Banwatch

The latest word from King County: Don't light up within 25 feet of a bus shelter. I'm assuming they're referring to any transit center or roadside rain shelter. I have no idea if that includes bus stop signs without shelters, though they're probably within the definition of "waiting area" as defined by the law. The usual suspects make the usual noises emphasizing education over enforcement.

Confused about this sentence in the report:

Metro banned smoking on buses several years before the initiative was approved.

Smoking was once allowed on Metro?

Surprise! The Puyallup tribe is none too pleased to discover the smoking ban applies to their Emerald Queen casino in Fife. In fact, they've already been issued two citations by Pierce Co. enforcers. The tribe insists that it is a sovereign nation, unencumbered by the laws of the county. County officials dispute that, stating the tribe agreed in writing to follow state and local laws as part of an agreement permitting them to move from the Tacoma waterfront to their current Fife location.

Not to worry, though. The report also mentions that the tribe has law-crafting friends who will push through legislation to ensure the property can be considered as tribal.

"Education before enforcement" means that it will never be enforced

Hi everyone. Not much is new. After going back and forth with Public Health for a few months, we finally got down to the bottom of things. Basically, Public Health will not be issuing any fines for smoking violations. None. Nada! Probably never.

I was told that it basically goes down like this: Public Health receives a complaint. Public Health goes out and investigates. Public Health tells establishment that they need more signage. Public Health makes follow-up visit. If smoking is still happening, Public Health will send something on Public Health letterhead notifying the establishment that they are violating the law. This is basically the end of the road. They might send out a bunch of letters telling the establishment that they are violating the law. Maybe 10 or 20. No fines will be issued at any point.

So, long story short, Public Health isn't going to issue fines to anyone for violating the smoking law.

Banwatch: How many citations in King County?

Well, none, really. 188 complaints so far, though.

The Stranger's Brendan Kiley asked the county for a list of the complained-against. The expected range of watering holes were listed -- places with "sky names" like the Comet, the Moonraker and so on -- along with a whole bunch of hospitals. Hospitals!?

Casa Que Pasa

I've been browsing around and observing what other Washington counties are doing with regards to smoking ban enforcement. Here's an article from today's Seattle P-I regarding Casa Que Pasa in Bellingham, WA (Whatcom County). I used to live in Bellingham and I ate at this place all the time. Yummy stuff. Anyway, I have heard the owner of this place (Abel Jordan) on local talk radio several times. I'm not sure which side to take on this specific issue; rather, I am more interested in seeing how Whatcom County handles this situation.

Bellingham eatery defies smoking ban: Whatcom County wants Casa Que Pasa fined for violations

Roger Valdez, The Tobacco Czar

The Seattle Weekly's Philip Dawdy wrote something a few weeks ago about Washington's smoking ban. Here's an excerpt that I found interesting:

Nannyism's Poster Child

The big dog in the nanny trend is the smoking ban. Approved by voters in November, the ban tries to address secondhand smoke but has already led to a sinister, stigmatizing strain of nannyism that smacks of mission creep by public-health officials.

In this, the poster child is King County's Roger Valdez.

When Valdez and I finished our recent conversation (and full disclosure here, I am a smoker), I looked at notes from an interview I did with him last October, during the campaign for I-901, the smoking-ban initiative. At the time, the tobacco czar assured me that the 25-foot rule would be no problem, despite the claims of some business owners and citizens to the contrary.

"Only if smoke is going inside the establishment" would Valdez, a former smoker, bring the hammer down.

"The whole thing is to create clean indoor air, not in stopping people from smoking on the sidewalk. We aren't interested in going and writing tickets for a guy standing outside the door. That's what some people want the public to believe. They want you to believe we are extremists. That's baloney."

But Valdez has changed his tune. Earlier this month, he enthused about seeing clerks race out of their stores to shoo away smokers within 25 feet of their business' doors, as if they had suddenly been deputized to police the sidewalk.

I asked Valdez if his crew of enforcers could take action against businesses that refused to enforce the 25-foot rule. He said they would if they received complaints from the public.

So what's the standard of proof that there is a violation?

