The exemptions are what bother a Warwick pub owner the most.

12:15 PM EST on Monday, February 28, 2005

BY SCOTT MAYEROWITZ
Journal State House Bureau

Raymond A. Brooks, owner of Picasso's Pizza & Pub in Warwick, is fuming.

He's not so mad about Rhode Island's smoking ban, which takes effect tomorrow and prohibits smoking in most public places, including bars and restaurants such as his.

He's mad about the handful of exemptions.

Some small bars and private nonprofit clubs -- such as the Knights of Columbus hall just across the street from his pizzeria -- have an extra 19 months to go smoke-free.

Journal photo / Connie Grosch

Raymond Brooks, owner of Picasso's in Warwick, says he could live with the new smoking law if everybody had to play by the same rules, but some businesses get an unfair advantage.

Brooks said he could live with the new law if everybody had to play by the same rules, but the ban gives some businesses an unfair advantage.

"Once you change someone's habit and they find another bar stool, you've lost them," he said.

In the final days before the law takes effect, Brooks has surfaced as the figurehead for the opposition. Working against tomorrow's deadline, he has mobilized other bar and restaurant owners to form the Neighborhood Pub Association of Rhode Island, a group dedicated to fighting what it calls inequalities in the new law.

As of the end of last week, Brooks said there were about 70 businesses signed on, each shelling out $250. The group hopes to file a lawsuit as part of an effort to get the exemptions deemed unconstitutional.

"We're in the fourth quarter, and there's about 10 seconds left on the clock. So there's no way in the world that we're going to change legislation," Brooks said in explaining the decision to go to court.

PASSAGE OF the smoking ban did not come easily.

For years, health advocates had been pushing for a statewide prohibition on smoking in public places. But it was not until the state's labor unions and the Rhode Island Tourism and Hospitality Association signed on that momentum built.

Several compromises were still needed for passage.

To appease several members of the House, establishments with class C and class D liquor licenses were allowed to have smoking for an extra 19 months, until Oct. 1, 2006.

The class C and D facilities must each have 10 or fewer employees to be exempt. Class D establishments -- such as a Veterans of Foreign Wars post or Knights of Columbus hall -- are temporarily exempt, so long as they are nonprofit or charitable corporations with a defined membership and "not ordinarily a place of public accommodation."

There are about 35 class C license holders in the state, and about 275 class D facilities. Exactly how many of them would come under the exemption is not clear.

Lawmakers also decided to permanently exempt the state's two gambling parlors -- Newport Grand and Lincoln Park -- as well as cigar and smoking bars.

Representatives of the two gambling facilities testified before the legislature last spring that, when Delaware's smoking ban went into effect in November 2002, the state's gambling facilities saw a 12.4-percent drop in business. Customers decided to go to West Virginia instead, they said.

Rhode Island takes about 60 percent of the revenue from Lincoln Park and Newport Grand -- an estimated $255 million this year -- and legislators were reluctant to risk that source of money.

Newport Grand CEO Diane Hurley also noted, in an interview last week, that Connecticut's two casinos -- Foxwoods and Mohegan Sun -- are exempt from their state's smoking ban because they are on sovereign tribal land.

All the restaurants and clubs at Newport Grand have been smoke-free for a year, Hurley said. The only areas where smoking will be allowed after tomorrow are two video-slot rooms on the second floor and a walk-up concession area there for food and drinks.

Journal photo / Connie Grosch

Eric Gaynor, of Warwick, enjoys a cigarette at Picasso's Pizza & Pub, in Warwick. Gaynor says he isn't happy about the smoking ban that goes into effect tomorrow across Rhode Island.

Lincoln Park spokesman Michael Trainor said that all the restaurants and clubs there are also smoke-free. Smoking is allowed in a few bars and in a spacious video-slot room that runs the length of the track on the first floor and includes a food court and bar. Another first-floor gambling room will remain smoke-free. The second and third floors will be mostly smoke free, but each floor does have a small smoking section.

BROOKS IS worried about the competition, especially from the smaller clubs and bars that are, for now, exempt.

"Even if it's for 18 months, you will not get that customer back," he said.

"A blanket ban would be constitutional. I would not even attempt to fight it in the courts." But instead, he said, "the legislature used its power to create an unfair advantage to like businesses."

The legislation creating the ban includes a clause saying that, if any part of the law is deemed unconstitutional, the rest of the law stands.

Given that, Brooks said, if the court were to declare the exemptions unconstitutional, the ban would then apply to every public location in the state.

Kevin O'Flaherty, director of government relations and advocacy for the American Cancer Society in Rhode Island said there have been many lawsuits against smoking bans in other states.

"But none of them have been successful, because the right of the legislature to protect the health, safety and welfare of its residents is pretty sacrosanct," O'Flaherty said.

However, he said he is not familiar with any lawsuits similar to what Brooks' group is seeking: "a level playing field."

"I think it's a novel approach," O'Flaherty said, "and it might have a better chance of success than saying a smoke-free law isn't fair."

Browse questions and answers about the new smoking ban and secondhand smoke, and find related Web resources, at:

http://projo.com/extra/2005/smokingban/