On a raw and rainy Sunday afternoon, the regulars at Charbel’s Sports Grill found a safe haven to shoot pool, drink beer and watch the NFL championship games on television.
And to smoke, despite a new law against it.
Two months after Virginia prohibited smoking in most bars and restaurants, a blue haze still lingers inside Charbel’s, a working-class watering hole that sits among car dealerships on Salem’s East Main Street.
Last Sunday, cigarettes dangled from the lips of pool players and glowed intermittently like fireflies in the hands of men perched on bar stools. Even behind the bar, a cigarette smoldered in an ash tray.
“It’s not affected me at all,” Charbel’s owner, Charlie Nakhle, said of the law.
About 95 percent of the state’s restaurants and bars inspected so far are following the requirements, according the Virginia Health Department. But little has been done, at least so far, to deal with places such as Charbel’s.
The law states that local health departments are responsible for enforcement, but it gives them no legal authority to issue a summons. The most health officials can do is turn a case over to local police. And even if a charge is filed, the maximum punishment is just a $25 fine.
Although more that 100 people statewide have complained about smoking in bars and restaurants since the law took effect Dec. 1, officials are not aware of any charges filed so far, according to Gary Hagy, head of the state health department’s food and environmental services division.
“The health department is not in the enforcement business with this particular law, ” said Robert Parker, a spokesman for the department’s Roanoke regional office.
At Charbel’s, Nakhle parked his cigar in an ashtray long enough to explain that he plans to comply with the law — eventually.
Virginia allows patrons to continue to light up in establishments that have a separate smoking room with its own ventilation system to prevent cigarette fumes from invading the rest of the building.
Nakhle has a variation of that in mind: Instead of having one tobacco-friendly room in a bar where at least 95 percent of his customers smoke, he plans to seal off a single room for the few nonsmokers.
Rather than start work right away, Nakhle plans to wait until health department inspectors show up and approve his plans. There’s no need to spend money on something he might have to redo, he figures.
“I’m not bucking the system, ” he said. “But I don’t like it.”
If someone were inclined to buck the system, becoming a smokers’ sanctuary of sorts, the relatively small fine might be seen as the cost of doing business.
“A lot of people might say, ‘Well, hell, I’ll pay the $25 fine.’ ” Nakhle said.
Virginia’s new law one of nation’s most lenient
Virginia is one of 33 states that prohibit smoking in bars and restaurants, according to Americans for Nonsmokers’ Rights, a California-based organization that tracks the issue. The law applies to both individual patrons and establishments.
When it comes to enforcing the law, Virginia has one of the most lenient penalties.
“That is on the very low end, ” Cynthia Hallett, the executive director of ANR, said of the $25 fine. “I don’t know if that is really enough to send the message that this is a major public health issue.”
In North Carolina, which recently passed a law similar to Virginia’s, the fine for violators can run up to $200, an amount that can accrue daily for as long as the infraction continues. Arizona has the toughest penalty, up to $5,000.
Virginia has yet to officially make the ANR’s list of smoke-free states because it allows restaurants to have separate smoking areas. Such provisions date to the 1980s and largely fell out of favor after studies showed that cancer-causing fumes can seep from designated smoking areas into the rest of a restaurant or bar, Hallett said.
According to online records of health department inspections, 77 percent of the full-service and fast-food restaurants in Roanoke are totally smoke-free. Of the full-service restaurants, 65 percent have banned smoking completely.
That leaves 61 restaurants in the city that have designated smoking areas, according to online records. But those numbers are self-reported by the restaurants, Parker said.
It’s only when health department officials conduct an on-site inspection of a restaurant — which typically happens about twice a year — that they determine whether an establishment is actually in compliance.
Health department officials note on inspection reports which restaurants are breaking the law. But violating the smoking ban has no impact on a business’ license to prepare and sell food, Hagy said.
However, repeat offenders could be subject to administrative action involving their license to serve alcohol, according to a representative from the Department of Alcoholic Beverage Control.
So far, the health department has been trying to educate offending establishments and encourage them to either ban smoking or build a designated smoking area that complies with the law.
One restaurant owner, who asked not to be identified, said she put a “No Smoking” sign on her front door after the health department came through and wrote her up.
But after the inspector left, she took the ash trays out from behind the bar and let her patrons light up again.