"We don't have to prove anything," Valdez said. "If we get a complaint of smoke coming in from outside, you have to show by clear and convincing evidence that smoke isn't coming inside."

By Valdez's logic, the sketchiest complaint made to his department is sufficient evidence of a violation to trigger enforcement from the public-health department. Indeed, the department has already visited several local establishments to enforce the 25-foot rule.

And what's the objective standard that smoke is drifting into a business—you know, the kind of evidence that would stand up in court? Is it a nosy neighbor, a self-appointed hall monitor claiming that they smelled smoke in the vicinity of a coffeehouse?

"I don't know how they are going to show that," he said. Ever confident that all Seattleites will obey the 25-foot rule, Valdez predicted that such a case wouldn't hit the courts because everyone knows what the law means and knows "how to comply."

Two weeks ago, Valdez filed papers to fill the vacancy created when former City Council member Jim Compton stepped down last month. City Council members left him off the list of finalists Jan. 17.

You can read the full text of the article here: http://www.seattleweekly.com/news/0603/nanny-seattle.php

FINALLY! Some information!

How many weeks did it take to get a simple answer to a simple question? I originally wanted to know if business owners could apply for a rebuttal ahead of time and how to go about with this process. I finally got a clear answer last week from Public Health.

Hello James:

A business owner cannot apply ahead of time for a rebuttal of the 25 foot rule. A rebuttal is only indicated if there has been a complaint and a notice of violation and the inspector determines that people smoking outside need to be 25 feet away to prevent smoke from entering the building or protected space.

In answer to your question, for this new law, Public Health is the enforcement agency.

In terms of the process and the actions by our department, we stress education and will only use fines as a last resort. We begin with a notice of complaint, followed by an inspection and then, if necessary, a notice of violation.

For your employee complaint, I am copying the employee's supervisor.

Thanks,

Matías Valenzuela
Public Education Coordinator
Public Health - Seattle & King County

Even though a few of my questions weren't answered (why are Public Health employees giving misleading information to the public regarding which agency is enforcing the ban, etc.), I can now safely say that there is no way to get an excemption/exception/whatever ahead of time for any outdoor area if it is within 25 feet. The only way to get one is to have a health inspector notice a violation and notify the business (In writing? Verbally? Who knows!), at which point the business owner must rebut the 25 foot presumption

I guess this serves as a message to all owners and managers of bars and restaurants in Seattle: Go ahead and allow patrons to light up in outdoor areas, even if those areas are within 25 feet. Public Health is not enforcing Washington's smoking ban. You won't get fined. If anything, you will get a warning. And a suggestion to put up some more signage. And then, perhaps you shall receive a mailed warning on Public Health letterhead with a signature or something. And then another verbal warning. Maybe you'll get some more of those free SMOKE-FREE WASHINGTON signs. But you won't get a fine!

I was also highly amused the other day by a friend's story. He was smoking on a street corner 25 feet from the door to a bar. A lady and her child were waiting to cross at the light and the lady mentioned my friend's cigarette smoke. She also mentioned something about how she was glad that Initiative 901 passed. He shot back with, "Well, if I-901 didn't pass, I'd be smoking in a bar right now and not in your face."

Oh, the hilarity of it all!

Nice to meet you!

Hi, I'm Dan, I live in Seattle and I'm a former smoker. The first three dozen times I swore I quit smoking? Lasted for hours, maybe a couple days now and then. The 37th time happened over the space of a couple of weeks and months, I just smoked less and less until I wasn't smoking anymore. What was different this time? Damned if I know! I'm sure as hell not going to give anyone a "if I could do it you can, too!" motivational talk based on something that just... sort of... happened.

Brutally honest, I like that the air is cleaner in Seattle's bars these days. I'm really not bothered by going home not smelling like an ashtray, or tearing up thanks to emissions from the row of human chimneys sucking down beer and Marlboros at the bar. I think the 25-foot rule is a little silly, and I think that a law which goes as far to prohibit smoking in outdoor/patio areas treads a little too far into curtailing property rights than should be permitted.

