Property Rights: NH Snuffed Out?

snuffed out?

01 March 2006
Larry Clow

So says Mark Adams, bar manager at The Coat of Arms in Portsmouth. Though the word “refuge” calls to mind pristine stretches of wilderness untouched by the greedy hands of man, it’s a fitting description for the smoke-filled bars of New Hampshire, one of the last places where smokers can congregate and feed their nicotine addiction in public, in peace. Smoking is the last truly rebellious thing you can do, a metaphorical middle finger to both anti-smoking crusaders and the Grim Reaper.

That refuge is in danger, though. A legislative committee last week voted 14-3 in support of HB 1177, a measure that would ban smoking in bars and restaurants throughout New Hampshire. And with that kind of strong support, Rep. Sheila Francoeur (R-Hampton), the bill’s sponsor—who has previously opposed smoking bans, mostly out of fear that bar and restaurant patrons would flock to other states that allow smoking—is expecting a favorable turnout when the full House of Representatives votes on the bill, possibly as soon as March 8. All of New Hampshire’s neighbors have banned smoking in bars and restaurants, and Francoeur says it’s time to address this important public health issue.

“I think we as a state have an obligation to provide safe and healthy workplaces for employees, in this case, employees in rest and cocktail lounges,” she says.

Thirteen other states have smoking bans of one kind or another, and Maine, Massachusetts and Vermont have all banned smoking in restaurants and bars. That New Hampshire has remained a holdout in the quest to stamp out smoking is either reflective of the state’s independent nature or an example of old-fashioned Granite State stubbornness, depending on how you feel about the issue. This time, though, the ban may make it through the Legislature because of a lack of any real opposition. For the first time, the New Hampshire Lodging and Restaurant Association has taken a neutral position on the bill, and the only groups to come out strongly against the proposal are staunch smokers and civil libertarians.

While smokers and some restaurant and bar owners are less than happy about the prospect, the lack of a strong, organized opposition, as well as a sympathetic cause to rally behind, means that the days of enjoying a smoke and a pint simultaneously may be numbered.

smoke-free or die

Legislation passed in 2000 required that smoking areas in restaurants be “effectively segregated” with some kind of barrier wall separating non-smoking sections, but bills to fully ban smoking in New Hampshire restaurants and bars have failed before, in 2000 and 2002. Neither attempt received support at the committee level, and the New Hampshire Lodging and Restaurant Association came out against the measure both times.

Locally, Keene and a handful of other communities banned smoking in their municipalities in 2002. The state Supreme Court ruled in 2003 that such a ban was unenforceable because municipal laws cannot be more stringent than state laws. However, the House Municipal and County Government Committee recently supported HB 1558, a bill that would allow individual communities to establish their own smoking regulations.

This year, though, the NHLRA took a neutral stance on the bill after a poll of the organization’s 800 members revealed a fairly even split, according to association president Michelline Dufort.

“We know we have members on both sides of the issue who feel very passionately, and it is not simply divided between (restaurants that allow) smoking and (restaurants that do not),” Dufort says. “We are a member driven organization … and (opinion) is reasonably enough split, so we’re staying neutral for our whole membership base.

Francoeur, primary sponsor of the current bill, thinks it succeeded this time around for that and two other reasons.

“One is that people have become much more aware of how dangerous second-hand smoke is, both for employees and patrons of restaurants and cocktail lounges,” she says. “And there were economic issues there in the past … especially here in border communities, that people would go across the borders and frequent restaurants there. That’s been taken away because all of our neighbors (have gone smoke free).”

Francoeur has opposed previous legislative attempts to ban smoking in bars and restaurants precisely because of these economic reasons. But now that New Hampshire is the last state in New England to permit smoking in restaurants and cocktail lounges, she thinks it’s time to adopt a smoking ban.

There aren’t hard numbers on e how choosing to go smoke free, or choosing to stay smoke-friendly, affects a restaurant’s business. Dufort says she’s heard both from restaurants that have been “really, really hurt” by a decision to go smoke free and businesses that either regained customers or got a whole new customer base.

It’s hard to apply a standard, according to Dufort. Every restaurant is unique, and what works for one bar in central New Hampshire may not work for a pub on the Seacoast.

“We are so consumer driven … and consumers are different from community to community,” she says.

