Austin @ Large: The Smoke Unclears

Trust me: I really, really thought I would never again have to write about the smoking ordinance. But now that, finally, more than a year after the City Council first began wrangling with this issue, we actually have a new ordinance in effect that replaces, and in theory strengthens, the 1994 rules, guess what? It doesn't work.

I can say that without reservation, although it's hard to say how we would know if it did work, since as far as I can tell, nobody really knows what the current smoking ordinance is supposed to accomplish, other than make some sort of symbolic statement. The anti-smoking forces still consider it a major defeat, since it still allows people to smoke in public. And the bar and club owners – the most vocal opponents of the Tobacco-Free Coalition in last year's battle royal – aren't much happier, since the city now requires them to jump through hoops, spend money, and get a permit to operate in a manner that, 18 months ago, was not the slightest bit controversial. That is, if they can get a permit.

It will be nice to see if the city Health and Human Services Department can, somewhere down the line, come up with some data – y'know, the kind of "performance measures" that City Hall produces so assiduously and with such pride – to quantify the benefits of the new smoking ordinance. You may remember that I was (and still am) opposed to the smoking ban in the first place, and when this version was first ground out of the sausage mill last fall, I was as happy as anyone to declare victory and hope this whole stupid nonissue would go away. (I should add, since this is relevant to the Tobacco-Frees, that I have actually quit smoking, myself, in the interim. It hasn't changed my attitude about the ordinance, though.)

But at least a total smoking ban would have had a discernible positive impact on public health, at least in the view of the Tobacco-Frees, that could be balanced against the obvious negative impact on what Austin pretends is its signature industry, live entertainment. As it now stands, any positive impact of Austin's smoking restrictions will be nebulous and hard to assess – but tales of the negative impact on the Austin entertainment scene are already rolling in.

---

Smoke Gets in Your Ears

First off, we have the disappearance of a level playing field among the clubs and venues, because the current smoking ordinance defines a "bar" as an establishment that earns 70% or more of its revenue from alcohol sales. If you're a "bar," you just need to apply for a permit and restrict access to persons over 18; if you're not a "bar," you have to have a separately ventilated designated smoking area, or ban smoking entirely. This 70% number is an arbitrary figure, pulled out of nowhere on the dais (by Council Member Raul Alvarez) last October. Both state law and every other relevant city ordinance, including the zoning code and the 1994 smoking ordinance, set the alcohol-sales threshold at 51%, which apparently lets too many restaurants off the hook.

So there are now establishments in Austin that don't really serve much food, and that may even require CS-1 zoning, but that can't allow their patrons to smoke, because they happen to sell more nonalcoholic beverages than otherwise comparable bars next door. One such case, we are told, is Halcyon, which sells too much coffee to meet the 70% threshold, and now has to be nonsmoking, even though it is also a tobacco retailer, and even though pretty much every nearby bar in the Warehouse District – most of which are a lot less Austin-weird than Halcyon – can still allow smoking with impunity. This has not been good for their business.

In theory, many restaurants and clubs that aren't "bars" could continue to allow smoking, since they've already got separate smoking rooms pursuant to the similar requirement in the 1994 ordinance. However, we've also heard from several restaurateurs that their existing setups have now been pronounced insufficient by the health department; unless they spend a lot of money to upgrade their ventilation systems, they have to go smoke-free. Which is a problem, they say, if they want to try to present live music or have a happy-hour trade; they say that business will now simply go down the street to a "bar," and the supposed (though always rather spurious) goal of the Tobacco-Frees to make live music more accessible to nonsmokers has been turned on its head by City Hall magic. (As expected by many, the "smoke-free Mondays" experiment – a further compromise offered by the clubs in the last round of squabbling – has not lived up to its supposed promise.)

---

All or None

In the long run, none of this may much matter, because as of June 1, the vast majority of establishments in Austin – whether "bars" or not – had not applied for, let alone received, a smoking permit. Ban backers claim, or at least hope, that this means they're all going to go smoke-free, and indeed some may (or feel they must, because they haven't been keeping up with the peregrinations of the ordinance and think a total ban is in effect). But it also may reflect the fact that enforcement of the ordinance is going to be complaint-driven, the city has no money to hire smoking cops, and the police department (or at least the police union) has already made clear its lack of interest in filling that role. I imagine that a year from now, one will still be able to smoke in hundreds of public places in Austin where it is supposedly illegal.

That is, if a year from now we still have a smoking ordinance. We hear tell that Halcyon is already talking with City Hall folk about the possibility of getting a variance – which would require amending the ordinance yet again. I wish them luck, but at the same time, if a variance process is added to what is already a pretty rank slab of sausage, the senselessness of this whole effort will have gone off the charts. It's not too late for the City Council to do what it should have done in the first place: Junk this whole business, reinstate the 1994 smoking rules, and let the Tobacco-Frees start gathering signatures to take a total smoking ban to the ballot box.