Although James' quest to find information related to property owner rights and responsibilities kept my attention, the dismal and dismaying response of our local government when contacted for that information ensured I would closely follow this developing story. Regardless of how I feel about the new law, the delay/deny/divert/insult/ignore tactics, in this instance, from the public officials charged with disseminating relevant information about the smoking ban are nothing short of appalling and completely unacceptable. This is not the sort of information a citizen should have to resort to making public shaming Internet posts in order to obtain!

If I didn't know any better, I'd swear that King County officials are simply ignoring everyone -- anti-smokers, smokers, bar owners, James -- in the hopes that they'll all shut up and go away. Anecdotal accounts of enforcement activity (or the lack of such) make me wonder. However, those same officials (especially Roger Valdez) seem to have virtually no delay when providing quotes in support of the ban, a practice that suggests a certain institutional bias, the sort of thing that certain local weeklies love to write about. Will they be as fast to provide quotes, then?

I hope that's just rhetorical bloviation on my part. I'm willing to believe that King County have nothing but the best intentions to deliver impartial information on rules and regulations to its residents and citizens.

But not for too much longer.

Just a quick (yet lengthy) post.

Public Health replied to me the other week:

Hello James:

In answer to your question about exemptions or rebuttals of the 25-foot rule, we have a complaint-based approach to applying the new law. We stress education over enforcement, and work with establishments, prioritizing education, so they come into compliance. However, in the complaint process, a business would have the opportunity for a rebuttal. If you know of an establishment that you believe is not in compliance with the new law, please let us know, and our department will follow up with the establishment. Complaints can be made via the web or by phone (http://www.metrokc.gov/health/tobacco/smoking.htm).

You ask about our employee and his writings in a personal online journal. As an employer, we do make sure that our employees are professional in the work they do and how they represent our department. However, we cannot control what an employee writes while not at work and as a member of the public.

Thanks,

Matías Valenzuela
Public Education Coordinator
Public Health - Seattle & King County

So, here's my reply:

Mr. Valenzuela,

Thanks for your reply. I have additional questions regarding this law. I am assuming you are the spokesperson for Public Health regarding these issues, as you are the only person replying to my emails at this point. If someone else should be handling my questions, please let me know and/or forward this to the appropriate person.

I understand that this email is a bit lengthy, so I will isolate my questions.

Based on your reply of 1/4/2006, it is my understanding that there is no rebuttal process until a health department worker comes out to an establishment and notices that there could be a violation of the 25-foot rule. At this time, the business owner would have the opportunity to rebut the findings of the health inspector. However, in previous emails to Public Health, I was told that a business owner could submit a rebuttal to the Director of Health for review (per John Bennett on 12/19/2005), thus suggesting that businesses may preemptively rebut the 25-foot presumption. Assuming the evidence presented in the rebuttal is found to be clear and convincing, the establishment would then be granted an exception/exemption to that rule in accordance with the provision allowed by I-901. This leads to three of my questions relating to the 25-foot rule and possible rebuttals/exemptions and so forth.


Q - Can business owners apply ahead of time for a rebuttal to the 25-foot rule, or does a health inspector have to come out and see a violation occurring and then issue a citation or formal warning before the rebuttal can be submitted for review?

Q - If it is possible to preemptively rebut the 25-foot rule, does the Director of Health have a review process in place for handling these requests? If there is a process in place, please give the details of this process and how these rebuttals are be handled through your office. Additionally, please let me know if any rebuttals have been submitted by any business within King County.

Q - What is the Director's definition of "clear and convincing" evidence? I'm assuming the standard legal definition applies here. Please advise if your department is using a different definition.


Public Health employees have mentioned that this is an "unfunded law" and that Public Health has not issued any citations (per Scott Neal on 12/22/2005). I also understand that local law enforcement is responsible for issuing citations in outdoor, public areas. However, your employees have suggested for citizens to contact the Liquor Control Board or perhaps local law enforcement regarding violations that occur inside businesses (per Scott Neal on 12/22/2005).

I contacted the Liquor Control Board on 12/27/2005 and was told that it is the responsibility of the local health department to enforce the smoking ban inside of a bar or restaurant. I have yet to receive a statement from the Seattle Police Department, but we can probably assume a similar response. Furthermore, according to the Washington State Department of Health brochure regarding the new law, it states that "local health jurisdictions will enforce the Clean Indoor Air Act for businesses [...]" (http://secondhandsmokesyou.com/docs/Workplace_QA.com.pdf). This discrepancy leads me to my next question.


