Honolulu Weekly

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Though public debate over the smoking ban has quieted since it first went into effect more than seven months ago, the dispute between the two opposing factions–those for the ban and those against–continues. Name calling has occurred, fines have been handed out, the law has been flaunted and in one case a restraining order has been filed. But after all the smoke and noise clears, the one thing that could decide the fate of the ban–either it stays in place or it is repealed–is a matter of simple economics. For that reason both sides are eagerly awaiting June 30.

On that day, the liquor permits for every dispenser license expires. When reapplying, establishments will have to give the state Liquor Commission their sales records from the previous year. A significant drop in sales would support the arguments of the pro-smoking faction, while a steady rate or an increase strengthens the position of nonsmoking advocates.

George Massengale, policy and advocacy director for the Coalition for a Tobacco-free Hawai’i, awaits the figures. ‘Show me the data,’ he says. ‘My understanding is throughout the state, revenue is up.’

Massengale, for one, doesn’t put much stock in the complaints coming from bar owners who say the ban is bad for business. ‘I prefer to deal with facts and figures,’ the policy director says. ‘I was trained as an attorney. So you go to court, you bring your evidence into court, otherwise they call it hearsay.’

Even if bar owners do show a significant drop in revenue, however, Massengale says that chances are his organization will not change its position. ‘Businesses open all the time and business close all the time,’ he says. ‘Especially in the hospitality industry. What’s to say it’s because of the smoking law, or what’s to say that it’s bad management?’

Smoking buddies

After the ban took effect on Nov. 16, 2006, the opposition was almost immediate, and no one was louder than Dave ‘Kawika’ Crowley and Jolyn Tenn. Working together, they co-founded two vocal pro-smoking groups; the Hawai’i Smokers Alliance, and The Smoke Vote.

Crowley has lived in Hawai’i for 48 of his 58 years. He has had his hands in almost as many ventures as years on the island, going from advertising consultant to songwriter. (He claims he co-wrote ‘Hawai’i ‘78.’) When the ban passed, he started trolling the bars, gathering their reaction, most of which he says were negative. That’s when he first heard of Jolyn Tenn.

Tenn had already garnered a reputation in just a few weeks after the ban as ‘The Smoker Lady,’ armed with an armful of petitions urging a repeal of the law. A fourth generation smoker and Hawai’i resident, Tenn says she was inspired to act against the ban after hearing the story of a bar employee who was laid off because of the detrimental economic aspects of the ban.

The pair, Tenn and Crowley, both of whom smoke but neither of whom owns a bar, joined forces and began canvassing the State Capitol with what they termed ‘the daily drop-off’: mass Xeroxed newsletters reporting on the number of signatures collected by citizens upset with the ban and legislators who were allied or, at the very least, sympathetic to their cause.

‘With Jolyn and myself and then with the alliance we built with Fred Remington of the Hawai’i Bar Owners Association, we knew we had a coalition that could get something done,’ says Crowley. ‘Before, we were like three different ships that could have easily passed in the night, even though we have the same goal and destination.’

While initial efforts were built upon simply defying the ban and targeting lawmakers, their efforts, some believe, turned ugly when they began distributing posters of Deborah Zysman, the chairperson of the Coalition for a Tobacco Free Hawai’i, a non-profit agency that was instrumental in getting the ban passed. The printouts titled ‘Hawai’i’s Most Unwanted’ featured unflattering photos of Zysman and accused her of being a carpetbagger brought in by the American Cancer Society. The poster also listed her ‘inimical acts’–among them, a ‘disdain for local culture’ and ’skulking around watering holes.’

A letter from Crowley to the state Department of Health further increased tension. In the letter, Crowley notes he has a background in boxing and a history of fighting. Responding to a statement Zysman made to the media calling bar owners and patrons who continue to smoke in defiance of the ban ’scofflaws,’ Crowley says in the letter, ‘She’ll be sorry for insulting the people of Hawai’i.’

In March, Zysman sought and received a restraining order against Crowley. ‘The reason I got the restraining order was that he sent a somewhat disturbing mail making direct threats saying I was going to pay for things I said,’ she says adding that it made sense to take steps to protect herself and her coworkers. ‘We never went to the press with it at all and had no intention to. But in this day and age, I think if you have someone saying that people will pay for things they’ve said in the press or at the Legislature, well, we just want to be safe.’

Asked if she has seen the wanted poster, she grows silent for a moment. ‘I have,’ she says. ‘We don’t operate that wayÖWe’re doing our best to bring down the smoking rates in this state both for adults and for kids. That’s what’s important to us. It’s not ‘us against them’ at all. This is for the benefit of everyone.’

Crowley insists the restraining order was a waste of taxpayer’s money. He underwent a mediated session with Zysman, and ultimately agreed not to come near her home, work or person. Zysman’s very job, of course, requires her to make repeated visits to the State Capitol, which Crowley claims, hinders his own lobbying efforts.

