Where there’s smoke: Country club exemption in smoking ban creates constitutional quandary for courts
Stephanie Oudinot (left) and Crystal Ratcliffe unwind after work at Gate City Billiards Country Club, an establishment that is openly defying North Carolina’s ban on smoking in restaurants and bars. (photo by Evan Brennan)
Dressed in blue veterinary scrubs with her blond hair cut short, Crystal Ratcliffe stood at a bar table, pool cue in hand, taking a drag off a cigarette.
She appraised the pool table, rested the cigarette in an ashtray and leaned in for the shot.
Posted outside the door at Gate City Billiards Country Club on Landmark Center Boulevard is a laminated sign bearing the emblem of a lit cigarette covered by a red circle and strike-through line warning, “No smoking indoors,” citing the statute for the statewide smoking ban and listing a phone number for a state hotline where complaints about violations of the law can be lodged.
In spite of the posted prohibition, Gate City Billiards is operating in open violation of the statute, its management and clientele an outlaw tribe at this genteel establishment dedicated to the game of pool. About a dozen tables are situated around the club’s main room, each accompanied by a round bar table equipped with an ashtray. A long bar in the back of the room is likewise stocked with ashtrays.
On a recent Thursday evening, most of the pool tables were getting action, and players were studiously attending to their games, many of them keeping lit cigarettes at the ready. Sweating Bud Light bottles and halfdrunk Dr. Pepper cans attested to the players’ other habits of choice. The non-smoking room, boasting three tables in pristine condition and nicely appointed with a mounted flat-screen television in the corner, was completely unoccupied. Don Liebes, the owner of the establishment and a former smoker, was finishing up a game in the main room.
“The smoking ban, I guess, could probably work for a bar,” he said. “A pool hall is different. You can’t go outside and then come back in and continue your conversation later. You’re playing with other people, and if you have to step outside to smoke, it’s going to hold up the game.”
He started outfitting the facility about three years ago, intending to create an upscale pool hall that would occupy a unique niche among Greensboro’s nine or so billiards establishments. At a cost of between $70,000 and $80,000, Liebes installed smoke eaters in the main room and walled off a separate non-smoking room with a distinct ventilation system. Then the NC General Assembly — led by Hugh Holliman in the House and William Purcell in the Senate — started talking about banning smoking in establishments that serve food and alcohol. The cause was especially dear to Holliman, a cancer survivor who had part of his lung removed last year. With his defeat at the polls in November, Holliman’s political legacy is considered by some to be the smoking ban.
A patron enjoys a cigarette in the outdoor smoking area at Rider’s in the Country, a road house that is abiding by the law. (photo by Alfonso Tobar)
The legislation, which was signed into law in 2009 by Gov. Beverly Perdue and went into effect in early 2010, contained a loophole that its drafters might now regret: It makes an exception for private clubs, which state law defines as a membership organizations that are incorporated as nonprofits or otherwise exempt from federal income tax requirements. That includes country clubs, along with civic clubs such as Veterans of Foreign Wars, the Elks, Lions and Rotarians. The law also exempts cigar bars as long as they are housed in freestanding structures. Mary Gillette, tobacco prevention coordinator for the Guilford County Department of Public Health, said the hookah bar industry, led by a Chapel Hill entrepreneur, passed up an opportunity to have an exemption written into the law similar to that granted to cigar bars. As a result, the three to four hookah bars operating in Guilford County have ceased selling food and liquor, and so do not fall under the ban. Likewise, Mooney’s Mediterranean Caf’ sells tobacco to hookah users only after its kitchen closes and diners clear out around 10 p.m.
In anticipation of the new law, Gate City Billiards formally appended the words “country club” to its name in filings with the NC Secretary of State. The billiards club also obtained a mixed-beverages private club permit under the state’s alcoholic beverages control laws — a grouping of statutes separate from the public health law, which regulates smoking in restaurants and bars.
In addition to trying to skirt the law through technical means, Liebes has taken a principled stand against it. The establishment’s website prominently states, “We at Gate City Billiards Country Club believe that this ban is not constitutional as written. Until this matter has reached final resolution, smoking will continue to be permitted in the main room of our club.”
Through its open defiance of the ban, Gate City Billiards continues to rack up fines from the Guilford County Department of Public Health at a cost approaching $2,000. Still, that’s minimal compared to the amount of revenue Liebes believes he would lose if he opted to enforce the ban.