The alternative, she said, was to watch her customers walk out the door and down the street to competing bars that were also ignoring the law.
For the most part, chain restaurants, fast-food places and the more well-established local restaurants have chosen to go smoke-free, according to health department records.
Independently owned community bars and restaurants, which often have a local base of patrons who like to smoke, have found it harder to follow the law, said Rodney Price, the owner of Bob’s Restaurant in Vinton.
“It’s probably cost me about $300 to $400 a week, ” Price said of the revenue he’s lost from smokers who have taken their business elsewhere. Price put an outdoor deck with tables in front of his restaurant for smokers, but that didn’t go over well during the cold weather.
Building a smoking room with separate ventilation is often too much of a financial burden for mom and pop establishments, Price said.
“To get the whole thing done to adhere with the law, it will probably cost about $10,000, ” he said.
Enforcement system still in development
After working the 1 to 9 p.m. shift for the U.S. Postal Service, Gary Lantz likes to stop at a restaurant on the way home for a beer and a meal. What he doesn’t like to do is inhale cigarette smoke in the process.
One time, Lantz became so frustrated with a smoke-filled restaurant that he called the law.
“It’s pretty bad when you order a beer and a cheeseburger and you have to call 911, ” he said.
Roanoke police have received some calls from people complaining about smoking in restaurants since the law took effect, although spokeswoman Aisha Johnson could not say how many. So far, police have handled the matters by warning management about the law and leaving without issuing a summons, Johnson said.
Police are also informing the health department about offenders.
Authorities in Roanoke County and Salem said they have received no smoking-related complaints; Vinton reported one call that was handled the same way as in Roanoke city.
In other states that ban restaurant smoking, fines are usually reserved for offenders who continue to violate the law after repeated warnings, said Annie Tegen of Americans for Nonsmokers’ Rights. In Virginia, authorities are in the process of deciding just when to enforce the law.
“Dialogue is under way with multiple local police departments (cities, counties, towns) to develop an appropriate system for enforcement, with guidance from VDH’s central office, ” Parker, of the health department, wrote in an e-mail.
For Lantz, one question that remains is whether restaurants can get away with relegating their nonsmoking customers to small, enclosed areas while letting smokers roam free. In one restaurant, which Lantz declined to name, he said he was confined to a small, Plexiglas-encased corner.
“It just seems like the nonsmokers are in a cage, with people looking at you, ” Lantz said. “It defeats the whole purpose of the law.”
‘Right-to-smoke’ arguments vaporize
The son of Lebanese immigrants who came to Roanoke when he was 10, Nakhle found that he could make it in America by running bars, first on Shenandoah Avenue in Roanoke and now with Charbel’s in Salem.
Growing up, he said, “all I heard about was freedom. Now, it’s getting to where my freedom is being taken away.”
The way Nakhle sees it, government can ban smoking in places such as shopping malls and schools. But not in bars, he argued, where consenting adults should have the option to enjoy cigarette smoke along with drinking beer, shooting pool and listening to music.
“I don’t twist people’s arms to come in here, ” said Nakhle, who on a recent night at Charbel’s wore a T-shirt emblazoned with the words: “Y’all go to hell; I’m going to Texas.”
“Hell, we’ve got whorehouses in this valley, ” he said. “But it’s up to you if you want to go or not.”
Some smokers grumble that laws such as Virginia’s trample on their constitutional rights. Legal challenges to smoking laws are usually based on one of two grounds: that smoking is a protected personal liberty, or that smokers should be able to seek refuge under the equal protection clause.
Neither argument has held up in court, according to Samantha Graff, a staff attorney at Public Health Law and Policy, a project of the Public Health Institute in Oakland, Calif.
“The so-called ‘right to smoke’ is actually a smokescreen, ” Graff wrote in a legal synopsis on the topic.
Courts have generally upheld smoking bans because of the legitimate government goal of protecting people from health risks caused by secondhand smoke, Graff wrote.
At Charbel’s, Nakhle is taking a pragmatic, even fatalistic, view. He figures that sooner or later, the health department will show up. When that happens, he hopes his plan to make the front room of his pool joint nonsmoking will pass legal muster.
“If I have to go nonsmoking completely, then I have to go, ” he said. “Which would cause me to lose a lot of business and maybe shut my doors.”
But at least for now, the doors at Charbel’s remain wide open to smokers.