state ponders how to enforce the smoking ban

Coat of Arms manager Mark Adams was so vexed by the state’s decision to impose a smoking ban in public bars and restaurants that he considered turning the British pub into a private club where smoking would be permitted. Unfortunately for him, that did not prove to be a feasible option. In order to be classified as a private, members-only club, establishments must apply to attain nonprofit status, which would mean completely altering the Coat’s business plan.

Private clubs like Elks Lodges or American Legion posts can continue to allow smoking even after the statewide ban goes into effect on Sept. 17. Such clubs regularly do charity work, hosting fundraisers or offering scholarships for various causes, which make them eligible for nonprofit status. This is not an option for the Coat of Arms.

The only other possible loophole in the smoking ban for the Portsmouth pub on Fleet Street is to offer an outdoor smoking area. Legends, the pool hall located around the corner from the Coat, recently added an outdoor deck where smoking is allowed. But since the Coat of Arms is located on the second floor, adding an outdoor section would mean building a rooftop patio. Since Adams does not own the building, he is not entitled to make such an addition.

So Adams will just have to accept it: the Coat of Arms will soon be a nonsmoking establishment. He will reluctantly shut down the pub for a couple of days before the ban goes into effect, steam-cleaning the rugs and attempting to remove the lingering stench of cigarette butts.

Almost all of the Coat’s employees smoke, as do a large percentage of the pub’s loyal patrons. As he stood behind the bar in the dark and smoky pub on a recent afternoon, Adams noted that state legislators promoted the smoking ban, which Gov. John Lynch signed into law in June, largely on the grounds that it would protect the health of restaurant employees who are exposed to secondhand smoke. “No one came and asked me or our employees what we thought of this,” Adams said. “If this is about our health, why didn’t they come to us?”

Veve Perkins, a bartender at Daniel Street Tavern in Portsmouth, said she also opposes the new legislation. “I kind of disagree,” Perkins said. “I think they should really have people’s choice if they want it or not.” Although Perkins does not personally smoke, she said most of the bar’s customers do, as well as about half of the staff.

Perkins said she was not sure where smokers would go to puff cigarettes once the law goes into effect. They could hang out on the Daniel Street sidewalk by the tavern’s entrance, but that might put them in conflict with the city’s loitering laws. The question of where smokers will satisfy their habits once the ban goes into effect raises the broader question of how the city and state will go about enforcing the new law. 

“We’re not exactly sure how the process is going to take place,” said Mary Ann Cooney, public health director for the N.H. Department of Health and Human Services. It will be incumbent upon the DHHS to enforce the ban, but with no funding attached to the bill, state employees will be hard-pressed to handle enforcement duties on their own.

Nevertheless, Cooney is not exceedingly concerned about problems arising from the ban. “We don’t really anticipate a large problem with this law,” she said. “Of course, it’s going to take some getting used to for the establishments and business owners. However, once the law goes into effect, we’re ready to offer whatever help we can.”

The DHHS is in the process of drafting an outline of rules for monitoring and enforcing the smoking ban. Once it is drafted, the outline will go before a legislative rules committee, which will, ideally, approve it before Sept. 17.

Although Cooney does not yet know how the outline will unfold, law enforcement agencies and local health officials in individual communities will likely be asked to play a role in monitoring for violations. The DHHS does not have employees in every community in the state, so restaurant inspectors and health officers will be asked to help out. “We ask them that, when they note a violation, they contact DHHS,” Cooney said. “We can’t be there, so we would hope that there would be a partnership involved with our state and local officials.”

The DHHS does have a tobacco prevention team that operates on a grant from the Centers for Disease Control. But, Cooney said, enforcement of the smoking ban would be easier if legislators had attached funding to the bill before it was signed into law. “We would have liked to have some funding attached so that we could at least have some staff that their sole responsibility was to provide technical assistance (for enforcement),” she said.

Portsmouth Health Officer Kim McNamara said she is not worried about the smoking ban creating additional responsibilities for city officials. Although McNamara and the health inspector are the only two full-time employees of the city’s Health Department, she does not feel the law will create much of a burden. “As far as the Health Department here in Portsmouth, we really don’t feel like it’s going to be (a burden),” McNamara said. “We respond to environmental health issues, and this would be one more.”

The Health Department typically deals with complaints from customers who are dissatisfied with the quality of a restaurant’s food, or from employees who report unsanitary practices at restaurants, McNamara said. She noted that most restaurant owners are cooperative with health officers, because they stand to lose their food permits if they are convicted of violations. Although the rules are not set in stone, McNamara predicts that local health officers will simply be asked to forward smoking complaints to the DHHS.

Adams worries about how the smoking ban will impact his business. “I’m hopeful, however, that we are established enough that people will still come in, regardless,” he said. Perkins shared that sentiment when speaking about how the smoking ban will impact business at Daniel Street Tavern. “I think if we are loyal to our customers, I’m hoping they’ll still come in,” she said.

Cooney is confident that businesses will be able to adjust to the new legislation. “I know that this is a change, and any change, particularly one that impacts businesses, can be difficult at times,” she said. “Certainly, it takes time for folks to figure out how they’re going to best comply with the law, but I don’t consider it a burden.”