Columbia tobacco shop contests smoking ban

Columbia officials want to take a local business to court for violating the city's smoking ban.

The action, if approved by City Council on Wednesday, appears to be the first time a Midlands government has sought to enforce a smoking ban since the state Supreme Court ruled the bans were legal as long as violators were not charged with a crime.

The city's smoking ban prohibits smoking in all workplaces with a few exceptions, including stores that mainly sell tobacco products along with a few other items that are "merely incidental."

The Tobacco Merchant, open since 1997, primarily sells pipes, cigars, cigarettes and other tobacco products. But the store, under new ownership since early 2009, recently installed a bar and has a chalkboard sign out front that reads "Good Smokes Cold Beer."

Owners Bill and Jackie Slicer say the beer they sell at the Bower Parkway shop is incidental to tobacco. City officials disagree.

Acting on complaints called in to the city's smoking hotline, city officials visited the store and said it was a bar, not a tobacco store.

"They had purchased a retail license to be a tobacco shop, and we were not at the time aware that they had any kind of bar activity," said Brenda Kyzer, Columbia's business license administrator. "Their activities since first becoming licensed had changed. And because of the bar environment that now puts them into a category (in which) smoking was not allowed."

Bars fought the city the loudest as city officials crafted a ban on smoking in all workplaces, including bars and restaurants. The ban went into effect in October 2008.

The city's ban exempts retail tobacco stores if they meet three requirements:

- They don't sell food.

- They don't allow anyone in under 18.

- All other products they sell are "merely incidental."

The store meets all those requirements, according to attorney Darryl Smalls, who represents the Slicers.

"We consider the sell of beer and wine incidental to tobacco," Smalls said. "Tobacco products and tobacco outsell anything else at this store."

The city ordinance does not define what makes products "incidental." Kyzer said it did not matter how much beer and wine the Slicers sell - the fact that the store doubles as a bar means it cannot allow smoking.

"It's two different activities. Therefore, we would license them as two different activities," Kyzer said. "Unfortunately one of the activities that is in that place of business falls under the smoking ban ordinance."

Smalls also disputes the city's account of the Slicers changing their business activities. Smalls said when they applied for a business license, they asked to also sell beer and wine.

"There was no intent to deceive the city or anything like that," Smalls said. "The city signed off on it. For now the city to come back and say you can't have smoking in a tobacco retail store is hypocritical and ridiculous. If they want to file a lawsuit, they are going to spend the taxpayers' money."

City Council members enacted the smoking ban in 2008, after the state Supreme Court ruled smoking bans were civil violations, not criminal violations. That meant police officers could not write the tickets, and the city could not arrest anyone for violating the law.

Instead, the city can charge a fine or ask a judge to issue an injunction against the business to force compliance. An injunction is what the city will pursue if City Council approves.

Kyzer said that, since the smoking ordinance went into effect in October 2008, she has received 21 complaints. Each was resolved after city officials visited the business and warned them of being out of compliance.

"Usually, that nips it in the bud," Kyzer said.

Mayor Bob Coble said he was not aware of the situation but promised to "keep an open mind and listen to all the facts."

"We will look very carefully to see if there is a violation," Coble said.

Councilman Kirkman Finlay, who owns Pawley's Front Porch restaurant in Five Points, said the law is always unclear when words like "incidental" are used. He said the simplest way to resolve the dispute is to make changes to the ordinance.

"I think we see a potential loophole in the law, and we need to address it clearly and concretely and address the law, not perhaps the injunction," Finlay said.

The town of Lexington's smoking ban is the toughest in the Midlands, banning outdoor smoking patios and decks, which other communities allow.

Town officials so far have sent initial warnings to two companies about violations, municipal administrator Jim Duckett said.

Like other municipalities, Lexington relies on complaints to enforce the ban.