‘Why would I jeopardize this movement that I co-captain with all the work and exposure we’ve received from the international press,’ he asks, ‘by doing something as stupid as threatening my arch-enemy?’

Words like ‘arch-enemy’ might imply a conjecture of threat for some, but Crowley insists it’s simply part of his personality, claiming that he is an avid writer and that he writes–and speaks–colorfully. But others–even ideological supporters–aren’t as forgiving.

Stuck in the middle

On the south side of the island, there is a small, nondescript watering hole, the kind that caters to a loyal clientele. It’s the antithesis of a popular hotspot, opening quietly at 6am every morning and staying that way until 2am. The small, dimly lit, cluttered bar doesn’t offer anything out of the ordinary; there is no live entertainment, no dancing, no superfluous theme-based drink specials. Located out-of-sight at the end of a small, dead-end street, they’ve even eliminated the chance of random drop-ins who might wander in. Simply put, their patrons are there specifically because they choose to be.

And the people who are there, by and large, are smokers. When the ban was first implemented, they complied, removing the ashtrays and directing people outside. But after four months, the morning shift bartender had had enough.

‘The place was like a morgue,’ says Cliff, who agreed to talk to us on condition of anonymity. The reason: he allows his customers to routinely break the law. The bar’s owner also requested that his establishment remain nameless for the same reason.

Cliff is one of the few people involved in the fracas with a personal stake in the outcome, and he claims his business dropped by at least 75 percent. ‘After that, I begged the owner to let my customers smoke,’ he says. ‘I even offered to pay for any fine we might get out of my own pocket.’

Eventually the owner capitulated. Cliff brought the ashtrays out for the first time in February. ‘It wasn’t an immediate change,’ he says, ‘but it did start picking up. After two weeks I was up–not back up to original levels–but I was the first person to break one thousand [dollars] in the till since the ban passed.’

It wasn’t long before other bartenders followed his example.

‘Even now, it’s voluntary,’ Cliff says. ‘If a bartender is worried, or doesn’t want to deal with it, they can put the ashtrays away and make people go outside. Our customers know we’re taking a risk.’

Still, he knows he’s breaking a law, jeopardizing both his customers and his place of employment. And he doesn’t want his actions championed by the pro-smoking forces.

‘I’m not the Rosa Parks of the smoking movement,’ he says quietly. ‘I’m doing this simply as a matter of survival.’

Not to say he hasn’t taken sides. Even before the smoking ban took effect, Cliff wrote letters to the governor and his representatives. He even stated his case in front of the Legislature. But the tactics of Crowley and Tenn leave a sour taste in his mouth.

‘That guy [Crowley] is doing more harm than good,’ he says. ‘He’s taking a matter that should be fairly cut and dried–that this law is restricting freedom of choice and causing undue economic hardships on the people that it pretends to defend–and turning it into personal attacks and name calling.’

But even though he disregards the ban, Cliff says business is still down, and the owner agrees. In a telephone call, the owner, who also wished to remain anonymous, told the Weekly that the lower tourism rate, which in turn affects his regular customers, many of whom rely on tourists to afford to go out, has caused a general drop in sales. ‘But,’ he notes, ‘if it weren’t for allowing people to smoke, we’d be in real trouble.’

Lance Gomes, owner of Pigskins Sports Bar on Kapi’olani Boulevard, isn’t as reticent about his defiance. After obeying the ordinance for two months and watching his sales drop by 30 to 50 percent, he claims, Gomes publicly stated in a meeting of concerned bar owners and to the Weekly (’Bar owners rally,’ 1/24) that smoking would be allowed in his establishment.

Since that announcement, Gomes has been interviewed by several media outlets, letting people film and photograph patrons smoking without restriction. Five months later, he’s still willing to go on record.

‘I’m ready to be the guinea pig,’ Gomes says. ‘If they want to try and shut me down, I’m ready to take it to court.’

Though Gomes says business still hasn’t reached pre-ban levels, he says the publicity has ultimately helped. ‘I have people who come here specifically because they know I’ll let them smoke. I have regulars that come all the time from Hawai’i Kai. And even then, they’re not all smokers. The smokers are probably about 70 to 80 percent, but the rest come here because they want to support me.’

What’s interesting about Gomes’ defiance is the angle of protecting his employees. ‘My entire staff is smokers,’ he says. ‘You know who works here and doesn’t smoke?’

He pauses for a moment, then draws his thumb toward his chest.

‘Me,’ he says with a smirk.

‘You should let the owners decide,’ Gomes continues. ‘Put a sign outside that warns people if smoking is allowed, and that you enter at your own risk. This is all about people’s rights.’

Lines in the sand of the ashcan

‘It’s very simple,’ says Massengale of the Coalition for a Tobacco-free Hawai’i, ‘You don’t have the right to smoke.’