Q - Which agency is responsible for enforcing the law inside of businesses? If it is indeed the local health departments' responsibility, why are your employees directing citizens to complain elsewhere when these other agencies have nothing to do with enforcing the ban inside of businesses?


I understand your department's stance with stressing education rather than enforcement. It is undoubtedly more cost effective to handle the new law this way because I'm certain that Public Health doesn't have a budget that would allow for bands of roving inspectors operating 24/7/365 to crack down on illegal smoking. However, the problem with Public Health's lackadaisical "education over enforcement" stance lies in the fact that bars and restaurants that are following the law -- no smoking inside and no smoking within 25 feet of doors or windows, including all outdoor deck and patio areas -- are risking a loss in business to bars and restaurants that are allowing illegal smoking.

There are many bars in King County that have set up illegal smoking areas on outdoor deck/patio areas that are either clearly within 25 feet of doors/windows or are also part of the licensed liquor establishment (thus qualifying it as a "workplace"). Complaints have already been made against several businesses. To my knowledge, these places are still allowing illegal smoking.

Based on previous conversations with your employees, Public Health has decided just to tell these businesses to put up more signage (per Scott Neal on 12/22/2005), or that they need to hand out more brochures, or perhaps some other form of education instead of actually issuing fines to and/or revoking health licenses from violators. This gives the impression that Public Health doesn't know how to enforce the law, or perhaps Public Health is not planning on enforcing the law at all. I believe that Public Health should continue with an educational approach, but you must also realize that Public Health is doing a disservice to the public by failing to act swiftly because it gives the impression that you're going to go along with these bars and ignore the law. This leads to my final question on how you plan on enforcing the law.


Q - Does a business have to rack up a certain number of warnings before Public Health takes action? If yes, how many violations until a citation or revocation of the health license for the establishment? Basically, I want to know the step-by-step procedure that your department is using when it receives complaints about illegal smoking and the method of escalation you are using in response to repeat violators.


In regards to your employee's actions, I understand that you cannot control what an employee does outside of the workplace. But you most certainly have control of your employees when they issue correspondence on behalf of Public Health, and that is the root of my concern with the incident in question. I'm assuming part of your employees' training includes instruction on how to correspond with the public in a professional manner. This employee inappropriately and unprofessionally interjected his personal opinion into government correspondence by telling me how to spend my time and energy. I take this as a suggestion that your employee would prefer to have citizens shut up and stop pestering him rather than continue to ask questions. I'm sorry, but your employees are here to answer questions from the citizens, and we expect your employees to remain professional throughout all lines of communication.

I initially contacted Public Health with the hope of getting straightforward answers regarding Washington's smoking ban. I certainly did not write to Public Health to have your employee reply with a little quip on how to spend my time and energy. I want you to consider this as an official complaint regarding your employee's conduct. I trust that your department will consider retraining the employee in question or perhaps reassigning him to duties other than answering emails and phone calls from the public.

Thanks again for your time.

P.S. I will be here beginning tomorrow until the end of January. I've added Dan Berkes as an author, so hopefully he'll keep all of you entertained! Goodbye!

Hello 2006

Now that the holidays are over, I figure it's time to start contacting our friends at Public Health again regarding the smoking ban. Roger Valdez has not replied to my email that I sent on December 19 regarding the actions of his employees and my questions about the smoking ban. I sent an email to him and also Matías Valenzuela (another Public Health employee that has been corresponding with me) this morning letting them know that I'm still here and that I still want answers to my questions. I'm going to keep with my attempt to be pleasantly persistant.

I should probably explain Matías Valenzuela's role in all of this. I had a conversation with him a few weeks ago when I called the Director of Public Health's office to inquire about how a Tobacco Prevention Program employee allegedly recorded a phone conversation with a citizen that was calling in with questions. He said that he spoke to Roger Valdez and he stated that it is not standard procedure for Tobacco Prevention Program employees to record phone calls. See related blog entry by Dan Berkes over here: Ask about the new smoking ban, get monitored by the government?

