By L.A. Williams, Correspondent
Christian Action League
GREENVILLE — North Carolina’s year-old smoking ban has delighted diners across the state and led to an 89 percent improvement in air quality in restaurants and bars — two of many factors that may have influenced the Pitt County Board of Health to move ahead this week with its appeal of a district court ruling that could weaken the ban.
“If we don’t pursue this appeal, we are going to set this back and damage this law permanently,” board member Mark Hayes told The Daily Reflector, which reported on the health board’s Tuesday (Jan. 11) meeting.
The N.C. General Assembly passed the smoking ban in May 2009 to take affect the following January. The legislation, as initially proposed, would have snuffed out smoking in virtually all workplaces except tobacco shops and manufacturing facilities. Its final version focused on restaurants and bars and includes an exemption for private, non-profit clubs and country clubs.
While indicators show the vast majority (more than 90 percent) of some 24,000 businesses affected by the ban are now happily smoke free, operators of a handful of establishments are defying the law and trying to exploit the private club exemption. Among them are the owners of four Greenville businesses — Live, Club 519, 5th Street Distillery and Mac Billiards — who sued to challenge fines levied against them by the Pitt County Health Department. District Court Judge G. Galen Braddy ruled in their favor, saying it was not fair to enforce the law against private nightclubs while allowing smoking at country clubs.
But health organizations, which formed a coalition to help inform lawmakers on the issue, say the exemption was never intended to undermine the law’s stated purpose — to “protect the health of individuals in public places and places of employment and riding in state government vehicles from the risks related to secondhand smoke.”
“The Legislature crafted a very narrow private club exemption in the law whereby private, not-for-profit clubs and country clubs must meet the same stringent standards in order to qualify for this exemption,” said Pam Seamans, executive director of N.C. Alliance for Health. “Examples of organizations that generally qualify for this exemption include Moose Lodges, VFW clubs, or other veteran or fraternal organizations.”
Following Judge Braddy’s ruling in favor of the bars, the Pitt County attorney filed an appeal on behalf of Health Director John Morrow, after which she was immediately ordered by the Board of County Commissioners to withdraw from the case. Not only did that move leave the Health Department out on a legal limb, but it also led to questions about the motives of commissioner Mark Owens Jr., whose son and law partner, Mark Owens III, represents the bar owners. Although he told the media that he did not take part in the discussion, neither did the senior Owens excuse himself from the closed door session in which the commission decided to withdraw legal support from the Health Department.
“Whether or not there was any impropriety, the sad fact is that this county board obviously did not think it important to defend the smoking ban,” said the Rev. Mark Creech, executive director of the Christian Action League. “If they were concerned about the health of diners or bar and restaurant employees, they would support efforts to keep these places smoke free.”
Even without County Commission backing, the Pitt County Board of Health voted unanimously to move ahead with the appeal. According to The Daily Reflector, Chapel Hill attorney Adam Stein has offered pro bono representation. The N.C. Alliance for Health has said it will assist with court fees, joining the American Lung Association, the American Cancer Society and the American Heart Association, in a letter to the Board of Health stressing the importance of taking the case to the next level.
“Your appeal of this current case will clarify the private club exemption contained in the smoke-free legislation, will allow the Health Department the opportunity to protect public health, and will reduce the confusion and misinformation among Pitt County bars and restaurants on the exact interpretation of the private club exemption,” the letter said.
The Pitt County case isn’t the only legal challenge to the smoking ban.
“There is also a pool hall that is calling itself a country club in Guilford County in an attempt to get around the law,” Seamans said.
Gate City Billiards changed its name to Gate City Billiards Country Club LLC in 2009 in anticipation of the ban’s taking effect. After being cited for allowing smoking, the business appealed its fines to District Court making legal claims similar to the Greenville bars’. But District Court Judge Jan Samet ruled that there is a rational basis for the private club exemption and, therefore, the law does not violate Gate City’s Equal Protection Rights. Gate City has appealed the ruling.
“The law is very clear in what places are covered by the law and which ones are exempted and none of these drinking establishments opposing the law in these legal efforts fit within the exceptions created by the legislature,” Seamans said.
In fact, the law defines a private club as “a country club or an organization that maintains selective members, is operated by the membership, does not provide food or lodging for pay to anyone who is not a member or a member’s guest, and is either incorporated as a nonprofit corporation in accordance with Chapter 55A of the General Statutes or is exempt from federal income tax under the Internal Revenue Code as defined in G.S. 105-130.2(1).”
Endorsed by nearly 75 percent of North Carolinians, according to the 2008 Behavioral Risk Factor Surveillance Survey, the smoking ban has been an overall success, health and business leaders say.
Paul Stone, president and CEO of the North Carolina Restaurant and Lodging Association, told the Associated Press that there has been better compliance with the law than he expected and that it appears the ban has been positive for business.
“Our members, a lot of them didn’t realize how much easier it was to operate a restaurant when you don’t have to worry about smoking sections and you don’t have to do as much cleaning on a monthly or nightly basis,” he said. “There’s been some nice positive effects above and beyond just the health aspect.”
Air samples collected from dozens of restaurants showed a sharp decline in the amount of damaging small air particles linked to tobacco smoke, state officials say. The North Carolina Department of Health and Human Services credited the ban with an 89 percent improvement in air quality in bars and restaurants.
“No doubt, this law is saving lives,” said the Rev. Creech. “Now we just need to be sure we’re moving forward with protecting as many folks as possible from second-hand smoke and not backward with carving out legal loopholes.”
Seamans said lawmakers should consider expanding this important public health initiative by making all worksites smoke-free, and that folks across the state can help by letting their voices be heard.
“They can tell their state and local elected officials that they support the smoke-free law and enjoy eating in restaurants that are smoke-free,” she said.