Liebes estimates that 75 percent of his clientele smokes. Based on conversations with billiards operators in Tucson, Ariz., which is subject to a recent ban, and with operators in North Carolina after this state’s law went into effect, Liebes believes he would lose 30 to 40 percent of his business if he were to comply with the smoking ban and be forced to close his doors.
A slender man with a light beard wearing a long-sleeved thermal shirt, blue jeans and tennis shoes, Liebes quietly argued a comprehensive case against the smoking ban: He sunk a lot of money into creating a high-end establishment that would give his patrons a choice; the state needs as much tax revenue as it can get right now; likewise, no purpose is served by throwing additional people onto the unemployment rolls; his establishment is supporting the beer distributors; it donates money to the police department and other charitable causes.
Most of all, while restaurants and some bars are finding that the smoking ban helps their bottom lines, Liebes argues that it’s not fair that he has to compete with nonprofit private clubs such as the local Elks lodge.
“They don’t really operate differently,” he said. “The Elks club has three pool tables. I would say about 50 percent of my afternoon customers also patronize the Elks club. I’m losing business to the Elks club only because they’re a nonprofit.”
While his cause is not exactly the moral imperative of historic proportions that led Rosa Parks to occupy a whites-only seat on the bus in Montgomery, Ala., Liebes is essentially committing civil disobedience to uphold the US Constitution’s equal protection clause under the Fourteenth Amendment. Because of his unwillingness to back down, North Carolina’s court of appeals and perhaps even its supreme court will have to address the sticky question he raises.
From the beginning, Liebes made it clear to the county health department that he did not intend to honor the ban because of his conviction that the law is unconstitutional. Predictably, the health department imposed fines, which Liebes appealed. Its citizen board upheld the fines, but in one hearing minutes reflect that “the board voted to remain silent on the issue of constitutionality.”
Liebes took the next logical step and hired some lawyers. He enlisted Seth Cohen, a Greensboro attorney with longstanding ties to the ACLU of North Carolina, and J. David James, a founding partner at Smith James Rowlett & Cohen.
In sparkling legal prose befitting a case of first impression, Cohen and James argued in a July 2010 legal memorandum: “The narrow issue before this court, therefore, is whether there is a rational basis for distinguishing between for-profit and nonprofit private clubs, given that the undisputed legitimate government interest in passing the new legislation was to ‘protect the health of individuals in public places and places of employment’… Absent a rational basis for this legitimate government interest, the smoking ban as applied to Gate City Billiards violates the equal protection clause.”
Guilford County District Court Judge Jan Samet concurred that the rational basis standard was the relevant consideration in deciding whether the law passed constitutional muster, but ruled against Gate City Billiards anyway. In an order displaying tortuous reasoning, the judge concluded that the law does meet the test of rational basis.
“This act does create certain exemptions including one for ‘private clubs,’” the order reads. “The definition in the act for ‘private clubs’ is clear and is more narrowly defined than in other existing definitions of the term found in other statutes, such as ABC laws and restaurant sanitation laws. This court finds that it is logical that the act would allow for exemptions such as private clubs and that the term ‘private clubs’ is defined more narrowly than the ABC laws in order to better and more rationally fulfill the purpose of this act.”
The case has been appealed to the NC Court of Appeals, and Liebes is waiting for a scheduling notice. Meanwhile, arguments in the case’s trial phase point to the conundrum posed by Liebes’ demand for accommodation.
Guilford County Attorney Mark Payne wrote in a brief last year: “Appellant’s real complaint, it appears, is that his establishment cannot make use of the ‘private club’ exemption in the same manner in which he has made use of that exemption within the ABC regulations. If appellant could claim ‘country club’ or ‘private club’ status within the meaning of NC Gen. Stat. ‘ 130A-491 et seq., he would have an economic advantage over other similar commercial establishments.”
Payne’s brief grabbed hold of the equal protection argument, insisting that the law treats all restaurants and bars in an equal manner, and letting one establishment allow smoking while others send their patrons outside to smoke in the cold would tilt the scales.
That’s pretty much the way George Rider, the crusty proprietor of Rider’s in the Country, and his right-hand man and DJ, Dan Efird, feel about the situation.
Rider’s in the Country is a roadhouse equipped with a couple pool tables that mixes live music, DJ tracks, amateur wrestling exhibitions and charitable events, depending on the night. Located in southern Guilford County, you can stare across the line into Randolph County from the nightclub’s parking lot.
