Despite Lexington's indoor smoking ban, many strip-club patrons are lighting up

vhoneycutt@herald-leader.comOctober 14, 2012 

Plumes of smoke rose into the air as customers took pulls from cigarettes and puffed on cigars. Ashtrays were placed on each of the tables next to tabletop advertisements for the bar's selection of cigars.

There was a No Smoking sign posted near the front of the strip club on New Circle Road, but few other signs that Lexington has an indoor smoking ban.

Platinum Plus is one of five Lexington strip clubs — along with Cowboys, Divas, Paradise City and Spearmint Rhino Gentleman's Club — that have been cited in the past year for violating the city's smoking ordinance.

The number of citations for violating the ban have decreased in recent years, but officials say some bars and strip clubs have resisted the ordinance. Critics say the ordinance should be tweaked to increase the penalty and snuff out the scofflaws or place the onus on the smoker rather than the establishment.

Tucker Richardson, a Lexington attorney who represents Platinum Plus, Cowboys and Divas, said staff at those businesses are informing patrons that they are not allowed to smoke, and No Smoking signs are posted.

Many out-of-town customers do not know Lexington has an indoor smoking ban, he said.

"We are trying to enforce the smoking ban without running off the clientèle," Richardson said. "We're trying to balance our interest in making an honest dollar and supporting the smoking ban. Are we going to throw somebody out of our club because they violate the smoking ban?"

The Urban County Council enacted an indoor smoking ban in 2004, prohibiting smoking in workplaces and businesses open to the public.

Under the ordinance, businesses cannot have ashtrays indoors, and employees must ask people who are smoking indoors to extinguish their smoking materials or leave. The ordinance requires businesses to take any legal means necessary to stop a person from smoking. Lexington's smoking ordinance was revised in 2008 to clarify that people could not smoke in a workplace, bingo hall or public-transportation facility.

Businesses caught violating the ban can be fined $100 for the first offense, $250 for the second and $500 for each subsequent offense that occurs within a year, said Jessica Cobb, who oversees smoking-ordinance investigations for the health department.

Cobb said most establishments comply with the ordinance; the number of citations has decreased from 419 in 2005 to 15 in 2012 as of early October, she said.

Still, Cobb said some resistance remains.

"We've seen improved compliance overall," she said. "But that's kind of the remaining group, the strip clubs, that are not as compliant as the other establishments in the county."

Accepting consequences

Platinum Plus has been cited 52 times since 2008, and Solid Platinum, a former business in the same building, was cited 15 times dating to 2008.

Platinum Plus has been cited at least six times this year for allegedly failing to enforce the city's smoking ban, a misdemeanor. Those citations are pending in Fayette District Court. The strip club was cited most recently in July.

According to a citation from a Lexington-Fayette County Health Department investigator, there were ashtrays with cigarette butts on the tables, cigarette smoke in the air, and a man smoking at the bar. The scene was similar Friday night.

In fact, when a Herald-Leader reporter asked to buy a cigar from a glass case in the back, the bouncer asked only whether he worked for the health department, the officials responsible for enforcing the ban. When the reporter said no, the bouncer gave him the green light to fire it up.

Three other Lexington strip clubs have pending cases in Fayette District Court: Spearmint Rhino Gentleman's Club on Athens-Boonesboro Road and Divas and Cowboys, both on Russell Cave Road. Since 2011, Divas has had 10 citations. Spearmint Rhino had two, and Cowboys had seven, health department records show.

There were about five customers at Diva's about 9:30 p.m. Friday. None was smoking, but two dancers and a bartender were.

About 15 minutes later, a man with a white mustache came in, took an ashtray from a stack of them on the bar and lit a Newport. He talked casually with the bartender.

A bouncer at Diva's patted down customers before they entered the bar and asked them to take everything but the cash out of their pockets and put it on a table. The bouncer did not stop customers who laid out packs of cigarettes and picked them back up before going inside.

People caught smoking by investigators are not cited because the ordinance puts the onus on the businesses, Cobb said.

In a December case at Paradise City on Winchester Road, which Cobb classified as a strip club, someone lit a cigarette, the club was cited "and they accepted the consequences," said attorney Errol Cooper. "I don't recall much more about it than that."

Spearmint Rhino officials could not be reached for comment.

The Curb Bar on Old Paris Pike has had two citations, the Green Lantern bar on West Third Street had one and a supply business called Viking Wholesale on South Forbes Road had one.

Attorneys for the Green Lantern and Viking Wholesale could not be reached for comment.

The citation from the health department for Viking Wholesale said an employee was smoking. The business pleaded guilty and paid a $254 fine.

Snuffing it out

Ellen Hahn, a University of Kentucky College of Nursing professor and director of the Kentucky Center for Smoke-free Policy, has worked on studies about the effect of Lexington's smoking ban on businesses and the community.

"Fewer people smoke," she said. "The air quality inside buildings has improved.

"There was no harm to business whatsoever. The economic health of the hospitality industry goes up and down, but it has nothing to do with the smoke-free laws."

Many businesses have been following the smoking ban, so the health department has scaled back on enforcement, Cobb said. She said 416 after-hours enforcement visits will be conducted in 2012 in addition to 4,800 regulatory inspections.

Enforcement visits are scheduled on Thursdays, Fridays and Saturdays, Cobb said.

Still, Cobb said, it is obvious that the fines are not dissuading the repeat offenders. She said one option would be to evaluate the law to see whether increased penalties are needed.

Richardson, who represents the Curb, said the management at the small bar was "lax" in enforcing the ban.

Meanwhile, he questioned why the businesses and not the smokers bear the brunt of the enforcement.

"It should be the patron, the one who lights up, who suffers some financial penalty," he said.

Vice Mayor Linda Gorton said she thought the ordinance worked well.

"We passed the smoking ban in 2003," she said. "It went all the way to the Kentucky Supreme Court. That took one year. The court upheld the entire ordinance including the citation process.

"My sense is it works well right now. Most workplaces in Fayette County comply with the ban. And the citizens like it."

Should fines be increased for recalcitrant business and club owners?

"In the beginning, some clubs and businesses ignored the ban. They were fined over and over, enough so we got them to comply," Gorton said. "I would not necessarily be opposed to looking at the fines to be sure they are appropriate. But we've been through this for years, and almost everybody complies."

Valarie Honeycutt Spears: (859) 231-3409. Twitter: @vhspears.Josh Kegley: (859) 231-3197. Twitter: @HLpublicsafety.

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