But I'm going to follow the Ombudsman's advice: Be sure you are asking the right question and are focusing on a resolution, rather than just recounting the transgression. So, I'll try to overlook the fact that Public Heath employees have allegedly record phone calls, have told me how my energy would be better spent, and how they have personal Internet journals with "F-CK YOU ALL" statements about their constituency. Instead, I'll attempt to focus on figuring out which agency is responsible for enforcing the smoking ban and what Public Health plans on doing about it. Oh, and how to get exemptions/exceptions/rebuttals/whatever to the 25 foot rule for decks/patios at restaurants and bars.

What a silly law

I seem to remember somebody at Public Health mentioning that the smoking ban is an "unfunded law" and that they are not issuing citations. I also seem to remember someone from Public Health giving the suggestion that the Liquor Control Board should be the agency responsible for issuing smoking violation citations in establishments that serve liquor. I sent an email to the Liquor Control Board last week asking if they would be enforcing the ban. Here's the reply:

Dear James,

Thank you for your inquiry. Contrary to the information that you have received the Liquor Control Board is not charged with the enforcement of the public smoking ban. This responsibility rests with the various health departments throughout the state. We have run into a great deal of confusion on this issue because we do regulate the 12,000 or so liquor licensed retail outlets and are charged with regulating the laws regarding youth access to tobacco. None of this involves the smoking ban.

I am sorry for any inconvenience you may have suffered as a result of the incorrect information you may have received. I am including a link to the Washington State Dept. of Health at which you may find more information. http://www.doh.wa.gov/

Respectfully,

Rex Prout, Acting Chief of Enforcement
Washington State Liquor Control Board

Ok. So, the liquor enforcement agents are not enforcing the ban. Public Health is not enforcing the ban (per the phone conversation between them and a Concerned Citizen last week, Public Health stated that they have visited several places over the past couple of weeks and observed smoking violations but they didn't issue any citations). I know the Seattle Police Department will laugh at me if I ask about enforcing the ban.

I guess smokers can go back to lighting up wherever they want because nobody's going to enforce the ban.

Filter replacement

This is what smoking does to a ventilation system in a bar. Yummy.

Let's meet the folks at the King County Tobacco Prevention Program

A concerned citizen (and friend of mine) wanted me to mention an interaction that he had today with Public Health employee Scott Neal.

This friend of mine called Public Health today with questions about the smoking ban. I figure I'll just cut-and-paste an email that I sent to the Tobacco Prevention Program Director Roger Valdez (he's the "Public Health Supervisor" mentioned in previous entries):

Hi Roger,

I haven't received a response to my previous complaint. I understand that it may take some time to respond, but I'm hoping you can provide some sort of acknowledgement or receipt of my complaint.

Also, I have another issue that I'd like you know about. A citizen called your department today around 2pm and spoke with the supervisor Scott Neal. Some sort of automated voice came on halfway through the conversation letting them know that the allotted recording time had ended. This citizen believes that your employee was recording the conversation without prior consent.

Is it standard practice for employees in your department to record telephone conversations from citizens without obtaining consent for the recording?

Thanks for your time.

How strange!

An attempt to be pleasantly persistent

Given the fact that the King County Ombudsman should be used as a venue of last resort, I am going to wait a while and see if I get anywhere with Public Health before taking matters to the next level. I decided to write another email to them today while keeping in mind the following points from the King County Ombudsman's Citizen Complaints page:

Be clear and pleasant.
Before you contact an agency, determine exactly what the problem is and what remedy you are seeking. Pleasantly state the issue and what you want. Public employees, like most of us, respond favorably when a positive and courteous approach is used.

Be persistent.
Persist in your effort to resolve the issue. Ask to speak with a supervisor if the staff person is unable to assist you. Be sure you are asking the right question and are focusing on a resolution, rather than just recounting the transgression. Find out if the agency needs any additional information from you that will help them better understand the problem, and diligently follow up.

