SF operators, cigarette maker target smoke ban

Nation's Restaurant News, Feb 14, 1994 by Alan Liddle

SAN FRANCISCO -- Tobacco giant Philip Morris Cos., the owners of three local restaurants, a hotel association executive and three others have asked the courts to overturn this city's stringent new smoking ordinance.

Observers of California's high-stakes smoking-regulation wars said the San Francisco lawsuit could mark the beginning of a Philip Morris campaign to challenge, or at least slow the spread of, restrictive smoking laws at the city and county level.

They indicated that the nation's largest cigarette maker might have set such a course because the tobacco industry has failed in recent years to win statewide protection from local smoking bans despite sizable campaign contributions to state lawmakers -- who, as a group, reportedly received more than $226,000 from tobacco lobbyists in 1993 alone.

Adopted by the board of supervisors, San Francisco's ordinance took effect Feb. 1 and prohibits smoking in all enclosed workplaces except bars. Restaurants have until Jan. 1, 1995, to comply, at which time smoking will be permitted only in restaurant bars and outdoor seating areas.

Under the new regulations, hotels may permit smoking in up to 25 percent of their lobby areas and in up to 65 percent of their rooms. Business owners may petition supervisors for a "hardship" exemption from the smoking ban after the first year but must be prepared to demonstrate how the regulation has harmed their enterprise.

The San Francisco ordinance, along with a growing number of restrictive smoking laws nationwide, was spurred in part by the U.S. Environmental Protection Agency's finding in 1993 that secondhand smoke contributes to death and illness among non-smokers. It had been law for just a few hours when Jeffrey Tanenbaum -- an attorney acting on behalf of Philip Morris, Buchanan's Bar & Grill, Capp's Corner and the New Pisa restaurant, among others -- filed a lawsuit in San Francisco Superior Court, seeking to overturn the measure.

Tanenbaum is a partner in the San Francisco office of Littler, Mendelson, Fastiff, Tichy & Mathiason. He said supervisors overstepped their authority when they banned smoking in the workplace.

"We filed suit challenging the San Francisco smoking ordinance on the grounds it is preempted by the California Occupational Safety & Health Act and Federal Occupational Safety & Health Act," Tanenbaum said. The ordinance, he said, "is invalid and unenforceable."

Both CAL-OSHA and FED-OSHA, as the state and federal acts are known, have dozens of regulations that deal with smoking. Tanenbaum said, and both ban smoking by people in certain jobs and at certain work sites. "But neither," he stressed, "ban smoking in restaurants."

Tanenbaum said he successfully used the argument that CAL-OSHA and FED-OSHA supersede local regulations in 1992 to convince the courts to overturn San Francisco regulations related to the use of computer video display terminals in the workplace.

"We already have state and federal regulations regarding workplaces and smoking, and I don't feel the city should be able to dictate how restaurateurs handle service," Capp's Corner and New Pisa owner Tom Ginella said, explaining why he decided to sue the board of supervisors.

Added Ginella, "The best policies for restaurants are made by the owners, or they don't stay in business. We prefer good old American 'freedom of choice.'"

Golden Gate Restaurant Association executive director Cecilia Metz said her San Francisco-based organization opposes local smoking bans in generarl and certain provisions within the new city ordinance but is taking no public position on the lawsuit.

The GGRA was one of the forces that successfully lobbied supervisors to have freestanding bars and restaurant bars exempted from the smoking ordinance. However, the restaurant association and others -- including the North Beach Chamber of Commerce -- failed in their efforts to win exemptions for foodservice establishments that do not sell alcohol, such as coffee shops, coffee houses, and small restaurants and cafes that sell beer and wine but do not now have a bar area.

In North Beach, San Francisco's historic Italian district, owners of many of the neighborhood's estimated 45 to 50 small cafes and coffee houses are agitated by the prospect of a smoking ban beginning in 1995. Attorney Mark Romeo, president of the North Beach Chamber of Commerce, said that while the small size of many of those establishments made it difficult for their owners to comply with past regulations requiring them to designate smoking and non-smoking sections, the operators met that challenge.

"Our members are sensible and sane business people who are sensitive to the needs of customers -- smokers and non-smokers alike," Romeo remarked. In opposing the smoking-ban ordinance, he said, "Most members felt they had dealt with the [smoking] problem on their own and didn't need the city coming along to deal with a problem that had been dealt with years ago."

Romeo said the ordinance's exemption of restaurant "bars" will most likely "encourage people to do a lot of creative restaurant design."