Stubbed Out

Despite hefty losses, Minneapolis bar owners can't get anyone to reconsider the smoking ban

Ask Jeff Moritko about his role in the smoking ban, and he'll offer up a disclaimer: "I'm a dumb Polack bar owner from northeast Minneapolis." Delve a little deeper, and Moritko, the owner of Mayslack's for the last eight years, will admit he gladly participated in the smoking-ban task force a year ago. The idea, he was told, was to hash out a ban that would appease the antismoking advocates while protecting business for bars around town. "Honored," is how Moritko says he felt when Mayor R.T. Rybak asked him to come to the table.

But within the opening minutes of the first meeting last summer, Moritko got the distinct feeling he was outnumbered. There were only two other bar owners in a group of about 25 people, and the rest--antismoking crusaders, city officials--were clearly looking for nothing short of a total ban. Rocco Forte, the former chief of the Minneapolis Fire Department who's now in charge of the city's regulatory services, led a total of three meetings. None of them, according to Moritko, lasted more than an hour--barely long enough to talk about various ban proposals. From day one, Forte had distributed a proposal that closely resembled the ban that the City Council approved later.

"It wasn't quite what some of us had in mind," Moritko says now. "The task force wasn't there for creative input. It was a forgone conclusion, and nobody wanted to hear what the bar owners had to say."

In the months leading up to the ban, which went into effect on March 31, many tavern keepers and nightclub managers warned that the full effects of the ban hadn't been considered. They argued, for instance, that sending people outside to smoke would create a number of hazards, like litter and noise, as well as impenetrable crowds at the entryways of most establishments. More than that, they warned that the gatherings on sidewalks would be unmanageable, and possibly conducive to muggings or assaults. Though such concerns were shrugged off, any regular bar-hopper can see that many of their fears have come true.

Most important, though, is the financial impact. Most bar owners were concerned that the ban would lead to loss of business in off-hours, keeping regulars and even nonsmokers away. (Nobody likes to sit in an empty bar, the thinking went, no matter how clean the air.) Right before the antismoking ordinance went into effect, a group of bar owners in Bloomington and Minneapolis sought a temporary injunction against the ban, which was denied in part because any prospective damage to the bars' bottom line was unproven at that point. Then last month, a different group of bars--mostly in or near northeast Minneapolis--again sought a restraining order, this time providing details of their financial duress in the wake of the ban.

The plaintiff's evidence--from sworn affidavits--is striking. "Revenues at the U Otter Stop Inn are down 65 percent," according to the complaint, "and there have been at least three days in which the bar has taken in less than $20 in gross receipts a day." Business at Gabby's Saloon and Eatery in Northeast are down 12.4 percent from April 2004 to April 2005, and 10 of 93 employees have been laid off. Johnny A's on West Broadway saw an 18 percent drop in April from last year to this year. Jax Café, an old-school supper club in Northeast, was seeing food and liquor sales up by $30,000 a month (roughly $380,000 in total monthly revenue) from winter 2004 to this past season. But in April, when the ban took effect, sales dropped some $64,000 from the same time last year. And Escape Ultra Lounge, in Block E, has reduced operations from six to four nights a week--sometimes offering free drinks until midnight just to lure customers in off the streets.

"This is a real problem," says Jeff Ormond, owner of Gabby's. "We don't have a lot of time to correct it. You'll see a lot of bars closing in a month's time."

Despite such stark numbers, District Court Judge Charles Porter denied the restraining order last Wednesday. Though he found instances of "irreparable harm" financially due to the smoking ban, he refused to issue any relief for the plaintiffs.

 

Ormond and Moritko have not stopped fighting. In conjunction with more than 60 bars and restaurants around town, they've formed the Minneapolis Hospitality Association. Various bar owners in the association share stories about trying to adjust to life after the ban, noting the common hazards that come with it: altercations out on the sidewalks, more money spent on propane to keep heat lamps going outside, patrons stepping out for a smoke and skipping out on a tab.

"Everything that's happening now, we said would happen," Moritko says.

Aside from the day-to-day headaches, a number of proprietors of joints ranging from Harvey's to Grumpy's to Déjà Vu all bemoan the political reality. Most say they have received little more than lip service from city officeholders. Mayor Rybak, according to one source, even refused to discuss a compromise on the ban at City Hall one day.