Massengale is referring to a 2006 report by the Surgeon General, which outlines constitutional protections for people of race, religious affiliation or people with disabilities. ‘Smokers aren’t in there,’ he says simply.

However, employees are protected, he says. ‘All employees are entitled to the same protection from the impact of smoking and second hand smoke that other people enjoy,’ he says. ‘Our position is to protect the health of workers. There are almost 70,000 hospitality workers that weren’t covered by any kind of protection.’

Still, some of the very people the law is designed to protect claim the coalition is doing more bad then good.

‘Protecting me?’ scoffs Cliff. ‘Look, I know that anytime I work here, I can get shot, I can get stabbed, I can get beat up. But that’s not what I need protection from. Because of this ban, I’m being hindered. I’m barely scraping by. That’s what’s affecting my health. Before the ban, I paid my bills and my rent and still put money in the bank. Now, that money has been run through, because I can’t keep up.’

Crowly and Tenn insist that Cliff’s problem is not unique and say his only real solution is open resistance. ‘Defy, defy, defy,’ Crowley says, pounding his palm for emphasis with each word. ‘Right now we have 30 to 40 bars defying the ban, some openly, others more clandestine. When the next legislative [session] begins, we expect to have more than 50 bars and establishments openly defying this draconian law.’

Zysman, however, says it’s a simple matter of time and acceptance. ‘Look at the restaurants,’ she says, ‘when they first introduced restrictions, people said it would be the end of the restaurant industry, and yet here we are and they’re still thriving.

‘A restaurant is a different animal,’ counters Cliff. ‘They’re designed to get people in and out as quickly as possible. We want to keep you here.’

Regardless, what Cliff insists is the fundamental flaw with the ban is that employees need to be protected, saying that at 37 years-old, he doesn’t need a babysitter. ‘I knew where I was getting a job when I started, and I knew what I was getting into. And that includes the possible hazards of being around cigarette smoke. If I was worried about it, I’d work somewhere else.’

Massengale says that’s a common but bogus argument for detractors. ‘There are a lot of people who don’t really have a choice,’ he says. ‘There’s a reason why they’re in that particular job. Pragmatically, look at the educational levels of people who work as cocktail waitresses or bartenders. I think generally, they’re not going to be able to say, ‘Oh, let me polish up my resume and I’m gonna go put it out in the market, and I’ll be able to get a job in three weeks over at the Hilton Hawaiian village.’ There’s different stratum within society.’

The smoking police

Since the smoking restrictions began, only one fine was issued for smoking inside a drinking establishment, and that was to 71-year-old Floreen Mayeda inside of Club Ke Kai’s Lounge, located in Chinatown. Mayeda pled guilty and paid a $25 fine. No ticket or fine was issued to the establishment.

‘It’s a cash cow for the state’ Tenn says. ‘The whole law was passed with the idea that you’re protecting workers, but they’re not fining establishments, they’re just collecting money from people on the street. Where’s the protection?’

When the ban first went into effect, the state Department of Health was designated to handle complaints. Julian Lipsher, program director for Hawai’i State Department of Health’s Tobacco Prevention & Education Program, said just prior to the implementation of the ban that the department had six workers who would respond and those wishing to file a complaint were directed to telephone numbers directly connected to their offices. More recently, however, the website was updated, directing the public to call 911 when they saw violations. But police response has been slow, if at all.

‘It’s a matter of priorities,’ says one officer who spoke on the condition of anonymity. ‘Let’s say I get three calls. One is for a violent altercation in a public area. Another is for a home burglary. The last one is for somebody complaining about somebody smoking a cigarette in a bar. Which one should I respond to first? Which one would you want me to respond to?’

Brandon Stone, management analyst for the Honolulu Police Department agrees. ‘We respond to all complaints, but we’re responding to emergencies. There are categories, and out of the probably 2,000 calls we receive daily, almost none of those are for smoking. I’d like to think we’re not getting calls, because people are complying with the law.’

Compounding the problems of enforcement, complaints to the police require that the person lodging the complaint stay at the establishment until police arrive, and then be willing to identify people violating the smoking ordinance in a face to face situation, which few are willing to do.

Under the wording of the law, bartenders and managers are not required to enforce the ban, but merely inform people that smoking on the premises is prohibited. This wording has caused several establishments to follow those rules, telling a smoker that his actions are illegal yet still providing him with an ashtray.

‘We’re dealing with a small segment that is willingly defying the law, and at some point, there will be consequences,’ Lipsher says. ‘As we hear more and more about the benefits of the law, we’ll eventually see full compliance across the board.’

Since the ban, Lipsher says his department has issued 274 warning letters for businesses who have received a complaint from the general public that their establishments were in violation of the law. And while he admits that police may be reluctant to issue citations or respond, Lipsher says changes to the enforcement protocol are in motion, which might eventually transfer the power of citations to his department.

‘At some point there will be enforcement,’ he says.