Wed, Oct 27, 1999
Smoke police bust a defiant Molly
By Keith Bagwell
The Arizona Daily Star
The Tucson Police Department has made Molly G's Restaurant the first to be cited for defying the city's restaurant smoking ban.
Police Lt. Terry Rozema said owner Molly Grezaffi was charged Friday morning when officers visited the eatery at 903 E. Fort Lowell Road and found several diners smoking.
Grezaffi said two officers came into the restaurant just before 7:30 a.m., when about 10 of its 25 to 00 customers were smoking.
"They were a club members," she said. I don't allow anyone in here who isn't a member. We're a private club and exempt from the city ordinance. There's no law against having a private club."
Grezaffi said she sells people memberships in her club for $1 a year and gives them dated membership cards before allowing them to dine.
Rozema said the police, following the direction of City Prosecutor Bill Call, enforced the ordinance at Grezaffi's private club.
A private club is not an excuse to continue smoking in violation of the ordinance," he said.
Restaurant owners can be fined as much as $2,500 for violating the ordinance; the minimum penalty for an owner's first offense is $250.
Call said language in the ordinance, which we into effect Oct. 1, does not mention private clubs, so they are not exempt.
"It defines a restaurant as: 'A facility open for the primary purpose of serving food prepared for consumption, either on or off the premises, to customers for compensation,'" he' said.
"It's my understanding Molly G's serves food to customers and doesn't do it for free - it doesn't have potlucks," Call said.
The ordinance prohibits smoking in restaurants unless it is connect to a fully separate room with its own ventilation system. Restaurant patio smoking must be at least 15 feet from a door or non-smoking tables.
Grezaffi, a smoker, said she intends to defy the ordinance because of her business's privateclub status when she makes an initial appearance on the charge in City Court Nov. 4.
David Anderson, her attorney, said he will argue her private-club claim "right down the line."
He said Call told Grezaff! and others at an Arizona Restaurant Association meeting several months ago that the ordinance might riot apply to private clubs.
Call said he studied the issue and found the ordinance "clearly" applies to private clubs.
Anderson said Arizona law is "very sparse" on what constitutes a private club and what powers governments have to regulate such an entity.
"And I've found nothing in case law on this point," he said. "But I still have, to do more legal research.
Police have not checked out establishments that were private clubs before the ban was enacted because the city has not received any complaints about them.
Rozema said police responding to other restaurants' complaints visited four allegedly non
compliant restaurants Oct. 7, one of them Molly G's. Grezafri was warned at that time, he said.
Rozema said the Bread & Butter Cafe, 4231 E. 22nd St., had banned smoking. Bobo's Restaurant, 2838 E. Grant Road, allowed smoking Oct. 7 but agreed to comply and has been smoke-free since, he said.
Safehouse, 4024 E. Speedway, continued to allow smoking but argued reasonably that it is exempt, Rozema said. "We haven't gone back there and won't cite it until we get the issue resolved," he said.
Safehouse, which sells brewed coffee and pastries, also sells magazines, newspapers and tobacco products, he said.
"We're pretty much just trying to run a business - we're not talking to the media anymore," said a woman who answered Safehouse's telephone yesterday and said her name was Jay
Call said Safehouse could be exempt. "It serves coffee and pastries, and they're both foods ... but we don't know for sure about the Safehouse," he said.
The ordinance states a restaurant is for the primary purpose of serving food, he said. "If 50 percent or more of the Safehouse's sales are coffee and pastries, that certainly would be its primary purpose," Call said.
In the ordinance, the 50 percent standard separates taverns from restaurants:
- If 50 percent or more of a business's revenue comes from food sales, it is a restaurant and the ordinance rules.
- If half or more of a business's revenue comes from alcohol sales, it is a bar and smoking is allowed.
If the Safehouse gets less than 50 percent of its revenue from food sales, its status as a restaurant "would have to be determined in court," Call said.