Floridas New Smoking Ban May Affect Some Businesses More Than Others
Written by Frank Norton on January 9, 2003
By Frank Norton
The statewide ban on all smoking in workplaces approved Nov. 5 could deal an uneven blow to businesses, restaurant and bar operators say, increasing patrons at some while snuffing out others.
Amendment question No. 6, championed by public health advocates as the Smoke-Free for Health Law, becomes part of the Florida Constitution this week and must take effect by July 1. The law bans smoking in all enclosed, indoor workplaces including restaurants but allows exemptions for stand-alone bars where food is "incidental" to alcohol sales, tobacco shops, bowling alleys and certain hotel areas.
That wording will punish certain establishments more than others, business owners say.
"I’m not a smoker but I think it sucks that smokers won’t be able to have a cigarette in our place," said Joe Portela, managing partner at Miami’s historic Tobacco Road.
"I don’t know whether people will just start going to stand-alone bars or places where they can smoke instead, but I imagine it’s going hurt the bottom line here," he said.
The oldest tavern in Miami, Tobacco Road celebrated its 90th anniversary in November. Widely referred to as a bar, it offers a full lunch and dinner menu and is likely to fall under the pending smoking ban.
According to Miami Beach attorney Steve Polisar, the ban not only singles out bar-and-grill type venues but could lend an unfair advantage to other types of establishments.
"If you’re a stand-alone bar or an outside cafe you might be helped, weather permitting, whereas an inside place serving food and alcohol will suffer a potential negative impact," said Mr. Polisar, who is also chairman of Miami Beach’s Nightlife Industry Task Force, appointed by the city manager and commission.
Buzzy Sklar, owner of Automatic Slims, a South Beach locals hangout, agreed, saying the amendment’s downside potential is on "bars that serve a decent amount of food."
How much food service will prompt inclusion under the new law is still unknown. According to the amendment, the Florida Legislature during its spring session must explicitly distinguish stand-alone bars from taverns and restaurants or decide how to treat outdoor venues under the smoking ban.
A lax drawing of those rules could effectively transfer business from taverns and restaurants to outdoor cafes and bars that don’t serve food, Mr. Sklar said. Besides, he said, "smoking and drinking go hand in hand."
Under current Florida law, restaurants must designate at least 65% of their seating as non-smoking areas and hotels must offer smoking and non-smoking guest room. Smoking is already banned in all common areas used by the public such as elevators, educational facilities, health care facilities, public buildings and on public transit.
One local veteran restaurateur is about to get a first-hand lesson on how the law might impact different types of businesses.
Shareef Malnik took over The Forge, an upscale Miami Beach restaurant, from his father several years ago. He now runs two adjacent businesses, a nightclub and an indoor/outdoor banquet facility.
"I have three different businesses that all cater to entertainment, but I have no doubt the law will have a compound effect on the dinner business," he said, adding that it would decrease customer frequency and time and money spent at the table.
The same holds true, he said, for bars that drive big revenue chunks at their respective restaurants.
Legislators have yet to define enforcement measures – a responsibility that could fall under Florida’s Department of Business and Professional Regulations, the Florida Department of Health or counties and local municipalities.
"We have to wait for the legislature to define what the impact will be," said Carol Dover, president of the Florida Restaurant Association in Tallahassee.
She said most restaurateurs are concerned with maintaining a level playing field both within the industry and with outside public health interests.
During the next four months, she said, the association will lobby lawmakers to protect business owners by allowing smoking in as many locations as possible, including outdoor cafes, bars within restaurants and possibly other areas that fall into the gray area of Amendment 6.
"We see this as a property rights issue," she said, rebutting many advocates’ definition of the law as a workplace health and safety bill.
She and others said South Florida hospitality operators may see especially acute reactions from foreign tourists, particularly Latin Americans and those from the Mediterranean.
"We know many Europeans are heavy smokers and that it would be difficult all along, and that’s why we fought it so hard."
She conceded California’s restaurant and bar sales have increased since it enacted its own restaurant smoking bans in 1995 and 1998 but said that growth trailed that of the general economy. "You also have to also look at all the places that went out of business there."
Between 1994 and 2000, total sales in California restaurants serving alcohol rose while the number of establishments serving alcohol dropped slightly, according to the California Board of Equalization, which collects non-income state taxes.
Amendment 6 was supported by 70.8% of voters in the Nov. 5 election and won a majority in all of Florida’s 67 counties. Hundreds of local governments in other states, including New York City, have enacted indoor smoking bans; Florida is only the seventh state to do so.