The MHA group has had meetings with three City Council members, including Natalie Johnson Lee and council president Paul Ostrow. Both expressed condolences, but not much else: In a citywide election cycle, nobody has the fortitude to even bring up a reconsideration of the ban.

Council member Dean Zimmermann says he's sympathetic to what he views as "significant hardships." "Let's say that I have not closed off my ears to the things they are saying," Zimmermann says, adding that he's looked at a way to amend the ordinance, and has even talked with Ostrow about a "moratorium" on the ban while some establishments get their footing again. "When we talk about public health, economic health has to be part of it."

Still, Zimmermann says, he hasn't brought the matter up with his colleagues because "politics and the election are in the bigger picture of things." Specifically, Rybak has indicated that he would likely veto any council vote that repeals the ban--and there are currently not enough votes on the council to override a veto. (Additionally, there is the Hennepin County ban to contend with.)

One thing Zimmermann now says he regrets is the role that St. Paul officials, especially council member Dave Thune, played in the ban. Thune had convinced his Minneapolis counterparts that he had enough votes on the council to implement a comparable full ban in St. Paul. But Thune didn't have enough votes to override Randy Kelly's mayoral veto, and the Ramsey County Board eventually enacted exemptions from the ban for all establishments where liquor sales make up 50 percent or more of the gross receipts.

If the Minneapolis ordinance's total ban has hurt local bars, it has been a distinct boon to their counterparts in St. Paul. Dan O'Gara, owner of O'Gara's on Snelling Avenue, says his receipts were up 14 percent in April compared with the previous year. "The very first day, we were seeing faces we hadn't seen before," he recalls. "I don't know if it's all the smoking ban, but it's certainly had an impact. It's not just people from Minneapolis coming here, but people from St. Paul not going to Minneapolis." But despite his good fortune, O'Gara feels sympathy for his brethren in Minneapolis: "You don't want to see an increase in sales simply because something has been legislated."

It's a sentiment echoed by Bryan Turtle, owner of Turtle's Bar and Grill in Shakopee. Turtle's, a Scott County bar just over the line from Hennepin, saw a 21 percent hike in business in April. "All sorts of places just outside the county line are up," Turtle says. "I hate to wonder where that money is coming from."

 

Back in March,Minneapolis business owners' initial request for a restraining order was shot down for two reasons. First, District Judge John Q. McShane denied the plaintiffs' claim that the 1976 Minnesota Clean Indoor Air Act does not allow local authorities to place conditions on where people can smoke and where they can't. Second, he set aside their claim that the ban would do "irreparable harm" to Minneapolis bars as "speculative."

This time around, Randall Tigue, the attorney representing Gabby's, Escape Ultra Lounge, Jax Café, and the others, claimed that the Minneapolis ban exempted "locations where smoking is expressly authorized by state law or federal rule." Tigue went on to argue that the state's air act allows for bars and restaurants to designate smoking and nonsmoking sections, and that some bars are, according to state law, the only public places allowed to be designated smoking areas in their entirety. The Minneapolis ordinance, according to Tigue, allowed for smoking in Minneapolis where it was already allowed according to the state law. Second, Tigue laid out a case for "irreparable harm" once again, this time based on real sales figures since the ban commenced.

Judge Porter disagreed on the first argument, citing a state attorney general's ruling from 2000 that held the Clean Indoor Air Act "expressly reserved the right of local governments to make 'more stringent smoking limitations.'"

On the financial front, Porter was more responsive. "Plaintiffs have made a strong showing that they stand to suffer serious economic injury if the ordinance remains in effect," his ruling says. "It is quite possible that some, if not all, of the Plaintiffs will eventually go out of business as an incidental result of the smoking ban." Even so, he concluded that "Plaintiffs are not entitled to a Court's intervention simply because they have suffered and continue to suffer such harm."

Tigue says he's buoyed by the judge's official recognition of "irreparable harm," and plans to take the case to the Minnesota court of appeals sometime this week. He adds that he hopes to win a temporary stay on the ban while the court reviews the findings.

Ormond and his MHA cohorts are considering further options, such as establishing a PAC to lobby Minneapolis City Council members and lawmakers at the Capitol. "Even a temporary injunction would be great, and give the City Council a chance to wipe the egg off their faces and rewrite the ordinance," he says, before pausing. "But it's all political now."

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