According to Dufort, about 60 percent of the bars and restaurants in the state are voluntarily smoke-free, although that’s not an exact figure. In Portsmouth, 26 establishments do not allow smoking, according to the New Hampshire chapter of the American Lung Association. Dover has a total of 34 smoke-free restaurants, while Rochester has seven.

So why not leave the decision up to individual owners? Francoeur believes that more bars and restaurants would go smoke-free, but only if smoking were banned throughout the state. Now, she says, many are hesitant, fearing that their smoke-friendly competitors would draw away business.

“It’s very hard for the owner of a restaurant to make that decision, if he or she thinks a percentage of customers are smokers,” Francoeur says. Banning smoking in all restaurants will level the playing field and take away that concern for owners.

For Francoeur, it boils down to a public health issue. There’s no reason for the government to regulate other dangerous habits, like chomping down greasy burgers and French fries, because that’s something an individual does to their own detriment, she says. However, smoking in a restaurant can adversely affect other patrons and employees.

“Secondhand smoke is something that someone else does that’s detrimental to my health,” she says. “I’m not telling people (to not) smoke. What this law does is says, ‘Don’t smoke in someone else’s space.’”

fighting the antis

While Francoeur maintains that banning smoking in restaurants and bars is a health issue, others prefer to cast the conflict in a more libertarian light.

“The bans are more about private property rights violations,” says Darlene Brennan, who lives in Maine and is the New England regional director for The Smoker’s Club, Inc., a smoker’s rights Web site (www.smokersclubinc.com). In an e-mail interview with The Wire, Brennan says anti-smoking crusaders have been allowed to tell private businesses what to do.

“This is wrong! The business owner pays taxes on his business. The anti’s should have no legal authority to go in and take over.”

The Smoker’s Club works mostly on the Internet, according to Brennan, and so far has not publicly spoken out against the proposed ban. However, she says, smokers are angry, “mostly at the lawmakers that are allowing the bans and restrictions to go on.”

So far, The Smoker’s Club hasn’t engaged in any actual lobbying—“We don’t have money to lobby,” says president Samantha Phillipe, a North Conway resident—but Phillipe has been encouraging aggravated smokers to write to their representatives and the media and “expose the anti-smoking extremists for what they are … money-hungry people who don’t care who they hurt and what freedoms they take away.”

There’s certainly more than a hunger for clean air behind the various smoking bans and tobacco taxes that more and more states are instituting. According to Brennan, this has left many smokers feeling persecuted, and paying a high price, for what is still a legal activity.

Since 2005, tobacco taxes have increased in 11 states, with an average tax of 89 cents per pack. Rhode Island has the highest tax rate ($2.46 per pack), while South Carolina has the lowest (7 cents per pack). New Hampshire increased its tax from a rate of 52 cents to 80 cents per pack in 2005, bringing in an estimated $87 million in revenue. The state is going after cigarette manufacturers as well. In late February, state Senators Robert Clegg (R-Hudson) and Ted Gatsas (R-Manchester) introduced a bill that would levy a 41-cent tax on every pack of cigarettes a manufacturer sells in the state.

In addition to making smokers poorer, the increasing tax rates are also depriving states of revenue, argues Brennan.

“Smokers have started going elsewhere for cheaper cigarettes,” she says. “Therefore, the states aren’t realizing the big windfall they had hoped with the last tax increase, so they increase the tax on cigarettes again, hoping to continue to feed their pork (projects).”

Brennan is also a believer in the “slippery slope” argument.

“It has already started with overweight people, labels on food, etc.,” she says. “No one will escape government intervention if this is allowed to continue.”

While Brennan and other smoking activists make a fair point about this being an issue of private property rights, there are some other arguments presented by smoker’s rights groups that are far more difficult to take seriously. A section of the Web site titled “Ban Damage” tries to connect a string of rapes, murders and other crimes to bans in New York, Maine, Massachusetts and England, among other places. Another page on the site offers tips on dealing with anti-smoking activists and goes so far as to compare anti-smokers with Nazis. And although that statement would be enough to get you laughed out of any serious debate, Brennan says it’s a fair assessment.

“They say everything goes full circle. Shades of Germany and Hitler from 1941 are what we are facing now with the smoking control, bans and restrictions,” she says. “Hitler touted the same thing about smoking. The anti’s are following in his same footsteps.”

the view from the bar

Mark Adams, at the Coat of Arms in Portsmouth, has a lot to say on the proposed smoking ban. As he glides behind the bar pouring pints on a recent Wednesday afternoon, it seems as though he’s mentally preparing himself for what may be a very long speech.

