Tacoma tries to douse cigar smoking lounge

He's an outlaw who endangers the public health.

Or he's a lone voice defending the right of consenting adults to privately enjoy the occasional fine cigar.

Either way, he has been served.

The Tacoma Pierce County Health Department on Monday hand-delivered a notice to Paul Mackay, the owner of Tacoma's upscale El Gaucho, ordering that he no longer allow smoking in the VIP Lounge of his Pacific Avenue restaurant.

Mackay reopened the room in mid-February, after spending $15,000 on renovations. It had been built as a cigar lounge at an original cost of $100,000, and it closed in 2005 after a state law banned smoking in public places. A month ago, Mackay said he believed his VIP Lounge met all criteria in the law.

The health agency disagrees.

"We took a look at their facilities, and they're clearly in violation," said Joby Winans, the department's public information officer, on Tuesday.

The "notice of violation," she said, allows El Gaucho five business days to stop allowing patrons to smoke on the premises.

Two particular violations are the thrust of the order, she said. First, she said, employees of El Gaucho serve drinks and food in the lounge. Also, the public is allowed to smoke in the lounge.

Both acts are prohibited by the law - RCW 70.160 - that was enacted after an initiative campaign to ban smoking in public places.

After an appropriate warning, the statute allows a fine of $100 for every day smokers violate the law. Mackay denies the law is being broken.

Last month, he said that he had contacted his attorneys and asked them to find a way for the restaurant to both to follow the law and allow patrons to smoke cigars.

"Here we are trying to stay alive, and they keep dumping new rules, regulations and taxes on us. I looked at it; we rolled over, and it's not that strong of a law," he said. "There is a crack that goes right through it. We ended up with attorneys, structured a walk through the maze of the law, found that crack and wove through it."

Mackay said this week that no employees serve customers in the lounge and that those customers are invited guests, not members of the public.

"We don't have employees there," he said. "We have three people who own the business."

The invited VIPs, he said, are "people who eat dinner with us."

"If everybody rolls over every time somebody lays on them, the bureaucrats will take care of everything," he said this week.

He emphasized that he will fight the violation and any subsequent orders.

"If they can prove to me I'm wrong, I'm wrong. If they can't, I'm right," he said.

Mackay said customers at the lounge- where cigars, food and beverages are sold - were happy when the lounge reopened.

"They love it," he said. "They love sitting there and conversing with each other and smoking a cigar. It's a nice thing we're doing for the community. We're taking those guys who smoke cigars at home away from the house. We're doing it for the children."

Winans said the health department learned about the alleged violation in a newspaper report.

Since 2005, when the anti-smoking law went into effect, the department has received about 500 complaints about smoking in public, she said.

Most of the complaints focused on people smoking within 25 feet of a doorway, she said.

She was aware of no facility, such as a restaurant or bar, that since 2005 has legally allowed smokers to smoke within public facilities in Pierce County.

At least one other facility in the state - Frankie's Sports Bar in Olympia - allows customers to smoke.

According to Art Starry, environmental health division director for Thurston County Public Health and Social Service, Frankie's established a well-ventilated private club on the second floor of its facility. Food and beverages in the club are served by volunteers rather than employees.

"They were able to show us how they could meet the law," Starry said Tuesday. "They were able to provide documentation. It met the letter of the law."

Based on the documentation, he said, his agency "will not take action."

Frankie's has been operating with smokers since July 2008.

In Pierce County, however, the battle has only just been joined.

"We are assuming they will respond, and then we'll take a look at however they respond. We'll do an assessment," said Winans, of the county health department.

"We're trying to make sure people are healthy," she said. "That means if they have employees, or the public is allowed, we're going to follow up on that act.

"We're concerned about the public health. The public said to us, to public health departments, you're the ones who need to carry out this law. We took a look at their facilities, and they're clearly in violation. They have five working days to respond."

---

Information from: The News Tribune, http://www.thenewstribune.com