Smoking Ban Definition Questioned
City Officials Dicker Over Meaning of 'Incidental'
Last updated Wednesday, February 1, 2006 10:11 PM CST in Front
By Dan Craft
The Morning News
FAYETTEVILLE -- Fayetteville officials knocked the definition of the word "incidental" around Wednesday night, trying to decide the difference between a restaurant and a bar.
Police Chief Frank Johnson asked for clarification of the term after a downtown establishment attempted to change its status from a restaurant to a bar to allow smoking on the premises.
A city smoking ordinance passed in 2004 banned smoking in restaurants and other workplaces, but exempted bars from the ban.
At issue is the definition of a bar, defined in the ordinance as an establishment "devoted primarily to the sale and service of alcoholic beverages for on-premises consumption and where the service of food, if any, is incidental to the consumption of such beverages."
Police have been using a 70-30 ratio to determine bar or restaurant status in the absence of a better definition, Johnson said. A site is considered a bar if alcohol accounts for 70 percent of sales.
Council members balked at setting a percentage in the ordinance, and rejected other, more-specific definitions as well, said Don Marr, a council member.
"We chose purposefully not to go with a percentage: 70-30 would have opened up a ton of issues, and that's why we didn't use it," Marr said. "I understand the police need some sort of gauge, but I find it hard to believe that incidental is too hard to understand."
Mayor Dan Coody, however, said the vagueness of the language leaves police to interpret the law rather than simply enforce it.
"We need some help in clarification," Coody said. "We do want to get away from a percentage. This was the biggest brouhaha in several years when it passed, and we knew we'd find the day when we'd have to re-examine it and clarify if necessary."
Different people will always have differing definitions of the word, and the most accurate assessment should come from the affected businesses, said Robert Rhodes, a council member.
"I think we're the wrong group to make this decision. This conversation will roll better if you include the people it's going to impact," Rhodes said. "They are the ones who can give you the best scenario, the one everybody could live with."
Marr questioned the role of establishments that have menus, but are classified as bars.
"You can get a surf and turf here, but they're exempted as a bar," he said, holding up one menu. "Incidental, to me, means you don't have a children's menu in your bar. Pretzels or a bag of chips, that's incidental."
Many of the establishments in question hold restaurant, on-premises liquor licenses from the state, said Kit Williams, city attorney. The state definitions for restaurants and bars, however, do not match the city's wording.
"We have establishments that represent themselves as restaurants to the state, but turn around and tell the city they're a bar," Williams said. "I don't think it's proper to allow these businesses to talk out of both sides of their mouths like that."
Additional input will be sought by Coody and city administrators.
"We can get more input, but I don't really look for a consensus to come out of that," Williams said. "You won't get everybody holding hands and singing 'Kumbaya' by the end. It will be a tough decision."
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