Establishments serving prepared food fall within reach of the smoking ordinance — no ifs, ands or buts.
Fayetteville Police Department administrators have modified the guidelines allowing for the application of the ordinance, doing away with a system based on percentage of sales and reverting instead to restricting any place serving food that has to be "prepared, warmed or cooked."
The new constraint will become effective May 1. "That’s how we will be enforcing the smoking ordinance,"Deputy Chief Greg Tabor said. "If you serve anything beyond customary bar food (pretzels, popcorn, peanuts, etc.), smoking will not be allowed."
Voters in February 2004 approved the ban. The measure prohibited smoking in all enclosed public areas and places of employment in the city, but it included an exemption for bars, creating a gray area for selfproclaimed bars that also served food.
Former Police Chief Rick Hoyt announced in March 2004 that establishments offering meals could be considered bars — and therefore permit smoking — if alcohol sales accounted for at least 70 percent of overall sales.
That criteria remained in place for 22 months until Alligator Ray’s management announced plans to limit the restaurant’s food menu in an effort to fall within the rules that allowed for smoking.
New businesses seeking bar status were given 60 days to provide a notarized statement from an accountant stating sales percentages, but police officials struggled in deciding whether to apply that policy to Alligator Ray’s or have the City Council set laws outlining a conversion route.
They ultimately chose the latter, which led to a lively discussion Feb. 1 during the city’s Ordinance Review Committee meeting. Aldermen responded with criticism of the 70-30 rule and set forth what Mayor Dan Coody construed as a more restricted definition of incidental food allowed at bars.
Police administrators subsequently began revising their enforcement policy. By the first week of March, they decided to discard the 70-30 guideline and replace it with a blanket policy prohibiting any bar from offering food that basically rises above the classification of light snacks not requiring preparation. "On the 70-30, Hoyt and I looked at states like Florida, New York and others that all used the word ‘incidental’ but also had gone to a further description with some sort of split,"Tabor said. "This Alligator Ray’s thing brought the issue up again."
Cambre Horne Brooks, leader of the Tobacco Free Coalition, spoke in the past about the 70-30 rule leading to confusion among patrons about why some establishments weren’t smoke free.
Smoke Free Fayetteville was the group formed to advocate the approval of the smoking ordinance. One of its organizers, Barbara Price Davis, also had expressed disappointment over the percentage rule, claiming it went against the ballot measure approved by voters. She was pleased at the prospect the enforcement policies would change. "That was the intent of the voters,"she said. "That’s what the law says and that’s what we worked on getting passed."
Free Choice Fayetteville countered the Smoke Free drive during the debates. Bob Bova, who served as president of the now defunct organization, considered the latest enforcement change an intention from the beginning, with the proposal from Alligator Ray’s simply used as an excuse to further tighten the ordinance’s grip. "Two years ago we warned the bars and everybody that they were going to come back after them,"Bova said. "Mayor Coody, in my opinion, is using a little bump in the road to get his agenda passed and basically lie to the people of Fayetteville once again.
"To say that a bar can’t serve food at all, that’s ludicrous. Anyone who walks into a bar, even if it serves hamburgers, still knows they’re in a bar. "
Coody responded that he delegated the responsibility of enforcement in February 2004 to Hoyt and the police department and that the current police administration has been and will continue to be in charge of enforcement policies.
"I defer to Chief Johnson and his expertise when it comes to the enforcement of ordinances of this type," Coody said.
The modification could affect up to 15 establishments considered bars under the former guidelines.
Police hand-delivered letters to those businesses and about 25 others regarding the changes, and department officials will host a meeting at 4 p.m. Wednesday at Fayetteville District Court to discuss and clarify the issue.
What remains to be seen is whether the decision will affect the collection of restaurant/bar hybrids that make up a large part of Dickson Street, and if those establishments limiting services could affect the draw to the area.
Ownership at Brewski’s Restaurant and Draft Emporium already have decided to discontinue its food service in favor of still operating a smoking establishment, manager Dave Moser said.
Fayetteville Downtown Partners is among the organizations working for the betterment of downtown/Dickson areas. Its board and staff have facilitated discussions of creating a downtown improvement district and have launched a cultural arts district initiative.
The organization tries to attract people to the downtown area, but how they spend their money and where they visit is based on how owners operate their businesses, executive director Daniel Hintz said.
To Hintz, the smoking ordinance can be grouped among any factor that causes change, and business owners must find ways to adapt and survive.
"If people are going to stop serving food in one place, it creates the ability for people who do want to serve food to stay open later hours," Hintz said."Downtown businesses have to respond to the changing market in some form or fashion. There are certain things that are out of all our hands, but we have to respond the best we can. "
Alligator Ray’s management now is considering its options a second time, but ownership thinks the new definitions of bars and restaurants create a fairer market, manager Ben Hynum said.
Hynum and his peers now are deciding whether to revert back to being exclusively a restaurant; become a bar, which would require a change of liquor license; or establish two businesses, which would require construction and separate licenses, ventilation and computers.
But if either of the last two options is chosen, the establishment may need a waiver from plastic-packaged treats.
"Our peanuts and pretzels are oysters, and we don’t anticipate we’ll lose that," Hynum said."They’re not warmed, prepared or cooked."
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