, such as liquor control.

“Unless we get a specific complaint, we won't know about it,” said Capt. Butler, at the liquor control bureau. “When we receive a complaint, we initiate an investigation.”

In some cases, he said, the bureau may catch smoking infractions during general inspections it performs periodically to check compliance with a host of liquor regulations, looking for such things as dirty taps or fruit flies in liquor bottles. In 2011, the bureau conducted about 2,100 such inspections among some 18,000 places with liquor licenses statewide, chiefly drinking establishments.

The health department says most Pennsylvania businesses are complying with the no-smoking law, pointing to a steady decline in complaints statewide since they peaked in 2009, the first full year after the law took effect. Across Pennsylvania, there were 422 “valid” complaints last year, down from 2,425 in 2009.

The health department throws out complaints made against businesses that have an exemption or otherwise aren't covered by the law. There were 44 of those socalled “invalid” complaints in 2011.

In Allegheny County last year, there were 66 valid complaints about unlawful smoking, including a complaint involving the City County Building and the mayor's office. That was down from 459 complaints in 2009.

In the first three months this year, the health department received 89 complaints for Allegheny County locations, 72 of them against one business. The health department said it couldn't discuss the case because an investigation was ongoing.

First-time violators of the no-smoking law that are under the health department's jurisdiction receive a warning/ education letter, which typically is enough to stop the problem, the department says.

Repeat offenders could draw fines ranging from $250 to $500. Since the law took effect in 2008, the health department has cited and fined nine establishments statewide.

At the liquor control bureau, first-time offenders received warning letters during the first six months the law was in effect, Capt. Butler said. Then in 2009, the bureau cited 346 establishments for smoking violations.

That number dropped to 196 in 2010 and 190 last year.

Those businesses cited can plead guilty and pay a fine or request a hearing before an administrative law judge. Fines range from $50 to $1,000.

Besides issuing fines, administrative law judges have the power to suspend liquor licenses, Capt. Butler said. He said he didn't know if a license had ever been suspended because of a smoking violation.

Anti-smoking groups and others, including the Pennsylvania Restaurant Association, say the biggest problem with the Clean Indoor Air Act is that it allows too many exceptions, exposing thousands of workers to harmful secondhand smoke.

They support state Senate Bill 35, now in committee, that would eliminate all exemptions.

“You shouldn't be protecting some workers but not others,” said Patrick Conway, CEO of the restaurant association in Harrisburg.

Conway said the association's board “felt a comprehensive ban was the way to go” back in 2006, when a U.S. Surgeon General's report conclusively documented the health hazards of second hand smoke.

Roughly two dozen states currently have comprehensive workplace smoking bans that include bars and restaurants. Another dozen have regulations that are less complete, usually because they don't include bars. Just 10 states have not enacted any general statewide ban on smoking.

At the Hop House, a bar and grill with locations in Green Tree and Ross, the owner also believes exemptions should be eliminated, even though both of his facilities have waivers and are smoker-friendly.

“The way the law is written now is bad,” Ron Longo said. “It creates an unlevel playing field.”

A nonsmoker, Longo said he tried operating smokefree after the law took effect, but lost too much of his lucrative bar business to neighboring competitors that welcomed smokers.

But allowing smoking had its downside, too, he said.

“We lost all our family business because we couldn't have anyone under 18 (inside).”

Longo would like to apply for another type of waiver available to drinking establishments, called a Type II exemption, that could help him win back families. But his business isn't eligible.

Under a Type II exemption, smoking is allowed only in the bar area as long as the area is enclosed, has a separate entrance and ventilating system; no one under 18 is allowed; and food sales in the enclosed area don't exceed 20 percent of sales.

But the way the Clean Indoor Air Act was written, only facilities already set up that way when the new regulations took effect in 2008 are eligible to apply.

Greg Hartley, assistant director of Smokefree Pennsylvania, says he suspects some places that sell too much food to qualify for an exemption have been abusing the system by improperly ringing up sales as takeout, since the 20 percent limit applies only to food eaten on site.

“It appears to be one of the potential loopholes that could be exploited,” he said.

Hartley said he has had numerous complaints from the public questioning how some bars with extensive menus receive exemptions. “They see large volumes of food being served and they are shocked (the business) would be included in the exception list,” he said.

Health department spokeswoman Holli Senior said the department can't say whether anyone is improperly reporting food sales, but she noted that businesses must certify that their sales figures are accurate with the Pennsylvania Department of Revenue.

“If individuals are concerned about a particular business not reporting sales accurately, they should file a complaint” with the health department, Senior said.

The restaurant association's Conway says no one has raised any concerns with the association about potential cheating on food sales. But he called the issue “just another reason to eliminate the exceptions” in the law.

Without exemptions, “There's less concern about how people are accounting for things like that,” he said.

Exemptions were added to the law because there wasn't enough support in the Legislature without them, said state Sen. Stewart Greenleaf, R-Montgomery County, the chief proponent of the measure.

Greenleaf is now heading the effort to eliminate all exemptions, including those covering casinos and private clubs. His bill also would prohibit smoking on outdoor patios at restaurants.

“If you want to smoke, that is your decision. We aren't interfering with that,” Greenleaf said. “But once you are in a public place, it's putting carcinogens into the air and it's something the government has the right to intervene on.”

Even supporters of Greenleaf's bill don't give it much chance of passing.

“I don't think there is a real appetite in the Legislature to take it up,” said Conway of the restaurant association. “Those battles over the exceptions were excruciating.”

The Pennsylvania Tavern Association, which along with the tobacco industry successfully lobbied for the exemptions for bars, also is skeptical.

“They just got done doing a smoking ban in 2008 that people are still getting used to,” said Amy Christie, executive director of the Harrisburg based group.

She said it was too soon for the association's board to form an official response to the bill, but said she didn't think it would garner much support from tavern members.

“I don't think it's in the best interest of any small, independent business owner, given the economy, to have to conform to another mandate,” she said.

Hartley of Smokefree Pennsylvania, a strong supporter of Greenleaf's bill, also believes the effort is doomed, largely because it would force the state's 11 casinos to go entirely smoke-free.

“I don't hold out much hope for it,” he said. “The casino lobby is very, very powerful.”

He called the current nonsmoking sections in casinos “a joke.”

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