Smoking Citations Continue To Decline Despite Strip Club Holdouts

May 27, 2014

Today, Lexington’s decade-old smoking ban is enforced by a handful of health department inspectors, but it took years for the regulation to take hold.

Health inspector Nathan Powell makes the weekly rounds to check for smoking violations
Credit Josh James / WUKY

It’s 7:00 p.m. on a Tuesday.

Health inspectors Barrett Schoeck and Nathan Powell are gearing up to inspect four businesses that are known to be repeat violators of Lexington’s smoking ban. The trouble spots, Powell says, have basically dwindled to just a handful of establishments – all strip clubs.

"We try to not stick out like a sore thumb, but at the same time many of the establishments have posted people outside to kind of give a heads up to the inside crowd these guys are here," he says.

Today, Cowboy’s is on the list.

The inspectors pass beneath cameras on the way in. Doormen greet the pair, who are dressed in regular street cloths, and usher them in with little fanfare. Once inside, however, an announcement goes out reminding patrons that the club is a non-smoking establishment. A bit of show, maybe – and possibly a cue to put out cigarettes.

It’s a scene that repeats itself regularly. And it’s one that often prevents them from writing up a citation.

"I saw the guy with the cigar, but he just had it down," Shoeck says, frustrated, as the two climb back into their SUV. 

That's because they must catch the smokers actually taking a puff.

"It is aggravating, but... our advice from our lawyer was that we need to actually see the person participating in the act of smoking a cigarette," Powell explains.

Luke Mathis, environmental health supervisor with the health department, says Lexington’s ordinance does permit inspectors to cite businesses based on ash trays or other signs of smoking, but the county attorney has found it harder to prosecute without harder evidence.

"They want it to pretty much be a slam dunk case before they take it on," he says.

But he notes that those cases are becoming fewer and fewer. In 2006, when the ban was still relatively young, the department handed out 225 citations and categorized 50 businesses as repeat offenders. Mathis remembers those years as a trial by fire for a health department not accustomed to targeting smokers.

"That first year, first couple years, it was really tough. People would get angry at us. There were a few incidents where our inspectors were followed to their car, heckled," he recalls.

Not to mention the costs to the city…

"It took a lot of time. We actually had to pay staff a lot of overtime as you can imagine. Now were down to once a week and we're about to drop that to once every other week," Mathis says.

Costs for the businesses, on the other hand, were a matter of court judgments. With fines of $100 for a single offense, $250 for the second, and $500 for all violations beyond that, businesses often wound up paying less than they owed.

"When we first started, they would wait until they got five or so $500 ones and then they would take them to court and they would get it down to where they just paid one $500 fine, even though they had maybe ten citations," Shoeck notes, as the two finish their rounds.

It took public buy-in for the law to slowly become engrained in Lexington culture. And every year since, the number of citations has dropped. 2013 saw only 12. Complaints have been hovering around 35 or so for the past two years, but jumped to nearly 50 last year. Still, Mathis says the stats may be approaching their limit.

"We are still seeing a drop. I don't know that we'll ever have a zero citation year, but we're getting closer," he says.

Meanwhile, for state lawmakers pondering a statewide smoking ban similar to Lexington’s ordinance, the question is: If it took the better part of a decade for Lexington to adjust, how long might it take for the entire state?