So, I pleasantly persisted with the following email to the Tobacco Prevention Program today:

Hello,

I would like more information about the 25 foot rule and the provision allowed by I-901 for property owners to rebut the presumption that 25 feet is the minimum distance from a door, window, or air intake for people to smoke. Is it acceptable for property owners to judge for themselves whether or not smoke is entering the building/workplace if it's closer than 25 feet?

Basically, I'd like to know if property owners need prior approval from Public Health on whether or not smoking can be allowed in an area closer than 25 feet in an outdoor area that is not part of the workplace but is still part of the property. Will the establishment face fines for not having prior approval from Public Health for smoking in these areas?

Thanks

I hope this post doesn't seem too terribly patronizing as I do not intend for it to be taken that way. But I don't respond favorably when a stonewalling approach is used by a government agency.

New ceiling

My neighborhood bar is halfway through the process of replacing ceiling tiles. I'll let you guess which tiles are the old ones.

Response #1 from Public Health Supervisor

Hello James,

Can you tell me what information that you need and I would be glad to see if we can get it to you? What was your question about the ban? I would be glad to help you with this. Feel free to send me the original e-mail with your concerns or questions and I will respond as quickly as I can.

Thanks,

Public Health Supervisor

Wow, this guy is a real trouper for working this late. I would personally hate to have to deal with this kind of B.S. (yet here I am). Anyway, I replied with this:

Hello Mr. Supervisor,

The email from your employee is below. The portion that troubles me is the fact that this employee is stating that "[my] energy would be better spent increasing the owner's smoking clientele and helping their patrons and employees quit."

While I am a non-smoker and certainly not an advocate of smoking, I am very disappointed with the fact that there are employees at Public Health that are voicing their personal, inappropriate beliefs about smoking. I emailed your department to receive information about the smoking ban. I did not request a suggestion of the employee's views on how my time could be better spent.

This issue is of great concern to me and other property owners around the state. I think that we deserve a bit more respect when requesting information from a public agency. I can only hope that you have more professional employees in your department and that this is an exception to the normal operations of your staff.

I would also like to note the following entry from this employee's online journal regarding the smoking ban: "HA B----ES!!! I WILL BE ABLE TO GO TO ALL RESTAURANTS ANS BARS IN WA!!! F--K YOU SMOKERS! F--K YOU ALL :-)" It seems as if this employee is taking this a bit too personally, and I can now understand why I'm having so much trouble getting a clear answer from him. You can view this online journal entry here: [url removed]

As for my original inquiry, I would like to know the exact process on how to apply for an exemption, exception, rebuttal, or whatever terminology your department is using (I have yet to receive a clear answer on this) to the 25-foot rule in regards to Washington's smoking ban.

Thank you for your prompt attention to this matter.

Sorry kids, I'm not mentioning names or URLs here because I don't think that's appropriate. But I also don't appreciate fascist sentiments from a public employee on a public Internet journal, especially when the employee in question is refusing to give straightforward answers to my questions and is insulting me by suggesting that I should find something better to do with my time.

Well, to be honest, I probably should. Oh well.

An Open Letter to a Public Health Supervisor

I wonder how long it will take to get a reply to this. They've been good at being prompt with email replies, albeit the replies I've received have been nothing but roundabout talks about how there isn't an exemption process yet there is some way for bars to challenge the rule but we won't tell you how without being difficult and rude and so forth. Whatever.

Hello,

I would like to submit a complaint for review regarding one of your Tobacco Prevention Program employees. The employee in question is [removed]. According to county records, you are his supervisor. Please advise on how to submit a formal complaint against this employee and also the Tobacco Prevention Department as a whole.

The issue at hand is the fact that the aforementioned employee has inappropriately interjected his personal beliefs and advice in an email that he sent to me this morning regarding Washington's smoking ban.

Furthermore, the issue that I have with the Tobacco Prevention Program is the fact that I have yet to receive a clear, detailed response from Public Health with regards to my smoking ban inquiry.

I trust that you will address this situation promptly. Let me know if you are the appropriate person to handle this matter or whether this falls under the jurisdiction of the county ombudsman.

xoxoxo
James

So, we'll see where this takes us. People keep writing and AIMing me asking me to keep with the updates. All of this is public record anyway, so I might as well post it here so that you can all track the process of this mess.

edit: Wow. I just got a reply from the supervisor at 9:30PM. This guy's working late. :( I hope I make this worth his time.