“Ready? OK. All businesses exist to fill a need of society,” he says. In the restaurant business, this means each individual establishment chooses the food it serves, the beers it pours and the decorations on the walls based on what its customers want. “It’s a business choice,” Adams says, “and it should remain a business choice whether someone can smoke or not.”

The Coat has a reputation as one of the smokiest bars in the region. It’s nicknamed “The Coat of Smoke,” and Adams estimates that “more than half, but less than three-quarters” of the Coat’s patrons light up while having a pint. As the evening wears on, Adams says that it’s rare for anyone, whether they are a smoker or not, to complain about the smoke.

“Basically, people say we’re all adults, we can make our own health choices,” he says.

New Hampshire is the last state in New England to allow smoking in bars and restaurants. It’s also one of the last states in the country without a law requiring motorcyclists to wear helmets or adults to wear seatbelts in cars. Adams thinks leaving those kinds of health choices up to individuals is just fine.

“I don’t want someone dictating to me how to live my life,” he says.

Personal independence aside, for Adams it’s also an issue of economics. People choose which bars and restaurants they go to, and employees choose which bars and restaurants they work at. If they don’t like the smoke, there are plenty of other places to go.

“I don’t like sports bars, therefore, I don’t go to them,” Adams says. “If you don’t like the smoky atmosphere in bars, then don’t go to them.”

Behind the bar, Adams pulls tobacco from a pouch and hand rolls a cigarette. He says he was a “militant non-smoker” until the age of 25, when he tried some quality tobacco.

Adams doesn’t believe that businesses see an increase in clientele after smoking bans go into effect.

“It’s a lie,” he says. “Most places see a one-third drop in business.”

Banning smoking in New Hampshire would be harmful for businesses, he says. Much in the same way shoppers from Maine and Massachusetts flock to the Granite State to avoid sales taxes, Adams says people from other states are driving to New Hampshire to smoke while they drink.

“I hear that all the time on the weekends when I card people,” he says. “‘Oh, this is New Hampshire, we can smoke here.’”

And if the government is going to dictate health decisions, Adams thinks they should go straight to banning cigarettes altogether.

“We know this shit kills people, tens of thousands of people every year, but we won’t ban this” because it’s a tax for the government, he says.

Most bars that allow smoking are working class establishments, Adams notes. Upscale venues don’t usually allow smoking. But he doesn’t see the regulations against smokers as a class issue.

That’s not to say he wants smoking to be allowed everywhere, all the time. In fact, he supports a lot of no-smoking policies.

“I think smoking bans up to this point have been good. I don’t want cigarette smoke at the mall. But a place that serves alcohol should allow smoking.”

As for restaurants, it depends on the dining experience for Adams. Smoking at a swank restaurant would interfere with the flavor of the high-priced entrees, he says. But if you’re a burger-and-fries joint, a cigarette could be acceptable.

“I’ll go over to Pesce Blue and have my dinner, and then I’ll go over to the pub for a pint and a smoke,” Adams says.

The early evening crowd at the Coat seems to agree with Adams.

“I think it’s up to the establishment,” says Chuck Palmer. “If it’s good for business, they’ll do it, and if not, they won’t.”

Palmer, a non-smoker, is sitting next to Thomas Remington and Chris Frazee, both of whom are taking drags from post-meal cigarettes.

“It’s nice to have the option, if you’re going to go to the pub, to have a pint and a cigarette,” Remington says. “Especially up here, where it’s winter eight months out of the year, if you go outside to smoke—”

“You might not come back,” Palmer says, smiling.

If a ban goes into effect, Frazee thinks business owners should have the option of allowing smoking at their establishments by paying a small fee to the state.

And while Frazee agrees that smoking is a basic public health issue, banning smoking in restaurants could have a “slippery slope” effect.

“Once we start taking health (decisions) from the public,” everything, from the volume of music to the brightness of lighting in restaurants, is up for review. “Everyone has a sensitivity to something,” Frazee says.

too damn smoky

Some Seacoast establishments have already taken the plunge into no-smoking territory, and the effects have been positive. When The Stone Church in Newmarket re-opened in 2004, the new owners made the decision to go smoke free.

Peter Hamelin, one of the owners, says he decided to go smoke free for “personal, business and economic reasons.”

