Sunday, April 16 2000

* Does Tucson's smoking ban unfairly single out restaurants?

* Should other public places such as bars and hotels also be covered?

* Should businesses that lose money be granted exemptions?

* Should the city instead require that restaurants have separately ventilated smoking and non-smoking sections?

* Should smoking be viewed as a freedom-of-choice issue that should not be regulated by local governments?

Most people agree smoking can be deadly. But not everyone agrees on how - or if - tobacco use should be regulated. That fundamental difference is at the heart of an ongoing debate over a city law that bans smoking in restaurants. Should the law be enforced or rescinded?

In the six months since the law banning smoking in Tucson's 1,500 restaurants went into effect on Oct. 1, a dispute has escalated in Tucson over whether public health cncerns outweigh a business owner's right to earn a living.

To backers of the law, the issue is simple: Tobacco use is a serious health risk for those who smoke and for those who inhale it.

For that reason alone, they say it should not be allowed in public places, especially in restaurants, where people who choose not to smoke are put at risk.

They back up their belief with statistics from the American Heart Association that show secondhand smoke is the third leading cause of preventable death.

To opponents, the law - and its effects - are not as clearly defined. They agree that tobacco use is harmful.

But they also say efforts to limit it trample on such other basic rights as freedom of choice and freedom to prosper.

More directly, restaurant workers say the ban is driving away customers and costing them money.

A waitress at the Waffle House on West Grant Road said that, between October and January, her weekly tips dropped from about $300 to $140.

A grill operator there said he lost about $20 every two days in bonus money. And the restaurant's owner said the ban caused a 16.2 percent drop in tax revenue.

"These guys have cost me," Waffle House owner Junior Mathis said at the time to Tucson's City Council.

Because that sentiment is shared by others, the law repeatedly has been ripped apart and pieced back together by restaurant owners, lawyers, police, prosecutors and, most recently, City Court.

The challenges center on:

· The City Council's provision to grant exemptions to restaurants that prove a 15 percent drop in business.

· A belief by some that the law unfairly singles out restaurants while allowing smoking to continue in other public places, including bars, hotels and bowling alleys.

Those concerns also have caused obvious problems for people charged with enforcing the law.

They say some restaurants aren't sure how to interpret it, while others have tried to find ways around the law by describing themselves as clubs or bars.

"We're finding there is some misunderstanding," City Prosecutor Laura Brynwood said recently.

Aggravating that is a ruling in late January on a challenge by the owners of Molly G's, a restaurant on East Fort Lowell Road that was cited for violating the law after declaring itself a private club and charging patrons $1 for membership cards.

Though a City Court magistrate found that Molly G's violated the ban, she also ruled that the law itself is unconstitutional because of the hardship exemptions.

The decision is setting the stage for even more debate.

The owner of Molly G's said she plans to appeal the ruling that she violated the law.

And Brynwood, the city prosecutor, predicts the council will have a difficult time if it chooses to alter the law by eliminating the exemptions.

"Without the hardship clause, I think the council is going to have second thoughts," Brynwood said.

In the meantime, we'd like to hear what you think.

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