Owner of a Cutler Ridge bar battles state law on smoking
A tavern owner who has fought the state's indoor smoking ban is closing his business, but he will continue to fight. And, so far, he's winning.
January 3, 2005
BY NOAH BIERMAN
Walk into the Old Cutler Oyster Company in Cutler Ridge and there's something unusual going on: smoking.
In Florida's new world of smoke-free restaurants, this landmark tavern has become a speakeasy.
Bartenders sell cigarettes in green and red packages. Black plastic ash trays line the bar. Smoke emanates from the mouths of customers, who casually light Marlboros as they play video games or contemplate conch fritters.
The maverick owner of this tavern -- called ''O.C.'s'' or ''the Raw Bar'' by those who know it -- has been fighting the voter-approved smoking ban since it went into effect 18 months ago.
But the speakeasy is about to close.
Owner Michael Pace Sr. is selling the business because he got a good deal on a lease buy-out, he says. He plans to open a new upscale restaurant in the coming months.
Yet Pace will continue fighting the state's smoking ban, even though he has no intention of allowing indoor smoking at his next restaurant.
So far, he appears to be winning, to the extent that legislators may have to amend the smoking law next session to close loopholes that Pace has uncovered.
''We're the first one to get a favorable recommendation from a judge,'' said Pace, 53. ``We're following the law as it's written.''
In Florida, the law generally prohibits smoking inside restaurants, even if they include a bar.
Only stand-alone bars, which make less than 10 percent of their money on food, are supposed to allow smoking inside since a constitutional amendment -- approved by 71 percent of state voters -- went into effect in 2003.
Pace, who won't say how long he's been a smoker, has many complaints about the law. He says it discriminates because it allows exceptions for some businesses, even as its stated goal is to protect all employees from second-hand smoke. And he's annoyed that people who don't pay a mortgage or a payroll are making a key decision that will affect business.
While tavern owners say they have lost business from the ban, restaurants that depend less on alcohol have adapted more easily. A spokeswoman for the Florida Restaurant Association said the law has had a mixed effect on its members, and that outdoor seating has been crucial to satisfying smokers.
Darden restaurants, an Orlando-based chain with 140 Florida restaurants including Olive Gardens and Red Lobsters, has seen no drop-off in sales as a result of the ban, said Shannon McAleavey, director of government and community affairs.
But the general manager of Tobacco Road, the rustic downtown Miami icon, estimates his business has fallen 15 percent, despite an outdoor smoking patio. Tobacco Road customers are gradually getting used to it, but it still makes no sense to restrict smoking at a place called Tobacco Road, said general manager Lou Callahan.
Callahan's bartender, Rachel Garris, understands the ban hurts business. Still, she likes coming home at night without reeking of smoke.
Pace has kept smoking. His case with the state of Florida began July 9, 2003, just eight days after the law went into effect.
A longtime opponent, he spent years on the board of the Florida Restaurant Association.
On July 9, Florida Alcohol Beverage and Tobacco agent Jorge Fernandez walked into Pace's bar and saw people smoking. He told manager Lisa Tyrell, who got Pace on the phone with the agent. Pace received a warning that day and asked Fernandez to tell him when he would be back so he could ''make sure he had patrons smoking inside his business,'' according to case documents filed by the state.
Fernandez came back to the bar two more times before citing Pace on Sept. 18, 2003.
Rather than pay a $250 fine, Pace spent his own money to hire a lawyer. (He won't say how much.)
''The law was horribly, horribly, horribly written,'' Pace said.
Administrative Judge Michael Parrish agreed. His Sept. 24 opinion notes that there is no legal requirement for a bar owner to take ''specific action'' when someone is smoking in the bar. The judge also ruled that the Florida Department of Business and Professional Regulation is authorized to fine a ''person'' under the law, but not a business.
''The way it's written right now, there is no direction as to what a proprietor is specifically supposed to do,'' said Gregg Ormand, Pace's lawyer.
The legal opinion will not become final until the director of Business and Professional Regulation signs off on it. Lawyers for both sides have filed documents arguing their side, anticipating a ruling this month.
Department lawyer Mike Martinez acknowledges that Pace's is the only case he knows of to win a positive recommendation from an administrative judge.
Martinez said the department feels it can still enforce the law because at least one other judge has upheld its right to fine restaurant owners who allow smoking.
''At the end of the day, we feel that there are other avenues that we can [use to] enforce it,'' Martinez said.
Still, he and others are watching the Raw Bar case closely. Sen. Alex Diaz de la Portilla, R-Miami, who sponsored the smoking bill in the Florida Senate, said he and his staff plan to read Parrish's ruling this week. He says he'll move to amend the law if there are loopholes because Florida voters expect enforcement.
Andrew Cuddihy, South Florida program director for the American Lung Association, said the law is working well. But it has to hold restaurant owners responsible if it's going to be effective, he said.
Since the law went into effect, the department has opened 56 cases, assessing fines 29 times, either through orders or agreements. Two cases have been dismissed outright. Most of the other cases have yet to be resolved.
Statewide, the division of Alcohol, Beverage and Tobacco has 135 agents. But none is devoted solely to enforcing the tobacco ban, said Meg Shannon, spokeswoman for the Department of Business and Professional Regulation. Agents depend on customer complaints to find violators. Most restaurateurs are complying with the law, she believes.
Back at the Raw Bar, Julie Beltz is playing a video game at the bar and reminiscing. She calls the place the Cheers of Cutler Ridge. She was an employee for four years and a customer for the other 14 years she's been coming.
BURT & LONI VISITED
Pace points to the corner booth, where Cutler Ridge activists met to plan incorporation for the area. He's hosted a radio show from the bar. Burt Reynolds and Loni Anderson dropped by after landing their helicopter at the former Burger King headquarters a few years back. Other couples have found more success in marriage after meeting at the bar. Some former customers have mourned the dead and celebrated births inside the walls, where other customers have scribbled their names.
This Saturday, Pace plans a huge going-away party.
Beltz will miss more than the smoking.
''When we found out it was closing, a lot of people were lost,'' she said.
WLRN-Herald News reporter Rhonda Victor Sibilia contributed to this report.
||There is no clear statutory duty for the proprietor of an enclosed indoor workplace to take any specific action when patrons are seen smoking in such workplace.|