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Smoked Out

As the new restaurant smoking ban takes effect, local restaurants mix it up. Some may absorb the $25 fine and keep on toking.

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This week marks the end of Mike Todd's loyalty to Bandito's Burrito Lounge, a restaurant in the Fan where he could often be found nursing a beer and smoking a cigarette. “I didn't think smoking was a big issue until lately,” Todd said last week, bedecked in a black-and-gold Pittsburgh Steelers sweatshirt and matching cap. “I've been doing it so long I'm afraid if I quit it'll kill me.”

What he isn't afraid to do is drink and smoke at home, which is what he plans to do more often in the wake of the state's new smoking ban, which went into effect Dec. 1. Under the new law, restaurants must either ban smoking altogether or provide a separate, enclosed smoking area in the restaurant with its own ventilation system.

Bandito's owner Sean McClain, like many restaurant owners in the Richmond area, isn't sure what to make of the new law just yet. He's banning smoking outright instead of incurring the costs of constructing a separate smoking room. What he does next will depend on how many Mike Todds he loses.

It also depends on how the law is enforced. McClain, like many restaurant owners in the Richmond area, is weighing the possibility of simply ignoring the law, and paying the relatively miniscule fine that comes with violating the ban: $25.

The fine is small potatoes when compared to smoking bans in some states. In New York, fines begin at a minimum of $200, and an establishment's business license can be revoked if three violations occur within a year.

In Virginia, the repercussions for violating the law appear to be minimal.

“The law isn't everything we hoped for,” says Cathleen Grezisiek, the senior director of government relations for the American Heart Association. “There are some concerns about the law enforcement provisions. … We do fear that a $25 fine will not be an adequate deterrent.”

A.J. Hostetler, a public relations coordinator for the Virginia Department of Health, says the department only has the authority to write up smoking as a violation during routine health inspections.

“Our role is to ensure compliance with the smoking ban,” Hostetler said. “[We] don't have statutory authority to issue summonses.”

That will be up to local law enforcement agencies. The law does not specify any branch of law enforcement that will uphold the ban, does not strictly outline the number of penalties a restaurant could be cited for, and places no restrictions on the number of $25 penalties a restaurant owner can incur. In addition to restaurant owners, individual patrons can be fined $25 if they continue to smoke after receiving a warning. 

How strictly the law is enforced, Hostetler says, is up to local police. 

Richmond Police Department spokesman Gene Lepley says that the department is currently reviewing the law with the Attorney General's Office to determine how exactly to enforce the ban. Ditto for Chesterfield County department, which hasn't determined exactly how the new law will be enforced, says a county spokesman.

Virginia State Police spokeswoman Corinne Geller says the state trooper or police officer called to the scene will have the final say. “It's really up to the discretion of the responder,” she says.

The uncertainty is enough to drive some restaurateurs batty. Bandito's owner McClain says the ban is a business killer. “Me and a lot of people are just disgusted by the whole thing,” he says. “The penalty is a $25 fine. Really? So I let people smoke if it's 10 o'clock and people are starting to come in to drink and all I have to do is pay $25? Then what's the point anyway? Who's not going to pay $25 to have business?”

McClain says that he and others will be hit especially hard since smoking is still allowed in some establishments and worries that smokers may be drawn away from his restaurant to smoker-friendly ones.

“For certain places that don't depend on a bar's business, it wouldn't be such a big deal. It's going to hurt places like mine worse,” McClain says. “It would be fine if it were an absolute law. It's complete and utter ridiculousness that it's not an absolute law.”

McClain says he has the ability to cordon off a smoking area in his restaurant with a separate ventilation system, but most establishments would have to remodel in order to comply with the new law.

At Havana '59, smoking is now banned on the first floor and allowed on the second floor. Manager Je Depew said that the top floor of the Shockoe Bottom Cuban restaurant will be designated as a “cigar and smoking lounge,” and that the switch probably won't affect business.

Can Can Brasserie in Carytown made the transition early.

“When they adopted [the ban] in April, we went ahead and switched,” says owner Chris Ripp, who has seen a 10 percent drop in business at the bar as a result. 

Mike Byrne, owner of Richbrau Brewing Co. in Shockoe Slip, says that the restaurant's first floor is now nonsmoking, and he's considering whether to open up the second floor of his restaurant to smoking patrons. But he's going the populist route. 

“If the customers decide that just by their sheer reaction to it that they don't mind being nonsmoking in the entire place, then that's what we'll do,” Byrne says. “If it turns out that we have a section that we want for smoking, we have that option.”

Staff writer Alex Gray contributed to this story.

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