10 years after it became law, Fayette County's smoking ban is gaining acceptance

mmeehan1@herald-leader.comApril 26, 2014 


    This is the first in an occasional series about the changing smoking culture in Kentucky. If you have thoughts about other stories we should tell, contact Mary Meehan at (859) 231-3261 or mmeehan1@herald-leader.com.

A dark-haired guy, looking like an extra from a low-rent version of The Sopranos, leans on the porch railing outside Divas Gentleman's Club, inhaling the mist of an e-cigarette.

He squints suspiciously as a white SUV turns in to the mostly empty parking lot off Russell Cave Road.

It's 7 p.m. on a Thursday. Taking one last, long draw as he sees the vehicle's Lexington Fayette County Health Department logo, the smoker cups his e-cig and ducks inside the club.

"He's seen us," health inspector Skip Castleman said, unbuckling his seat belt for a quick exit as the vehicle eases to a stop.

Castleman and his partner, Russ Cantrell, are spending this Thursday night, like many Thursday nights over the years, going to strip clubs and bars looking for people operating on the wrong side of the law: smokers.

Lexington's smoking ordinance, which bans smoking in most indoor public spaces, doesn't specify that smokers be caught in the act. But that has become the default standard since the ban went into effect 10 years ago.

Prosecutors at the county attorney's office told inspectors that it's easier to defend the citations if there is absolute proof of smoking. They can see ashtrays. They can see smoke. They can smell menthol in the air. None of those count.

The bar owners know the drill. Inspectors know they know. And it has become a bit of a game.

Statewide opposition

In Lexington, these surprise inspections are among the few public traces of what was once significant opposition to a Fayette County smoking ban. However, Ellen Hahn, director of the Kentucky Center for Smoke Free Policy, said opposition is thriving across the state.

Lexington officials took a lead in the debate by becoming the first place in Kentucky, a state with a long, proud history of growing tobacco, to regulate where people could light up.

In fact, in 2004, only a few states, notably California, Arizona and New York, regulated smoking in public spaces, Hahn said. There were almost no bans in the South or Midwest. When Hahn first brought up the ban during a 15-minute presentation to some Lexington business leaders in 2001, she waited to be laughed out of the room.

But they didn't laugh.

Dr. David Stevens championed the measure during his tenure on the Urban County Council. He said in a recent interview that he always expected it to pass.

"I wouldn't have gotten behind it if I didn't think it would," he said.

Others were less sure. After the initial steps, the effort took three years and plenty of legal wrangling. Ultimately, a decision by the Kentucky Supreme Court allowed enforcement to begin on April 27, 2004.

Stevens remembers getting a call from a reporter in London the next day.

"I told them I thought they could probably do something with a smoking ban in Laurel County," he said.

The reporter clarified that he was phoning from London, England.

"It made the news around the world because Lexington, Kentucky, had the reputation of being the belt buckle in the burley belt," Stevens said with a chuckle.

Enforcement continues

Although the lighted stages at Divas clearly show the hazy proof of smoke, the inspectors don't see any smoking in progress, so no citation is issued. Still, as Cantrell and Castleman walk back to the car, two guys dressed in black join the smoking man, who's back on the deck. They cross their arms and stand stiffly as they watch the health department SUV pull away.

The next stop is another strip club, Cowboy's, on another stretch of Russell Cave Road. To gain access to this club, cars have to drive around the back of a block-long building. To elude detection by the club's management, Cantrell parks the health department's SUV in front of a nearby liquor store.

Cantrell said clubs typically watch for inspectors. The inspectors try to blend in, wearing jeans and light jackets like regular guys out for some fun, but management can recognize them because of the frequency of their visits and because only 14 rotate the inspector shifts.

"It's just whoever is quicker on the draw," Castleman said. "They can get the word out that we are in the building; they will say 'we are a non-smoking establishment.'" Or the deejay might interrupt the music to make an impromptu public service announcement. Or the manager might hustle through the bar, reminding people the joint is smoke-free.

But it's up to the patrons to listen.

At this stop, despite the longish walk to the front door, the health department guys get the advantage. They issue a citation.

"The guy at the bar either didn't hear them or just kept smoking because he didn't care," Castleman said.

The fines are $100 for the first offense, $250 for the second offense, $500 for the third. The number of citations peaked in 2005 at 419. By 2012, the number had dipped to 22.

Anger plus alcohol

Plenty of people simply ignored the smoking ban in the early years. Others passionately defended their right to smoke.

Although the health department hired contract inspectors in the beginning, and later used its own inspectors, Cantrell and Castleman have been on this beat long enough to remember plenty of challenging nights. Cantrell interned at the health department before joining full time in 2007. Castleman joined in 2008.

There is something about smoking and alcohol that compounds the problem. Cantrell said in his experience, drinkers, especially if they have already downed a few, don't like to be: a) told what do to; and/or b) told they can't smoke.

There were taunts. Cantrell, who is black, said he has heard plenty of racial slurs. Sometimes the insults were quick and creative.

"I had one guy tell me that I was running for office, he wouldn't vote for me," Castleman said with a laugh.

They can remember only one real moment of fear. Some bouncers followed them through a parking lot to their car. Castleman was concerned enough to hustle.

"I ain't no big guy, and they didn't take kindly to us going up in there," he said.

The ordinance itself brought out plenty of opposition.

"Our national partners call Lexington the shot heard 'round the world," Hahn said. Lexington eased into the ordinance in part because the opposition didn't feel the need to organize since the chances it would pass seemed so slim, she said.

Shortly after Lexington's ban was approved, she said, some state lawmakers tried to counteract the measure with a bill that would require "smoking permitted" signs outside establishments so they could circumvent the ban. Those measures didn't pass. Efforts to create a statewide ordinance continue to stall.

