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S.C. Supreme Court upholds local smoking bans
By Molly Parker
Staff Writer
In mid-December, an eight-piece eclectic band carried Bert’s Bar into the afterlife while a black casket collected dollar bills for the waitstaff.
It was the last night for the blue-collar bar that was a mainstay of Sullivan’s Island for more than two decades. And it was packed, inside and out.
All the smokers, though, puffed away just beyond the doors, a point of contention that had driven Bert’s owner, Tim Runyan, to sue the city for passing an ordinance in May 2006 banning tobacco use in indoor public places.
But on the last day of March, towns like Sullivan’s Island were granted reprieve from this and similar suits as the S.C. Supreme Court upheld municipal smoking bans, ruling in a case specifically brought against the city of Greenville.
Across the state, bars and restaurants have challenged cities that have snuffed out indoor smoking, arguing the state’s Clean Indoor Air Act preempts local laws, though for most, the rub comes down to an underlying belief that the government should butt out of their business.
Runyan claims the smoking ban helped drive his business into the ground, even though it wasn’t the only change delivered to him that year.
In September 2006, the building’s owner, pharmacist Bert Wurthmann, passed away and the lease agreement became a source of contention between Runyan and Wurthmann’s children.
More bans likely ahead
Dan Carrigan, executive director of the Charleston-based Smoke-Free Action Network, said he doesn’t buy the argument from bar owners that smoking bans ruin their livelihood.
Downtown Charleston’s nightlife is still thriving, he noted, even though the city went smoke-free in July.
“This really frees the hands of local governments to protect the citizens in the way that the Surgeon General recommends,” he said, “which is that there is no safe level of exposure to secondhand smoke.”
Municipalities that may have been concerned about legal entanglement, he said, may now look to pass ordinances given the all-clear from the S.C. Supreme Court.
Justice John Waller, in delivering the court’s opinion, wrote: “The city (of Greenville) argues the ordinance is not preempted by state law and is consistent with both the Constitution and the general law of the state. We agree.”
“This will absolutely encourage more laws,” Carrigan said.
Locally, Sullivan’s Island, Charleston and Mount Pleasant already have smoking bans on the books.
Shortly after the opinion was delivered, North Charleston Councilman Bob King sent a letter to the mayor asking him to put a smoking ban on the agenda for council discussion.
“It’s a quality of life issue and a health issue,” King said. “What I think we need to do is discuss it, first of all. I’m just trying to get it to the table.”
King said he believes the council is roughly split on the issue.
Mayor Keith Summey said he does not support a smoking ban, but will place it on the May agenda for discussion.
“I believe local businesses have a right to determine things for themselves,” he said. “It’s just a belief in my consciousness that I have.
“Every time you look around something new is dangerous for you—Oriental food, it’s dangerous, let’s ban it. I just think people have to make those decisions. Smoking is hazardous. So is drinking. I lost a sister to a drunk driver, but I still don’t think it’s government’s place.”
Paul Freeman, manager of the Palmetto Pub & Brew House on Ashley Phosphate Road in North Charleston, said he’s concerned about losing business if the city passes a ban.
“I don’t smoke, but if people want to they should go ahead,” he said.
‘Big blow’
Paul Dominick, an attorney with Nexsen Pruet, represented Runyan, the then-owner of Bert’s, in his case against Sullivan’s Island, and several other bar owners in a suit against Charleston.
“It was a big blow to our case,” Dominick said of the high court’s ruling.
His clients also were fighting the fact that both ordinances brought criminal charges against violators. But leaders in both cities have said they will rewrite the ordinances to put them in line with Greenville’s fines.
The Upstate city charges individual violators up to $50, businesses $100 for a first offense and $200 for a second offense. A business that is a repeat offender could be declared a public nuisance and be shut down, the ordinance reads.
“It’s not illegal to smoke cigarettes so you can’t haul someone off to jail for it,” he said. “But if they change that, we probably don’t have much of a case.”
Mike Tronoski, owner of Moe’s Crosstown Tavern and Moe’s Downtown Tavern, said Charleston’s smoking ban has had little impact on his two bars. If anything, it’s increased the flow of patrons at Moe’s Crosstown, a neighborhood bar on Rutledge Avenue.
“We had people who wouldn’t come in because it was so smoky,” he said.
The ban, however, has created a different challenge for bar owners. Unless the establishment has a designated outdoor smoking area, most bar-goers who smoke have to step outside on the sidewalk for a nicotine fix. That can be a headache during busy times when bouncers are checking IDs and collecting cover charges.
“The problem is controlling people going inside and out and making sure they leave their drink inside when they step outside for a smoke,” Tronoski said.
Molly Parker is a staff writer at the Business Journal. E-mail her at mparker@scbiznews.com.
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