Signal sent on smoking in bars: Owners sued for unfair practices

The San Diego Union - Tribune; San Diego, Calif.; Feb 24, 2001; Matthew T. Hall;

Abstract:
The report also gave El Cajon the chance to publicize a settlement it recently reached with a local
bar. After seven smoking citations in 15 months, the Lost Dutchman on Greenfield Drive was
slapped with an unfair business practices lawsuit.

Eighty-one percent of the 52 South County bars in Chula Vista, Coronado, Imperial Beach and
National City complied. But only seven of 22 bars in the county's unincorporated areas were
smoke-free, and just five of 14 in El Cajon. East County overall had a 51 percent compliance rate.

 
Full Text:
EL CAJON -- Normally used as leverage against misleading ads and deceptive sales tactics,
California's unfair competition code is being hailed here as a silver bullet in the state's three-year fight
for smoke-free bars.

It's a welcome weapon in East County, where a recent sweep turned up cigarette smokers in one out
of two bars. That's well below the county's 79 percent compliance and the city of San Diego's 86
percent.

Last fall's survey of 334 San Diego County bars was released this month by the American Lung
Association. It lighted a fire under law enforcement in El Cajon and served notice to bar owners
everywhere that it's not just patrons who will be punished when puffing inside.

The report also gave El Cajon the chance to publicize a settlement it recently reached with a local bar.
After seven smoking citations in 15 months, the Lost Dutchman on Greenfield Drive was slapped with
an unfair business practices lawsuit.

Targeting bar owners for stealing business from law-abiding establishments isn't new. In San Francisco,
the city attorney's office did it six times in eight months. Deputy City Attorney Nathan Ballard said each
case settled out of court to the city's satisfaction.

El Cajon became the first city in San Diego County to try this approach when it filed suit against the
Lost Dutchman in June. It argued the bar created an unhealthy business climate in more ways than one
by letting patrons smoke.

The eventual settlement forced the bar owner to pay $6,200 in attorney fees for the city and to ensure
that customers and staff did not smoke inside.

The charge of unfair business practices was dropped from the November settlement. But City Attorney
Morgan Foley said that won't prevent him or other prosecutors from using it again.

"It set a precedent for others to sue," he said. "There was a potential for independent action from other
bar owners. That's what concerned the owners of the Lost Dutchman the most because I suspect they
feared a number of lawsuits."

Dian Kiser oversees BREATH, a statewide project that coordinates smoke-free bar programs from
Sacramento. She said calls from compliant bar owners complaining about neighboring businesses are
getting more common.

"It is unfair for a business to allow a breaking of the law in order to get new business," she said. "And
businesses are becoming more aware there are more vehicles to seek remedy."

The current owner of the Lost Dutchman could not be reached for comment, nor could Christopher
Staffa, who owned the bar when the city sued it.

Staffa's attorney, Marc Kroop, declined to talk about the case, but he did discuss the use of this
particular state code against bar owners.

"I think it's just another weapon in the prosecutor's arsenal, and bar owners need to be wary that it's an
effective tool," he said.

Whether the threat will make a difference in East County, Kroop isn't sure.

"Out there, tobacco's almost more of a vegetable," he said.

Since the smoke-free bar law took effect in 1998, the county Health and Human Services Agency has
registered 3,107 complaints.

Last year, 30, or about one-third of East County's 104 complaints, came from El Cajon, according to
the county Office of Public Health.

"East County has a little bit more of a pioneer spirit," said Michael Carleton, the East County division
head of the District Attorney's Office. "It doesn't like government telling them how they have to live."

Regionally, the north coastal part of the county scored the highest marks in the lung association's study.
Ninety percent of the 39 bars screened in Carlsbad, Encinitas, Oceanside, Solana Beach and Vista
were compliant.

Eighty-one percent of the 52 South County bars in Chula Vista, Coronado, Imperial Beach and
National City complied. But only seven of 22 bars in the county's unincorporated areas were
smoke-free, and just five of 14 in El Cajon. East County overall had a 51 percent compliance rate.

A big issue with the law is enforcement. The state Alcoholic Beverage Control office says it lacks the
money to target smokers in bars. That leaves the patrols to police officers and sheriffs, who privately
say they have larger priorities than enforcing what's not even a misdemeanor.

El Cajon police checked eight of the city's 75 drinking establishments Feb. 16 to make sure they were
smoke-free. This week they targeted four more. All 12 were in compliance, Lt. Larry Wood said.

"We'll be stepping up the enforcement," he said. "And we'll probably resort more to involving the city
attorney and the suits involving the unfair business practices."

Foley, the El Cajon city attorney, said the patrons themselves don't cause the problems.

"Rather the bartenders and the owners allow this to happen," he said.

[Illustration]
1 PIC; Caption: The Lost Dutchman bar in El Cajon was sued for unfair business practices after seven
smoking citations in 15 months.; Credit: John Gibbins / Union-Tribune