Public Health tells me what to do with my "energy"

OK. After this post, I will be completely caught up with what has happened in the past few weeks and I can give my poor fingers a break.

Anyway, I was excited after receiving the previous email because it appeared as if Public Health was indeed allowing rebuttals to the 25 foot rule, thus paving the way for exemptions to outdoor patio/deck areas. I sent the following email as a reply:

In regards to the application of rebuttal, is there a specific procedure that is currently in place for rebutting the 25-foot rule? If there is no formal procedure or process in place, should an owner of an establishment send a letter to the Director of Health that outlines the clear and convincing evidence to support the owner's position?

I figured I was finally getting somewhere. 30 minutes later, the following email from Public Health showed up in my inbox:

Submitting an application of rebuttal would entail mailing the Director of Public Health with pertinent evidence sufficient to reach the "clear and convincing" threshold. I would suggest that such energy would be better spent increasing the owner's smoking clientele and helping their patrons and employees quit.

Sincerely,

Public Health- Seattle & King County
Tobacco Prevention Program

This is the point where they crossed the line with me. I am outraged at the fact that a public servant has decided that it's OK to condescendingly interject their personal beliefs on how anyone should be spending their time.

So, there you have it. Attention all bartenders and bar owners in King County: According to Public Health - Seattle & King County, you should forget about trying to get an exception for your outdoor areas. You must immediately take on the responsibility of telling your customers what to do with their lives and how to manage their nicotine addictions. Who care's if it's bad for business? You're spending your energy in a better way! It's the right thing to do, no? And, please, stop pestering these poor Public Health employees with your inquiries on the 25 foot rule because they will start being rude in the hopes that you will just go away.

Like I said before, people will quit when they decide to quit. Sometimes, they die before they decide to quit. It's hard to get someone to quit an addiction. It wasn't easy for me to quit smoking, but I'm happier with my life ever since I quit. Regardless of how I feel, I'm not about to go on a crusade to encourage smokers to quit. And I certainly don't expect any bartenders or bar owners to do the same because it would probably be bad for business.

Anyway, I am disappointed with the fact that a spokesperson for Public Health feels that it's perfectly acceptable to tell people that they should be doing something else with their energy and to basically stop inquiring about the new smoking ban. I'm sorry, but I think Public Health employees are paid to provide facts on public health laws and not their personal opinions or righteous beliefs.

(I removed the names of the people at Public Health that replied to my emails. I didn't want to unleash the powers of the Internet on these poor souls.)

(I also haven't replied to this email because I decided that my energy would be better spent by whining about this on the Internet.)

"'Clear and convincing' is a legal threshold that is higher than 'preponderance of evidence'"

So, based on the information that I had gathered after that last email from Public Health, it became apparent that these other bars didn't have permits for smoking. They were just ignoring the law. Or, were they given an exemption? At this point, it wasn't exactly clear.

But the majority of places that I patronize are following the law exactly as it is written. No smoking on the patio. No smoking on outdoor decks. Period. So, this is concerning to me because it's taking away smoker business from law-abiding establishments. December is already a slow month in the bar business and this sure isn't helping. If other bars can get smokers back by allowing smoking in outdoor areas that are part of the establishent, business would surely pick up a bit. Instead, they are losing customers to the places that are allowing "illegal" smoking.

So, instead of being rewarded for following the law, businesses that are complying with the smoking ban are being punished because smokers are choosing to patronize places that allow smoking on outdoor patios.

I advised this in an email to Public Health on December 16. I received a reply this morning:

[No establishments have] been granted an exemption to the 25 ft rule. To clarify, there is no exemption process outlined in RCW 170.60 and exemptions will not be given out to any establishment at anytime in King County.

There is, however, a process for owners of establishments to rebut the presumption that 25 ft is the minimum distance required to ensure that smoke does not reach the entrances of the establishment and/or get into the building. The burden of proof in these instances rests with the owner of the establishment to show through "clear and convincing evidence that...the public health and safety will be adequately protected by a lesser distance."