On a recent Friday as Dam Fino revved up its set of classic rock covers, Rider was out in the smoking area chatting with patrons Jackie and Doug Jones of Greensboro. The crude but serviceable smoking area consists of a concrete slab enclosed by tarps, and is equipped with space heaters and standard wooden bar tables that hold ashtrays and drinks. At least a dozen patrons were puffing away, and the space had a convivial air of loud and friendly conversation.
Rider is a profane and goodhumored man with a way of putting people at ease.
“She smokes like a chimney,” he said, teasing Jackie. “This is the only way we can get her cooled off.”
Jackie complained, “The only time I smoke is when I drink; they took that away.
“I came out here to smoke and my husband comes out with me,” she added. “This is our song. We should be in there dancing.”
Doug, who wore a black felt Stetson-style hat, does not smoke.
The conversation turned to the Jones’ 47 years of marriage.
“Good man, right?” Jackie Jones said, casting an approving glance towards her husband.
“Tough-ass man,” George Rider commented.
As to whether she could appreciate the purpose of the ban in protecting the health of the public, in particular nonsmokers subject to secondhand smoke, Jackie said, “I don’t agree with it at all.” She paused a moment and pointed at her husband, adding, “There’s an example.”
Rider’s in the Country has scrupulously complied with the law since it went into effect about a year ago. George Rider estimated that since the smoking bank’s implementation he has lost about 40 percent of his revenue — a setback compounded by the economic downturn and the public’s increasing reluctance to spend’ ever more limited discretionary income on entertainment. What hurts even more is that not everyone is abiding by the rules.
“If it’s going to be a law, let’s enforce it,” Rider said. “There are some still getting by with it.”
Later, while discussing the matter with Efird in a beer storage closet they call their “office,” Rider added, “We don’t want to be a snitch on anybody. If we’re going to have it, enforce it. Otherwise, do away with the motherf***er.”
Efird has called the Randolph County Health Department to complain about flagrant violations of the smoking ban at Full Throttle Bar, a roadhouse in nearby Randleman.
As a testament to the perils of social media, the Facebook page for the band Dirty Surprise, which played a New Year’s Eve gig at Full Throttle, offers ample evidence that the ban is routinely violated. The band’s motto is, “Come clean, get dirty.”
A Jan. 2 post near the top of the band’s Facebook page from Jada Wilson Ballard effuses, “We had a great time on New Years Eve at the Full Throttle Bar with you guys! We came clean and got dirty (mainly because of all the cigarette smoke LOL)!! [heart] y’all!” During a Friday night visit to the club on the same night that Rider’s in the Country was operating with the ban in effect, a small group of patrons could be observed smoking at Full Throttle. The owner of the club could not be reached for comment.
The two establishments feature overlapping entertainment and draw from the same clientele base. Dirty Surprise is listed on Rider’s in the Country’s website for gigs on Feb. 11 and Feb. 12. And Dawn Durham, a patron at Rider’s in the Country, noted that smoking is allowed at Full Throttle.
“They’re not enforcing [the ban] in Randolph County,” Efird said. “Their exact words are, ‘We’ve had so many complaints that we don’t have time to handle it.’” MiMi Cooper, Randolph County’s director of public health, disputes any notion that her agency is unable to adequately enforce the ban, either from lack of will or resources.
“If we had a lot of establishments that were not complying, we’d be pressed,” she said. “We’ve had a few complaints, but most establishments are in compliance. We have one that seems to have a chronic problem. We’re warning them, and they’re paying the penalties.”
Efird complained that Full Throttle’s owner “takes his ticket every four to six months. He considers it the cost of doing business. Guilford County will come in every night and ticket you. So it has to be enforced evenly.”
Mary Gillette, with the Guilford County Department of Public Health, accepted the compliment.
“I’d say we do an excellent job with enforcement,” she said. “I don’t know if anyone is as diligent as we are.”
As to whether some establishments that are flaunting the law might consider the fines to be the cost of doing business, Cooper didn’t waste words: “Certainly.”
So if you wanted to have a smoke in a place that serves alcohol — outside of a traditional country club where golf and tennis is played, or a veterans hall or similar civic organization — you could start with Don Liebes’ place, which is taking a principled stand against the ban. Or you could visit Full Throttle, which is merely pretending the ban doesn’t exist. And if you were willing to drive to Pitt County, you’d have four choices of establishments where patrons smoke with the legal sanction of a judicial order behind them.
