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Smoked Out

Will "self-enforcement" be enough for Houston's expanded smoking ban to work?

By Chris Gray 

"What are you going to do, charge me with smoking?"
— Catherine Tramell (Sharon Stone), Basic Instinct

How does that old saying go? When cigarette smoking is outlawed, only outlaws will smoke cigarettes? If so, Houston's outlaw ranks may be about to swell in numbers not seen since the glory days of Willie and Waylon and the boys. So smoke up, nicotine-addicted Bayou City barflies, because after midnight this Friday you'll have to step outside to indulge your filthy, filthy habit.

Or you're supposed to, anyway. If you insist on lighting up indoors starting September 1, your fellow patrons will be well within their rights to ask you to step outside, nicely or not. In fact, the city sort of expects them to, because there are only two "environmental investigators" on the entire City of Houston payroll with the specific job of enforcing the ban; until two weeks ago, there was only one. His name is Jeff Conn, and most of the time he doesn't work nights. Otherwise the city expects smokers to comply with the ordinance City Council approved last October through a policy it refers to as "self-enforcement."

A kind of tobacco honor system? This is a joke, right? Not to Kathy Barton, spokeswoman for the city's Department of Health and Human Services. "I don't know that that's a great term," she admits. "I think what we're trying to convey is that the nonsmoking public is very likely, as they've done in the past, to ask smokers who are smoking where they're not supposed to be to stop."

Although she agrees with Barton ("nonsmokers don't have any problem butting into other people's business"), that spells trouble to Rudyard's owner Leila Rod­gers. "I think it's a recipe for unnecessary violence," she says. "I see people getting in each other's face over the whole issue. I see people who smoke going, 'Call the cops,' and the nonsmokers going, 'Screw you, I'm going to punch you out.'"

"We'd rather not be the ones that have to enforce these things, but we understand the city can't be in every pub," says Joe Stinebaker, co-owner of the Harp on Richmond. "Nor would they want to be."

Does this mean, then, that should someone dare to light up in their presence, nonsmokers are hereby empowered to take the law into their own hands and make a citizen's arrest? "Of course not," scoffs Barton, who would prefer they just inform the management. "It's not an arrestable offense."

As a matter of fact, the city has no plans to punish smokers who flout the ban, just the bars that allow it to happen. For such places — cigar bars, tobacco stores, private rooms at nursing homes and some hotel and meeting rooms remain exempt — a violation means either a warning or fine between $50 and $2,000, depending on their previous violations (if any) and what kind of mood the municipal court judge is in that day. But provided they take even elementary preventive measures, their chances of getting busted are pretty remote. Since the city's ban on smoking in all indoor public areas — the one that originally exempted bars, including those in some restaurants — went into effect two years ago, Barton says 65 places received warnings out of 365 complaints and 357 investigations. "We don't write these citations very often," she admits.

To comply with the ordinance, bars must remove all ashtrays and prominently display "No Smoking" signs. That's what the city's 43 "sanitarians," who primarily scout for food-safety violations, will now be looking for, either on their routine semiannual inspections or complaint-driven spot inspections. Those will occur, says Jeff Conn, when someone contacts the health department, which will send the establishment a warning letter. If the response is deemed inadequate, or there is no response, Conn or his colleague will pay them a visit.

In other words, bars that continue to allow smoking indoors face little danger of being raided mid-cigarette, but they'd better make sure those signs are up, the ashtrays are gone and they sweep all the stray butts off the floor at the end of the night. And Conn says there's no guarantee an inspector won't show up after normal business hours.

"If we have to go out at night, we'll either work overtime or flex our time," he says. "We don't have immediate response — it's physically impossible for us to do that — but we'll do the best we can to go at a reasonable time that the establishment might be in violation."

"I'm certain there are going to be some bars who are not going to be sincere in their efforts," Barton adds, "and we'll deal with them when it comes to our ­attention."

All the bars and venues the Press talked to said they would, however begrudgingly, comply with at least the letter of the new law. But to hold onto their customers, many will have to do a lot more. Walter's on Washington and Meridian both plan to build outdoor patio areas, and the Continental Club plans to expand its existing patio. The Harp already has an outdoor deck, but Stinebaker says the smoking ban has forced the owners to cough up a "significant amount" for an awning to cover the deck, as well as new lighting and fans for ventilation.

Other places aren't so lucky. Although Rudyard's has an outdoor patio downstairs, Rodgers says she doesn't have enough money to put one upstairs, or something even more elaborate. "For about five years, I've wanted to put a three-hole putt-putt golf course on the roof," she says. "Not because of the smoking ban, but if I get one, people can smoke while they putt."

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