Smoke doesn’t always mean illegal smoking, say bar owners

The city will make another blunder if proprietors can still be charged when there’s smoking in their establishments, said Rick Gargner, owner…

The city will make another blunder if proprietors can still be charged when there’s smoking in their establishments, said Rick Gargner, owner of Porter Creek Billiards.

“If (the bylaw) gets rewritten so the owner can be charged because there’s smoke in the air, then they’re basically saying that the owner is still responsible for maintaining the bylaw, and they can’t do that.

“It lacks common sense.”

A city bylaw, which prohibits smoking in public places, like restaurants and bars, was sent back to the rewrite desk after it failed to hold up to scrutiny in Yukon court.

And charges against three offenders — the Capital Hotel, the 98 Hotel and Sam McGee’s Bar and Grill at the 202 Motor Inn — were dropped.

Under the original bylaw, proprietors must ask patrons to butt out and, if they continue smoking, proprietors must report offenders, stop serving the smoker, remove the smoker from the premises and remove ashtrays.

The rewrite was meant to take the onus of enforcement off bar owners.

The simplified rewrite states: “No proprietor shall permit a person to smoke in any building, place or premises referred to in this bylaw.”

It’s “overly simplistic” to say that bylaw officers can come in and smell some smoke and charge a bar owner, said city councillor Mel Stehelin, who owns the 98 Hotel.

“In the case of my premises here, you could have a guy smoking legally in his bedroom, and somebody might smell the smoke and all of a sudden say, ‘yep there’s smoking in that bar’ — well how can they prove it’s in that bar?”

Under the rewrite, hotel owners can choose if individual hotel rooms are smoking or non-smoking.

“It’s similar to just ticketing people for going through a stop sign — you would never show up in court and say, ‘I saw a red truck.’

“You’d have to have the licence plate number of the truck and go through the whole process of making sure you could identify who was driving the truck.

“Which is what bylaw is going to have to do in regard to the smoking, and they’ve always been looking for a lazy way out.”

To make the charges stick in court, bylaw will need names of offenders and proof that they were smoking in a prohibited place, said Stehelin.

Whether a proprietor will be charged under the new bylaw depends on the situation, said bylaw manager John Taylor.

Seeing and smelling smoke in the air “will all be part and parcel of the collection of the evidence to support whatever charge we deem is necessary.

“We’ll be looking for evidence — and that’s just one part of the evidence we’re looking for,” said Taylor.

The city is uncertain just what evidence is needed to convict an offender in the court system.

“There’s going to be a learning curve here,” said Taylor.

After first and second readings next week, the city’s bylaw department will sit down with the city’s lawyer to hammer out the finer details.

Meanwhile, the mere mention of a no-smoking bylaw opens up old wounds for these bar owners, who say the law is bad for business.

“I’m sort of frustrated by it all,” said Stehelin. “I think it’s an adult environment and people should be allowed to make the decision of whether to be in a smoking environment or not.”

“I don’t think the city should have a right to tell a business what they can do inside their business,” said Gargner.

“I know smoking is supposed to be harmful, but in my opinion the people who own the place and the people who go into the place should have the choice of whether they want it or not.”

Stehelin plans to vote against the bylaw again when it comes back to council on Monday, but doubts his opposition will make a difference.

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