ANYONE DESPERATE for a seat at the Alberta Street Pub on a recent Friday evening was in luck.
The bar top was crammed with drinkers. The covered outdoor seating area was full up. However, though the rain had cleared, Alberta Street’s once-popular uncovered smoking patio was completely deserted—bereft of beer and mirth.
Small placards in the middle of the abandoned tables told the tale: “Smoking or vaping (of any product) is no longer permitted anywhere on our patio.”
That’s a message that’s keeping bar owners up at night.
Earlier this year, a change to state administrative rules quietly upended seven-year-old standards for what constitutes an acceptable outdoor smoking area at Oregon bars (and other public places and workplaces in the state).
The change modified what counts as an “enclosed space,” where smoking is prohibited under Oregon’s Indoor Clean Air Act—and rendered an untold number of Portland patios off-limits to smokers in the process. Bar owners, caught off-guard, now argue the change was snuck into a rulemaking process without adequate notice.
Some who’ve already been forced to comply say their businesses are in peril at a time when rising rents are already pushing small businesses asunder. Owners whose illegal patios haven’t been flagged are trying their best to keep a low profile, and dreading the day when a health department employee strolls in with bad news.
“I’m freaking out,” says John Crockett, owner of the Nest on Southeast Belmont, who received notice several weeks ago that his patio no longer satisfied the state’s rules. Since the smoking porch closed, he says, a good chunk of his clientele has migrated elsewhere. “I’m losing hundreds [of dollars] every day. I don’t think I’ll be able to last six months if this keeps up.”
The pinch is being felt all over town.
“As soon as we went non-smoking, the customers started leaving,” says Christopher Gutierrez, co-owner of the Night Light Lounge on Southeast Clinton.
Gutierrez says he was among the first bar owners to get word of the new rules, when a county employee informed him in April that there was a complaint about his patio. He had a choice: Either risk a $500 fine any time someone was spotted puffing, or send his smoking customers elsewhere. Gutierrez estimates his business is down 20 percent ever since.
“We tried to spin it as an upside: ‘Hey, our patio is now non-smoking!’” he says. “It did not work. Our patio is basically unused now.”
Laina Amerson, owner of the Alberta Street Pub, says her late-night business has evaporated since she got word her bar was out of compliance.
“Part of the problem is that we have catered to smokers,” she says. “We’ve lost all of our smoking regulars.”
The changes the state enacted marked a sudden shift for bar owners who may have dumped thousands of dollars into outdoor seating to court a smoking clientele.
Under the new rules [PDF], a patio is deemed unfit for smoking if it’s enclosed by walls on two sides and has a ceiling. That’s a change from a rule in place from 2009 until last December, which said three walls and a ceiling were off limits.
A “wall” under existing regulations, can be many things. It can be made of mesh or latticing and still trigger regulation. It can be short, with an ample gap allowing airflow. And since even patios without ceilings apply, an area could be deemed off limits for smokers if it’s surrounded by three waist-high partitions and nothing more.
Some bar owners the Mercury spoke with about the change wouldn’t go on the record, fearful that their patios would be the next to close. Even some who have been flagged were reticent to be quoted. But, to a person, they all say the regulations came out of the blue.
Public records indicate they have a point.
When the Oregon Health Authority (OHA) announced last year that it was tweaking its administrative rules, it said it was doing so to comply with two recently passed bills—one that regulated e-cigarettes and vape pens, and another allowing food to be served at “certified smoke shops.”
“All the bars were like, ‘Fine, we don’t need to contest this at all,’” said one Portland bar owner who asked not to be identified.
Minutes [PDF] from a pair of rulemaking meetings last August show bars and restaurants had no representatives in attendance as discussion turned to something besides food and vaping. Committee members wanted to redefine what constituted an “enclosed space” under the rules.
“There will likely be resistance from some business owners, however, this is an opportunity to minimize exposure to secondhand smoke,” the minutes read.
The OHA stands by the rule changes.
“We were responding to concerns by the public and by people enforcing the law,” says Karen Girard, manager of the agency’s Health Promotion and Chronic Disease Prevention Section. “There is no safe level of exposure to second-hand smoke. The surgeon general has been very clear about that.”
And the Multnomah County Health Department cheered the agency on.
“Over the years, our staff has observed a growing number of shelters built for smoking that utilize loopholes in the definitions of what it means to be ‘unenclosed,’” county Environmental Health Services Director Jae Douglas wrote in a December 2015 letter. “Our main concern for this request is that a clear definition will provide a workplace free of tobacco smoke…”
But by any measure, OHA made its intentions opaque to the general public.
An October 2015 notice [PDF] for three meetings on the proposed rule changes specified that they would regulate e-cigarettes and allow food and drink at smoke shops, among other things. But it only vaguely alluded to new rules for patios, saying the change “amends and adds definitions…” without any hint of how bars would be affected.
Letters [PDF] the OHA sent to Oregon liquor licensees in December were even cagier, only mentioning new regulations on vape pens.
The result: The new rules went into effect in January, and confusion and panic has reigned since.
Bar owners “didn’t know about it,” says Erik Vidstrand, a county tobacco program specialist who enforces state smoking rules at local bars. “A lot of them don’t understand it.”
It’s not just a lack of understanding or that the changes came as a complete surprise, bar owners say. The state’s complaint-based enforcement of the new rules has led to an uneven playing field. Some bars have had their patios shuttered, while similarly illegal patios elsewhere remain cloudy and packed.
