Darwin’s Theory Update
Darwin’s has the wrong smoking theory, city says
ILLEGAL: Its sidewalk shelter is said to violate the law against pub puffing.
September 10, 2007
By BETH BRAGG, bbragg@adn.com
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All Darwin Biwer wanted was a place outside his bar where customers can smoke without the hassle of wind, rain and snow. Now the downtown bar owner faces a hassle of his own.
By BETH BRAGG, bbragg@adn.com
?
All Darwin Biwer wanted was a place outside his bar where customers can smoke without the hassle of wind, rain and snow. Now the downtown bar owner faces a hassle of his own.
The open-air smoking shelter he built at Darwin’s Theory has led to a confrontation with the city over how to accommodate smokers without sidestepping the spirit of the new smoking ban.
The shelter, bolted to the sidewalk in front of the G Street bar, creeps into the city right of way and, more importantly, violates the intent of the smoking ordinance, said Jack Frost, the city’s chief code enforcer.
Biwer faces a $300-a-day fine if he doesn’t remove the shelter, which he said cost about $2,000 to build. It includes two plastic glass walls — one of which keeps smoke from drifting into the bar — a wooden bench decorated with bear-paw tracks, an overhead electric heater and two tall ashtrays. Even nonsmokers use it from time to time, Biwer said.
But the city doesn’t want similar shelters popping up throughout downtown, Frost said: “We’re trying to get ahead of the problem.”
Biwer sees it differently.
“Here they want them to not smoke in bars, so they go outside and now, boom! — they don’t want them to do that either,” he said.
The ban on smoking in Anchorage bars, which voters approved by a 2-to-1 margin, kicked in July 1. Since then, smokers have had to leave bars and park themselves at least 5 feet from the building to light up.
The Darwin’s shelter attracted official attention this summer when Biwer put a temporary portable potty in the alley while he remodeled his bathrooms. A complaint brought city inspectors to the bar, where they discovered a number of right-of-way encroachments.
Besides the shelter, the sidewalk in front of the bar includes a bike rack, a handicap-access ramp and two signs — all of which are violations, Frost said. Except for the shelter, all have been in place for years.
Biwer applied for a special permit and was granted one — for everything but the smoking shelter. That’s because the shelter is bolted to the sidewalk and could create maintenance issues for the city, Frost said.
But that’s not the real issue, he acknowledged.
“The reason for not permitting the shelter is it violates the intent of the smoking ordinance,” Frost said. “The intent is to keep the public from having to pass through smoke to get to these areas.”
Frost said he reviewed Biwer’s permit request, the smoking ordinance and the health department’s policy on the prohibition of smoking in public places before making his decision.
He sent his interpretation to city manager Denis LeBlanc, who agreed. So does Assemblyman Dick Traini, who sponsored the ordinance.
“I think it’s the right approach,” he said.
But Biwer said the city’s position makes no sense and is actually contrary to the ban.
“They forced (people) to smoke outside,” he said, “and now they don’t want them to smoke outside.”
Biwer is appealing Frost’s ruling and expects he will be allowed to keep the shelter until the appeal is decided.
