Will bars and bowling alleys in Madison soon be sprouting new additions to accommodate smokers?
The Verona Press recently reported that Wildcat Lanes secured approval from that city's plan commission for an addition meant to exploit an apparent loophole in the state's new smoking ban, set to take effect this July. It seems to say if a structure has two or more walls with openings that make up more than 25% of wall area, it is not considered "enclosed" and hence is excluded from the ban.
"In other words," wrote the paper's editor, Jim Ferolie, "a completely enclosed room by any other definition needs only to have two walls with large, openable windows to allow smoking."
The Wildcat Lanes addition has large windows on three walls. The addition was unanimously approved, with one commissioner reportedly saying "cool" when the applicant admitted its purpose was to accommodate smoking.
Alan Harper, a plan review specialist with the Madison planning department, has not seen a wave of new applications, possibly because many bars and bowling alleys already have covered patios for smokers, built after the city's ban took effect in 2005. But he says applications received would probably be approved if they met building codes, "no matter how enclosed they are."
The task of enforcing the city's ban falls to Public Health Madison & Dane County, whose director of environmental health, Tommye Schneider, is worried about the new rules.
"It's definitely something we need to understand better," she says, "because the tobacco people will push this to the absolute limit if they can."
Pete Madland, executive director of the Tavern League of Wisconsin, says it remains unclear what the new state law allows: "We're really at a loss as to what to tell our members." But the March/April issue of On Premise, the league's magazine, assures bar owners that if a structure has two or more walls with an opening greater than 25%, "smoking is permitted."
That may be jumping the gun. Draft rules (PDF) just released by the Commerce Department seem to plug this loophole, saying some interpretations of what the new rules allow "would be inconsistent with the publicized objectives of the act." A hearing (PDF) on these proposed rules will be held in Madison on April 6.
"We are going to clarify exactly what you can and can't do when it comes to structures," says Zach Brandon, the department's executive assistant.
Regardless of whether new kinds of structures are allowed, the new state law will apparently prevent local authorities from considering smoking law violations in license renewal decisions, and cap fines for bar owners at $100 per day.
"If it had been written this way when Madison passed it," says Madison bar owner Dave Wiganowsky, "I would have just written them a check for $3,100 a month, because I lost a hell of a lot more money than that."
Madland notes, however, that the law also allows $250 fines on smoking customers, which could put a damper on businesses that try to buy their way past the ban.
Seems there always a catch.
