Thursday, January 4, 2001 Older Editions

Smoking ban debate: BOH undecided on article

By Adam Groff

The Board of Health's support for a Town Meeting article that would further ban smoking in Andover seems questionable, but members plan to decide the provisions of the smoking-related article this Monday, Jan. 8.

Health Director Everett Penney is hoping to introduce an article at Town Meeting to ban smoking in all public places in Andover. This would amend the 1994 smoking bylaw, which bans smoking in all restaurants, but not in all bars.

Penney is actually proposing an article that make five changes in town. In addition to establishing a local tobacco license, upping the penalties for selling tobacco to minors, and removing cigarette vending machines from town, Penney and his staff are proposing two other measures that are more controversial: they want to eliminate a variance to the current bylaw that allows smoking in certain mixed bar and restaurant facilities in town, and they want to extend the bylaw to have it apply to bar-only establishments.

The latter measure would affect the lone bar-only establishment in town, the Park Street Pub. There are four establishments that have made the alterations to their facilities that qualify them for the variance allowing smoking in strictly separated bar areas: Grill 93 on River Road, Justin's at Andover on Park Street, Palmer's Restaurant on Elm Street, and Character's Bar and Grill in the Wyndham Andover Hotel.

But the policy-making body of the health department, the Board of Health, may not go along with all of these proposals.

"I think it's safe to say that at least two and maybe all three members of the board are undecided about the proposed ban on smoking in a bar," said Chairman Douglas Dunbar. "We want to hear a little more before making a decision."

"Banning smoking in a bar is not something I support," confirmed board member Daniel Coleman. "I am a lung doctor, so I am absolutely anti-smoking, but I think we need to be reasonable. I'm just not sure I can support a 100-percent ban of public smoking in Andover. If somebody enters an establishment where there is (smoke), that's their choice."

"As far as the others are concerned," said Coleman, referring to the establishments with variances, "I haven't quite come to a decision. I know at least one of those establishments has invested quite a bit of money into creating separate sections. There are quite a few nonsmoking establishments in Andover, and I would encourage people to choose those."

"It seems that it's a little bit drastic right now," echoed board member Joseph Pelc about the idea of a bar-only smoking ban. "If somebody wants to go to a bar and they know there's smoking there, that's up to them."

"I'd say there are two issues that make that position a myth," responded Penney. "One is that there are employees at these places who are exposed to second-hand smoke. We don't expect shipyard workers to have to be exposed to asbestos, and we shouldn't expect bar and restaurant workers to be exposed to tobacco smoke. Second, there are a number of people who would like to frequent these facilities but don't because of the smoke, and if these facilities have the mission of accommodating anybody who wants to go there, then they should get rid of smoking. It's the job of the Board of Health to remove that impediment."

Penney further asserted that the Board of Health has the authority to unilaterally pass a smoking ban. "The Board of Health has the authority to pass any regulation related to public health that it wants," said Penney. "We've decided to take it to Town Meeting and let the town decide, because those are the people who should be making these decisions. The board's role is to propose issues and educate the town."

Owners React

"We've spent close to $100,000 on renovations," said John Ingalls, the owner and chef of Palmer's who took over the establishment almost five years ago. "I'd say 65 to 75 percent of that was redoing the bar around the variance. I almost consider it two different operations."

In order to be granted a variance to the smoking bylaw, an establishment in Andover must have separate heating and ventilation systems in smoking and nonsmoking areas, and restroom facilities must not be situated in such a way that nonsmokers must walk through smoking areas to get to them. Signs must clearly label the smoking and nonsmoking areas, and the Board of Health must also approve the menu for the smoking area to ensure that it is limited to "bar food."

"We have a separate bar upstairs where waitstaff can go to get sodas and drinks so they don't have to go into the tavern," said Ingalls. "We originally allowed cigar smoking, but we don't anymore. We don't sell cigarettes. We've spent quite a bit of money. People say (eliminating smoking) won't affect your business, but I believe it will. People will go to other towns to smoke, and it will take away business."

"We've had the variance for several years," said Ronald Sava, one of the owners and the general manager of Grill 93. "I don't know why this is resurfacing now." Penney has said that he told the establishments when they applied for their variances that the health department had a total smoking ban as its ultimate goal.

"If they were to go ex post facto and change the regulations after we invested all that money into altering the facilities, that would have definite financial effects," said Sava. He describes Grill 93 as a "restaurant and entertainment complex," because it has a comedy club as well as a restaurant. The entire facility seats 800, according to Sava.

"This isn't just restaurant work, this is entertainment," said Sava. "Every comedy club in the country has smoking."

With regard to the concern about employees' health, he said, "Every waiter and waitress that works here has the option of working in smoking or nonsmoking. If you say to the employees, 'We're going to help you by telling your customers not to smoke,' but then they're out of work because the customers leave, then you're not helping them."

"Research shows that there is no falloff, no economic impact of eliminating smoking," said health board chairman Duncan. "but the Board of Health is not concerned with economics, we're concerned with public health."

Said Sava, "Unfortunately, I think that some of the anti-smoking committees think that if they make it hard enough for people to smoke, they'll eventually stop. But if you made cigarettes $5 per pack, and ban it in public, and put up signs everywhere, people would still smoke. It would be like Prohibition."

Penney said that after Monday's meeting, the Board of Health will hold a public hearing in February to solicit final public input before the warrant article, whatever provisions it may contain, goes before the town in April. Monday's meeting is at 6 p.m. in the second-floor conference room of town offices and is open to the public.