Owners are hoping to fight back. Crockett, of the Nest, has met with other bars and is researching attorneys for potential legal action. Others say they’ve contacted their elected officials, or are marshaling their own lawyers.
No one’s sure what happens next—only that something has to change.
“I am not going to lose my bar over this,” Crockett says. “That’s the whole reason we have a patio. Who else is going to sit out there in the friggin’ winter?”
The pub owners would do better for themselves and their clientele to call for a ban of all smoking on patios. If they have the space, they can make them comfy in the winter, like most do, this time for lovely smoke-free environment. If all the pub/restaurant patios were smoke-free, they’d get a lot more patrons. Smokers are a minority. Even know, if they have comfy outdoor patios and the word gets out that they’re smoke-free, those of us who make up the majority will be more than happy to come. Finally, Alberta Street Pub is smoke-free outside!!
This regulation closes a “loophole” of allowing smoking in enclosed spaces (most are clearly within 10 feet of the main building – which is not legal anyway). I understand some of the bar owners being unhappy about the notification process and panic stricken about the short term loss of business. But as we know from past research on implementing the indoor clean air act, businesses weather this change and stay in business, new non-smoking customers eventually replace those that smoke (presuming they want to sit outside in the bad weather); workers and customers alike are protected from second hand smoke, and life goes on. In so far as people who smoke want to enjoy social smoking – they are being squeezed by regulations about where they can do it – but ultimately the rights of non-smokers to breathe safe air in public spaces have to be protected.
I see a boom in Portland’s speakeasy culture.
It us unfortunate they were so sneaky about this.
Smoking is legal. People are forever going to do it. If this law has effectively outlawed almost every smoking area in the state, which maybe it has, or has tried to at least, what it does is force all the smokers onto the sidewalks. There’s no place else for them to go. So now you’ve got children and pregnant women and babies in strollers passing through smoking areas, and you’ve prioritized the rights of the bar employees to breathe clean air over the rights of those folks. Does that make sense? Not to me.
Second hand smoke is 96% water vapor and air chemical composition SG report 1989 page 80!
The reason for the bans were never about health but the age old movement of prohibition this way they kill smoking and alcohol with the same law! That’s what the plan was all along just like before in 1900-1923 when 43 states had smoking bans nearly all repealed by 1917 then came 1919 and alcohol prohibition
A smoking area that is outside, and has lattice work that goes waist high on two sides is not exposing anyone to second hand smoke. I am a non smoker and appreciate that there is no smoking inside, especially at music venues where I previously did not have a choice but to be exposed to secondhand smoke, but really no one wants this ridiculousness except a small number of anti smoking activists. This clearly is not about the health of non-smokers.
Studies show that smoking bans reduce smoking, which is good for not only the smokers but everyone else who has to breathe. You can drink alcohol, shoot heroin, snort coke, eat meat, etc. all you like, and not make others ingest as well. Not so with smoking. When smoking is no longer allowed on restaurant/bar patios, everyone can enjoy them, not just the minority that smoke.
Call those of us who value smoke-free air in public spaces militant, nazis, etc., but many of us non-smokers feel oppressed, disrespected and abused by those into inhaling and burning tobacco and are glad to patronize places that are entirely smoke-free. Like it or not, that’s our future.
I wish that Dirk was as concerned about the health of service industry workers, as he is about the financial health of bars. According to the Oregon Health Authority, 200,000 workers are exposed to secondhand smoke at their workplace, including restaurants/bars with patios and that secondhand smoke kills 650 people a year.
But oh well, bars could lose a few patrons, so let’s allow unwilling exposure to a carcinogen to continue.
I find it a bit hard to believe that second hand smoke is killing 650 oregonians a year. I have known a lot of people who died and the cause of death was never “second hand smoke”. I have never seen an obituary that said the person died of second hand smoke. Can you name a single person killed by second hand outdoor patio smoke el cenicero, perhaps a celebrity? I sure can’t.
@econoline unfortunately, the CDC reports that 2,500,000 have been killed by exposure to secondhand smoke. The CDC also reports that “there is no risk-free level of secondhand smoke exposure; even brief exposure can be harmful to health” http://www.cdc.gov/tobacco/data_statisti….
These are all reasons why the Mercury should be talking about the health benefits of reducing exposure to secondhand smoke, instead of simply letting business owners complain.
If less than half of your friends are smokers, you lead a boring life. If you moralize at your friends to try to get them to stop smoking, you suck.
I don’t smoke. And when at a bar when friends go outside to smoke, sometimes I join them and sometimes I wait for them to come back.
There is a clear distinction between being inside and being outside, and if these busybodies who make arbitrary rules have trouble telling the difference, they should spend 3 hours on a smoking porch during a cold rainy night and see if they can tell the difference between inside and outside.
And there needs to be a level of barrier between what is the bar’s outdoor seating area and what is the rest of outside as there is the whole keeping the liquor away from kids.
But to be clear, I don’t smoke and I really hate the tobacco companies. If all of the executives and scientists working at the tobacco companies all fell into an active volcano, I would not feel bad.
SHS never killed anyone please provide death certificates with cause of death as SHS or for that fact even smoking as they just don’t exist!
SHS is 96% water vapor and air these anti smoking fanatics are insane to even make a claim of harm the smoke won’t even make a fly leave a smokers dinner table!
Because letting individual businesses decide which clientele they want to attract and cater to is just too much freedom for civilians to handle. We, the wise and benevolent government you have elected to control you, have decided. That it is. Trust us.