smoke-free restaurants and bars

J. Bradley Smith of Arnold & Smith, PLLC answers the question “What is the difference between a misdemeanor and a felony?”

Mecklenburg County wants to ban cigarette smoking, chewing tobacco and electronic cigarettes on public lands, including golf courses, greenways and parks. It lacks the legal authority to prohibit products that are not “lighted” cigarettes, cigars, pipes, “or other lighted tobacco product[s].” That is because Article 23 of Chapter 130A of the North Carolina General Statutes—the law from which the county derives its authority to regulate smoking—does not give the county the power to regulate products that are not “lighted.”

The county still wants to move forward with the ban. The initiative is being spearheaded by Mecklenburg County Health Director Marcus Plescia. He said smoking is Mecklenburg County’s greatest health hazard. County commissioners will vote on the ban on Sept. 17.

Plescia said the County would enforce the ban by spending $100,000 to $200,000 on signs that would “make it clear where you can smoke and where you cannot smoke—people will follow the rules.”

I am a criminal defense attorney, and my professional experience tells me many people will not follow the rules. Many people will smoke, chew tobacco and use electronic cigarettes in prohibited spaces, even if commissioners pass their ordinances.

Then what happens? North Carolina’s anti-smoking law provides that violators shall bear “no consequence other than payment” of a 50-dollar fine. I believe offenders will still end up with criminal charges as a result of the ban.

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I talk to the police?”

Smoking outside is not far enough to health officials in Mecklenburg County. They want smokers to quit their habit altogether on any government-owned grounds. They also want to ban chewing tobacco and electronic cigarettes because, they say, they want to send a message to kids that smoking is not cool.

The legislature held public hearings five years ago as it debated a smoking ban in bars and restaurants in the state. The Tar Heel State, through its North Carolina Department of Health and Human Services, considers smoking a health hazard. It also reports that secondhand smoke increases nonsmokers’ risks of developing lung cancer and heart disease, and can cause asthma in children or trigger asthma or heart attacks.

The Smoke-Free Restaurants and Bars Law became effective on January 2, 2010. It requires enclosed areas of nearly all restaurants and bars in the state to be smoke free. Smoking is also banned in enclosed areas of hotels, motels and inns if food and drinks are served. Like many laws, The Smoke-Free Restaurants and Bars Law does more than its title portends. It gives local governments the authority to place greater restrictions or prohibitions on smoking than are found in state law.

Local governments can restrict or prohibit smoking in “unenclosed areas owned, leased, or occupied by the local government,” in any passenger-carrying vehicles used by government, and in enclosed areas used by the public. Aside from a few narrow exceptions, the only places local governments cannot restrict or prohibit smoking are in people’s private cars and homes.

The effects The Smoke-Free Restaurants and Bars Law are being felt, according to Cynthia Hallett, the Executive Director of Americans for Nonsmokers’ Rights. She said visits to North Carolina emergency rooms for heart attacks have dropped 21-percent since the law took effect. Thousands of people have avoided heart attacks because of the law, she said.

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