The owners of Live, Club 519, 5 th Street Distillery and Mac Billiards challenged the smoking ban using exactly the same argument as Gate City Billiards: The law is unconstitutional, they said, and even if it was valid they should be considered exempt because they operate as private clubs.
Pitt County District Court Judge Galen Braddy was not impressed by the distinction between for-profit private clubs and country clubs. If anything, the judge’s Nov. 17 final order suggests that country clubs have even less justification in claiming exemption from the ban.
“Country clubs’ members normally have an ownership interest and vote on decisions for the membership and the club’s operation, while the owner of the bar or billiard room makes all the decisions regarding the operation of the bar,” the order reads. “The petitioners’ members themselves have no say in conduct or behavior that is allowed while exercising their membership privileges. The petitioners operate for profit. Although this would suggest a difference in the operation of the two enterprises, country club members who cast a losing vote to allow smoking would be involuntarily exposed to secondhand smoke in order to continue enjoying playing golf and other benefits of country club membership. Members of the petitioners’ businesses, on the other hand, would understand before obtaining a membership that smoking is permitted and make a voluntary choice whether to apply.”
Braddy took pains to avoid making a decision that would be controlling on other estab-lishments that sell food and alcohol,writing that the “decision is narrowlydrawn to apply only to the petitionerswho operate their businessesas described herein.” The law, asapplied to Live, Club 519, 5th StreetDistillery and Mac Billiards, is “inviolation of the equal protectionclauses of both the United Statesand North Carolina constitutions,”the order reads, “and are thereforeunconstitutional and unenforceableagainst petitioners only.” Notwithstanding the widely publicizedlegal challenges and whatthey consider isolated examplesof non-cooperation, the people atthe NC Division of Public Healthresponsible for developing policyand supporting local health departmentsin enforcing the ban don’tsee any evidence of a widespreadbreakdown in compliance. In January 2010,the first monththe law went into effect, the statefielded 538 complaints through itscentralized reporting system. Manyof those were addressed througheducation, and county health departmentsfound that most restaurantsand bars quickly came into compliance.By December, the numberof complaints for violations of thesmoking ban had fallen to 37 acrossNorth Carolina’s 100 counties. “We’re looking at 24,000-plusrestaurants and bars across thestate,” said Jim Martin, director ofpolicy and programs for the state’stobacco prevention and controlbranch. “There seems to be goodcompliance. We’re looking at alevel playing field. If a businessis not in compliance, you mighthave a customer who complains, anemployee that complains or anotherbusiness that complains. It seems tobe that not only is there good compliance,but there is strong supportfor the law.”North Carolina is far from uniquein seeking to maintain smoke-freerestaurants and bars, and policymakersavailed themselves of theopportunity to study the laws inseveral other states that crossed thethreshold earlier. North Carolinais among 29 states that have lawson the books maintaining 100-percentsmoke-free restaurants andbars, as of Jan. 2, 2011, accordingto the American NonsmokersRights Foundation. Fifteen otherstates have partial coverage. Onlysix states — Arkansas, Florida,Louisiana, Nevada, Oklahomaand Tennessee — have no ban onsmoking in restaurants and barswhatsoever. North Carolina is theonly state in the old Confederacywith a full smoking ban in effect forrestaurants and bars. It’s hard to find someone able toexplain why members of countryclubs and the employees who workthere are less deserving of protectionfrom secondhand smoke, justifyingan exemption from the ban.“It was just part of the deal wehad to make to get the votes to passthe bill,” Sen. Purcell said. “I thinkthere’s a definite difference betweena private club and a not-for-profitclub that has membership.” Public health advocates acknowledgethe exemption looks a bitunsavory, although they applaud thelegislative result and express hopethat the courts will uphold the constitutionalityof the law. “It certainly has opened up a canof worms,” said Dr. Richard Rosenof Smoke-Free Guilford. “It’s goingto make a lot of money for a lot oflawyers.”Purcell said he doesn’t expect theGeneral Assembly to revisit thelegislation this year for the purposeof closing the loophole forprivate clubs and country clubs.The Republican takeover of bothhouses makes that a risky proposition.Many public health advocateswanted to make all workplacessmoke free when the legislation wasfirst introduced, but most are watchingthe courts with fingers crossedrather than planning short-term legislativefixes.Restricting smoking is an incrementalprocess, said AmericanHeart Association lobbyist BetsyVetter. “As health advocates we didn’tget everything that we wanted,”she said. “We got a chunk. The restaurantsand bars piece is very significant.Expect that someday we’llcome back for more.”