“I realized I was going to be working up here on a nightly basis and I personally didn’t want to put my own health at risk in an environment with second hand smoke,” he says. In addition, Hamelin says that smoke damaged the walls, furniture and sound equipment of the Church during its previous incarnations.

“This place had a reputation of being really smoky, and I think that turned a lot of people away from coming to see shows here,” he says.

Ultimately, going smoke free has brought in a more diverse audience, according to Hamelin, and he’s only received a few complaints from smokers. However, like Adams, Hamelin believes it should be up to each individual owner to decide who can light up.

“I believe the free market system is working and I believe as people become more educated … they should make their own choices. If more of my customers want to be in a smoke free environment than don’t, I’ll do that for economic reasons, as well as health reasons. But I don’t believe the state should be meddling.”

Stone Church patrons don’t seem to mind the change. Janet Danforth and Michelle LaBrecque were huddled outside the front door of the Church on Sunday, Feb. 26, smoking cigarettes during the John Hammond show. In the winter, it takes serious dedication to go out and smoke—that night, it was only about 13 degrees outside and a vicious wind was blowing.

While it would be nice to smoke inside, Danforth says, she respects owners’ decisions to go no-smoking and doesn’t mind having to go outside to smoke.

LaBrecque, a habitue of The Stone Church, says it should the owner and not the state who decides who can smoke. But smoking bans won’t stop her from going out, she says.

“When it comes down to music, it doesn’t stop me. I’ll just cut down on my smoking.”

At The Barley Pub in Dover, bartender Corey Cramer jokes that it’s the “second smokiest bar in the Seacoast” compared to The Coat. Like fellow suds slinger Adams, Cramer is a smoker and beer connoisseur; however, unlike Adams, Cramer wouldn’t mind if a smoking ban took effect.

“I would welcome it,” he says. Cramer understands where advocates of the ban are coming from. “I don’t smoke inside my own house,” he says.

On a Wednesday night around 8 p.m., most of the 25 or so people in The Barley Pub are smoking, including Cramer. He estimates that about 60 percent of the bar’s patrons are smokers. Sitting at the bar is Rob Boyk. What does he think of the smoking ban?

“Let me start with this,” he says, taking a drag from his cigarette.

“I think it should be up to individual bars, because at this point, you’re three years above the age of an adult to get into a bar, (and you can) make adult choices,” he says. That’s not to say he’s an advocate for smoking.

“It’s not a healthy thing,” he says. “I’ve got four dead grandparents from lung cancer.”

So why does he keep doing it?

“It’s a bar habit. I’ll sit at home all day and won’t have a cigarette. But I walk in here….”

Even so, there’s already a kind of smoking ban in effect at The Barley Pub: a prohibition from 4 to 7 p.m. has actually helped out after-work business, but Cramer notes that the afternoon crowd is older and the evening crowd is younger, which might account for the increase in traffic. Such was the case during a recent Saturday evening, when a mostly younger crowd packed the pub during a snowstorm. With the happy hour prohibition in effect and the snow flying outside, only a few smokers made the trek outdoors to have a cigarette. But once 7 o’clock rolled around and ashtrays were placed throughout the bar, it seemed as though everyone in the pub lit a smoke in unison.

Barley Pub owner Scott Mason nixed smoking during happy hour after the bar underwent renovations in June 2005.

“I felt like I was losing some business due to the smoke at the pub, and the business I was losing were people that were more inclined to be in and out of there before 7 or 8 o’clock. (People) don’t want their clothes to stink, they don’t want to have to get their clothes dry-cleaned,” he says. And in 2004, Mason installed a new ventilation system in the bar because “it was just too damn smoky in there.”

But Mason is hesitant to go totally smoke-free because such a large percentage of his patrons are smokers. He’s worried about alienating them and says that a full-time ban would have a negative effect on business.. He says he’s torn about the proposed legislation.

“I’m not a big fan of the government telling me how to run my business … but personally, I feel like I’m just as likely to suffer the negative health effects of smoking as smokers.” But, he says, “I’m really in favor of the ban. I think if everyone goes non-smoking, it’s an even playing field.”

If the New Hampshire legislature does pass the smoking ban, the Granite State will still be in a minority of states that prohibit smoking in bars and restaurants. But if the measure fails, New Hampshire would still be in a minority of states with fairly lax indoor air quality and smoking regulations. The outcome is cloudy, and until then, bar and restaurant patrons should smoke ’em if they’ve got ’em while they have the chance.