The new normal

The inspectors' next few stops are uneventful: a pool hall, a bowling alley. Smoking men sit on benches outside the doors of each place. Technically, the smokers could be violating the "reasonable distance" from the doorway specified in the Lexington ordinance. But the inspectors leave them alone. At least the businesses are making an effort to keep smokers outside, Castleman said.

As the smoking ban in Lexington has aged, the challenges have lessened. In many cases, Hahn said, the ban has been self-enforcing. Patrons at restaurants complain to management about smokers, or bar employees take it upon themselves to keep people from lighting up. Gradually, she said, smoking just isn't accepted or expected anymore.

Non-smoking in most places has become the "new normal."

There are now only a handful of businesses that receive citations. Most are small bars and strip clubs. The frequent offenders are visited by inspectors on a rotating basis. The health department also responds to complaints. But those are rare, Castleman said.

At first, the health inspector teams went out several times a week. That changed to once a week. Now they go out twice a month. That could change if the need continues to wane. Castleman said he hopes that all places will go completely smoke free, but he's not sure that will happen.

The cost of doing business

From his interactions with the managers, Castleman said, he thinks some of them see risking a citation as a cost of doing business. Paying the fine falls to the establishment, not the smoker.

Tucker Richardson is a Lexington attorney who represents Divas, Cowboys and Platinum Plus. He estimates that all three clubs get about 12 citations a year.

Richardson doesn't suspect a concerted effort to skirt the law. But, he said, there are challenges to operating a non-smoking strip club. Sometimes, people from out of town don't realize that a place is smoke-free. Other times, people are aware of the ban but smoke anyway.

In truth, Richardson said, "we are trying to split the baby" by abiding by the law and making customers happy. Lexington's ordinance said businesses can ask smoking patrons to leave. But that's not the answer, he said.

"We don't want to throw people out of the club," Richardson said. "We spend a lot on advertising to get them into the club."

Typically, his clients pay the fine and move on. There is no longer animosity, he said. Club managers realize that the health inspectors are just doing their job.

Each citation issued on that recent Thursday noted that ash trays could be found at tables throughout each establishment.

Not their favorite

The inspectors move to another bar, no problems, and on to Platinum Plus. Cantrell said the club extended its front entrance, adding an alcove of sorts that he suspects was designed to give management a few extra minutes before the smoking inspectors can enter the main room.

It is topless bull-riding night. There is a $2 special on Pabst Blue Ribbon and a $3 special on Jack Daniel's. And there are smokers.

A tall, bald manager dressed impeccably in a suit follows Cantrell and Castleman as they leave his club, his citation in hand.

He chats with the inspectors briefly, asking for a slight correction. Two dancers who were seen smoking? He wants the citation to stipulate that the smokers were not employees but contract workers. Castleman is happy to oblige, changing "employees" to "entertainers" in the paperwork.

The women had looked at the entering inspectors and had just kept smoking.

Both inspectors like their work, which includes inspecting restaurants, mobile home parks, swimming pools, motels and hotels — any variety of public places — to ensure health and safety. They take pride in their jobs.

But this isn't their favorite part of the job. Both are married and, although it is not a big deal, wives, even in-laws, are not thrilled to have gentlemen's clubs on a list of places that family members frequent, even if it is for work.

For that reason, Castleman is happy to talk about his work, but to minimize that fallout, he prefers not to have his picture taken for publication. Both men say they just try to keep their eyes where they should be: looking for smokers. And when they pull up to the last stop of the night, Spearmint Rhino, they find a few more.

It takes considerably longer to drive out to the club on Athens-Boonesboro Road than it takes to walk in, spy a guy smoking at a bar and write a citation. (The corporate owner of Spearmint Rhino was contacted by the Herald-Leader but did not respond for comment.)

Even if only a few businesses are routinely in violation, Cantrell and Castleman say the enforcement effort is worth it. If they and the other inspectors weren't out on Thursdays, maybe the smoking rate would rise again. If that happened, people's health would suffer.

Better for your health

Health was the argument Hahn made 10 years ago and makes today.

And now, unlike the days before the ban, she has data specific to Kentucky to support her case. There was a 22 percent decline in asthma-related visits to emergency rooms in Fayette County in 2005, the year after the smoking ban went into effect. There were 16,500 fewer smokers in Fayette County 20 months after the ban went into effect. Nicotine exposure, as measured through an analysis of workers' hair before and after the ban, also was dramatically reduced.

There are now smoking bans in 12 Kentucky counties, including Fayette and Jefferson. There are smoking bans in 26 cities. Almost all the city bans are enacted in county seats, leaving rural areas in those counties untouched by regulation.

In Scott County, for example, smoking in public places is limited in Georgetown but people can light up in a restaurant outside the city limits. In Fayette County, the once hotly debated smoking ban is now mostly cold ash.

Hahn said overall resistance to the regulation of smoking in Kentucky has hardened, not softened, since 2004. More money is being spent to challenge smoking ordinances, and the opposition is more organized, she said.

The argument against regulation is generally presented through well-financed third-party organizations not directly tied to cigarette producers or farmers, she said.

The Kentucky Supreme Court heard arguments over a challenge to a smoking ordinance in Bullitt County last month. A decision hasn't been reached.

The Fayette County Board of Health endorsed a statewide smoking ban that failed to get traction in the legislature. The health board's chairman, Scott White, said Lexington's ban continues to be "a true accomplishment in a tobacco state."

He said the board of health will continue to advocate for a statewide ban. Smoking, he said, "is a major public health issue and will continue to be."

And twice a month, inspectors like Castleman and Cantrell will hit the road.

Mary Meehan: (859) 231-3261. Twitter: @bgmoms. Blog: BluegrassMoms.com.

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