"Clear and convincing" is a legal threshold that is higher than "preponderance of evidence" which generally requires that the majority of available evidence speaks to the applicant's position. To date, no establishment has sent application of rebuttal to the Director of Public Health.

So, according to this latest email, there is apparently a process to rebut the 25 foot rule! This is basically the same as an exemption to the 25 foot rule, right? I'm scratching my head at this point and wondering why I wasn't advised of this sooner. Up to this point, I had been told by various health department employees via phone and email "NO NO NO NO NO EXEMPTIONS. PERIOD. NADA. NOTHING. GO AWAY." And now it's like, "oh hey, p.s. there is a process for doing this. maybe."

It appears I have broken through some sort of bureaucratic crust and have discovered a small hint of leniency.

Tobacco Prevention Email Hotline

December 8th came and went, so I went out to a couple of the bars that claimed they had exemptions to the smoking ban for certain areas. I was curious to see if they were letting people smoke in those areas.

Well, sure enough, people were all packed in these areas, puffing away on their sticks. And they were allowed to have booze in these areas, thus making it a "workplace," and most of the smoking areas were clearly within 25 feet of a doorway. I asked around if they were just ignoring the smoking ban. All of the places told me that they were granted exemptions by Public Health.

Perhaps things had changed in the past few weeks. I figured Public Health was starting to issue exemptions due to the apparent high demand for such things. I sent a friendly email to the address on Public Health's web site asking for information on how to get an exemption.

Hello,

Several bars in the city of Seattle are claiming that they have been given permission by Seattle/King County Public Health to allow smoking on outdoor patios/decks. Can you give me information on how to apply for this exemption?

Thanks.

I received an amazingly prompt reply the next morning from our pals at the health department.

There is no exemption process. Owners who have a patio or deck where employees are not allowed to go and have sufficient space to prevent smoke from getting into the entrance of the building or into the building may be able to have smoking.

Sincerely,

Public Health- Seattle & King County
Tobacco Prevention Program

Brick wall. Or not?

12/8/05 Never Forget

My story begins with getting some clarification on rumors that had been flying around ever since Washington voters approved the smoking ban back in November 2005. I had been to several bars and restaurants in the city during the month between the vote and the ban, and several places were claiming to have already obtained "permits" or "exemptions" or "variances" (the exact verbiage varied from bar to bar) for smoking in outdoor patio/deck areas. But the owner of my bar (and when I say "my," I am referring to the fact that I frequent this establishment moreoften than other places and does not necessarily mean that I am employed there) was told by the health department that no exemptions were being issued to anyone, and if exemptions were to be issued, it wouldn't be happening anytime soon.

I just had to get to the bottom of this inconsistency, so I made a few phone calls the day before the ban went into effect (December 7).

According to Public Health - Seattle & King County, establishments will be allowed to apply for exemptions to the 25 foot rule for outdoor patio/deck areas that are part of the premises. They must show "clear and convincing" evidence that smoke will not enter the establishment. The exact procedures and criteria haven't been laid out yet and no permits are being issued at this time. This won't happen for "a while," and from what the person on the phone told me, it sounded like "a while" meant several months.

This leads to issues involving "workplaces" and "licensed liquor establishments." If the establishment has been given a permit for smoking in an outdoor area, employees will not be allowed in that area except for before the start of business and after closing for set-up/cleaning purposes. The outdoor area still qualifies as a workplace that is protected by the smoking ban, so it cannot be a workplace during business hours.

According to the WA State Liquor Control Board, this means that the establishment will lose its liquor license for that portion of the premises because employees will not be allowed in the area. Customers will have to leave their drinks behind when going into the smoking area. Visible supervision of the area is not enough because employees must be able to enter the area if liquor is present, and they can't enter the area if people are smoking in it. So, in this situation, customers would have to leave their drinks at the door and step outside for a smoke.

If the bar is not given an exemption to the 25 foot rule, smoking may still be allowed in outdoor areas 25 feet away from doorways or ventilation intakes as long as the establishment relinquishes its liquor license for that portion of the premises. Since employees cannot be in the area where people are smoking, patrons must leave their brewskies or martinis and step 25 feet away from where they left their drinks in order to puff away.