Up in Smoke: Appellate Court Extinguishes Smoking Appeal

By Teresa Rochester

For the city, it was a clear-cut case of a bar owner violating the California Smoke-Free Workplace Act.

But for Claire Ragge, owner of the Gas Lite Bar on Wilshire Boulevard -- who was convicted and fined $270 last year for letting customers light up in her bar -- the law is confusing and her conviction frustrating.

Last month the Los Angeles County Superior Court sided with the city, rejecting Ragge's appeal that the law was unconstitutionally vague, that there was insufficient evidence to convict her and that the enforcement of the law in a selective manner was unconstitutional.

"I'm very disappointed and my employees were very disappointed when I gave them the news," said Ragge, who bought the bar on Jan.1, 1998, the same day the no-smoking law took effect. "I feel it's a real discredit to our whole system of government."

Ragge was convicted in April 1999, after an undercover city inspector saw customers smoking and using ashtrays provided by the bar, while employees did nothing to stop them.

During the trail, city inspector Teresa Bransfield testified that she went to the bar in early February 1999 for an undercover inspection. According to court documents, Bransfield found four customers smoking in the bar during her 30-minute inspection. At one table a woman smoked several cigarettes, one of which she lit in front of a waiter, who did nothing to discourage her.

Ragge testified that she was not at the bar the night the inspector was there, but that she had directed employees to ask customers not to smoke. If the customer ignored the employee's request and continued to smoke, the employee was not to stop them. Ragge provided ashtrays, she said, out of safety concerns, adding that for a week after the inspection, she stopped giving out ashtrays and had four trash can fires.

"We're not required to do any more than that," Ragge said during the trial. "We're not the enforcing agency. Once we've hung the signs and asked patrons to refrain from smoking, we have done what we're required to do."

The law states that employees take reasonable steps to stop patrons from smoking but not physically eject patrons or do anything that might put workers in physical harm's way. Clear prominent no smoking signs must also be posted at each entrance.

In a letter sent to Ragge several days after the inspection, Bransfield wrote that Gas Lite employees must ask patrons to leave if they refused to stop smoking and the police should be called if the customer kept smoking.

Calling it a conflicting message, Ragge appealed the court's decision saying that the law is vague and that it is enforced in a selective manner.

"It's a very misunderstood law, and a lot of people haven't read it," said Ragge. "My understanding of the law is that I have to put no smoking signs up and ask customers not to smoke. In Santa Monica, they want more than that. They want us to call the police and throw people out. I think the city attorney was out of line telling me I had to do more than I had to do."

The Appellate Court rejected Ragge's claim, writing in its decision that there was no evidence of selective enforcement and that the law "is not so vague that a person of common intelligence must necessarily guess at its meaning and differ as to its application."

In her letter, Bransfield also pointed out that a no smoking sign "is conspicuously posted at the front entrance of your restaurant." At Ragge's trial, Bransfield testified that the sign was faded and not prominently displayed, according to court documents.

During the trial Ragge hauled in the bar's front door to show the court the "no smoking" sign. Santa Monica Deputy City Attorney Adam Radinsky said the door only bolstered his case that Ragge had failed to post a big enough sign.

In its decision, the Appellate Court upheld the city's argument, writing that, "the fact that the appellant failed to post a clear and prominent sign on each entrance of the structure constitutes substantial evidence, in and of itself, to support the judgment."

Ragge also argued in her appeal that she had a First Amendment right to post signs behind the bar and that the prosecution should have been prohibited from arguing that the sign was not in compliance because it had been issued by the Los Angeles Department of Health Services. The Appellate Court, based on its assertion that the sign on Ragge's door was too small and unclear, shot down both arguments.

The Appellate Court found that while Ragge may have a right to post certain signs behind the bar and even though Health Services may have issued her sign, a sufficient "no smoking" on the bar's front door is Ragge's responsibility.

The court also shot down Ragge's assertion that there was insufficient evidence to show she broke the law, arguing that "we view the evidence in the light most favorable to the judgment," according to court documents.

Last week, Ragge said she now asks customers who light up to leave.

"I worked really hard to understand the law and I thought I really did," said Ragge, who required employees to read the law after it went into effect. "Now I'm throwing customers out. The law doesn't specifically say I have to."

Radinsky lauded the decision calling it important for the rights of employees to be free from cigarette smoke in the workplace.

"The state law is clear," Radinsky said in a statement. "Business owners have to take reasonable steps to prevent customers from smoking because of the tremendous health risks to their employees."