It cost Emilio Salituro nearly $200,000—his life savings and money borrowed from family—to realize his dream of owning his own restaurant. In January the Burnaby entrepreneur celebrated the first anniversary of Emilio's Place with sales double that of January 1996. February saw a 55% increase. But in almost every month since then, receipts have lagged behind last year's. Mr. Salituro's dream is now endangered—a city bylaw, effective March 1, prohibits Mr. Salituro from offering his customers a smoking section. Even if the restaurateur could fight City Hall, he cannot fight the unelected Workers' Compensation Board (WCB). Two weeks ago, it announced a ban on public smoking effective January 1, 2000—a decision that will devastate thousands of restaurants and bars across the province.

Mr. Salituro is trying as hard as he can to stay afloat. "If anything, my food has gotten better," he brags. He is now open seven days a week instead of six. But many of his former customers are voting with their feet on the smoking ban. "I'm getting customers phoning me up and saying, 'We don't come in your restaurant anymore because my husband needs to have a cigarette with his meal,'" says Mr. Salituro, 28.

His story is a common one among Lower Mainland restaurant owners; several jurisdictions, including Burnaby and Vancouver, permit smoking in bars and pubs, but not restaurants. In less than three years, however, the province's entire hospitality industry will be suffering equally. The WCB, the provincial agency that regulates workplace safety, is imposing a new set of regulations on second-hand smoke, also known as environmental tobacco smoke (ETS).

Employers must "control the exposure of workers" to ETS, either by banning smoking or confining it to a designated smoking room. More important, no employee can be forced to go into a smoke-filled room, except in an emergency. For a restaurateur or pub owner, it means he could spend thousands of dollars building a smoking room, but with no guarantee that a waiter would be allowed to serve the customers inside it. It is, in effect, a province-wide ban on smoking in public, and the strongest move yet against the 30% of the B.C. population that uses tobacco.

The new WCB regulations come into effect for most workplaces on April 15, 1998. But the real crackdown begins on January 1, 2000, the deadline for all public entertainment centres—including bars, restaurants, pubs and casinos—to comply.

To understand the potential economic costs of a province-wide smoking ban, consider what has happened in cities where smoking in restaurants has already been prohibited. Bing Smith, a Coquitlam businessman who supplies coffee and orange juice to restaurants around the province, says he noticed the difference soon after Vancouver became the first to ban smoking in restaurants in May 1996. "It wasn't hard to figure out—gee whiz, Burnaby's doing really well and this one [in Vancouver] is down 20%," he recalls.

So when Burnaby brought in a ban of its own on March 1, Mr. Smith decided to monitor the results. He faxed a simple questionnaire to some of the city's restaurants, asking them how their sales compared to the pre-ban days. The Kingsway branch of the popular chain Earl's said its weekly sales had dropped as much as 24% below the previous year. Down the road, Kamei Sushi estimated its weekly losses at $5,000, largely because Japanese tour buses went elsewhere. Versailles, a steak and lobster house, had to lay off employees, including one who had worked there 16 years.

"Smoking killed my mother, so I'm certainly not going to say smoking's good," admits Mr. Smith. "But right now what they're saying is, '30% of you guys aren't welcome here.' This heavy-handedness—'We're going to tell you what's good for you'—just turned around and destroyed people's business." The industry lobby group, the B.C. Restaurant and Foodservices Association (BCRFA), is challenging the legality of the Vancouver bylaw in B.C. Supreme Court. The case resumes in December.

Some smoking customers have chosen to eat in pubs that serve food or in restaurants in nearby Coquitlam. But others have decided that eating out is not worth the inconvenience. "Certainly, we're forcing people to cocoon," says Richard Floody, president of the Greater Vancouver branch of the BCRFA. "They're going to Blockbuster, they're going to the U-Brew, and then they're going home."

And those smokers who are willing to endure deprivation in public are taking briefer meals and spending less—denied, as they are, the pleasure of a cigarette to go with a cocktail or an after-dinner liqueur. "My dessert sales and my after-dinner drinks have dropped drastically since March," says Mr. Salituro, who estimates that smokers account for 30% to 40% of his clientele and 50% of his sales.

For the moment, his loss is probably another restaurant owner's gain. Along North Road, the boundary between Coquitlam and Burnaby, many restaurants on the Coquitlam side have seen their sales rise as sharply as their neighbours' sales have dropped, Mr. Smith observes. But in the year 2000, customers will not be able to just cross the street for a smoke-friendly establishment. What then?

Geoffrey Howes, who runs three restaurants in Greater Vancouver, predicts that at least 30% of smokers will eat at home instead. That would represent 8% of all potential customers, and possibly more—in a competitive industry that already operates on low margins. For some, it will be the difference between success and failure. Bistro Bistro, a licensed Vancouver eatery, closed its doors October 4 after a post-ban 15% decline in business. "Unfortunately, non-smokers did not replace our customer losses," commented owners Zbigniew Ciura and Richard Ellison.

It is small, independent restaurants who are hurt most by anti-smoking legislation. It was anger from these businessmen that forced Toronto city council to withdraw its bylaw less than a year after implementing it. The first version of the ban—passed in the summer of 1996—was even more Draconian than the WCB regulation or the Vancouver bylaw. It did not even allow a restaurant owner to build a separate, ventilated smoking room if he wished. When hundreds of furious restaurateurs shouted down council members at a public meeting, Toronto council changed the bylaw to allow separate smoking rooms.

That change came into effect March 3, 1997. There was just one problem: virtually no restaurant, big or small, could afford the cost of renovations. Most of the estimates were between $40,000 and $75,000. To complicate matters, alterations were not permitted in heritage buildings. Facing another explosion of outrage, Toronto council backtracked again at the end of March, permitting smoking in 10% to 25% of available space.

The Toronto example has not emboldened the B.C. restaurant industry. Last month, the BCRFA capitulated to the anti-smoking fervour that has captivated Lower Mainland councils. It asked delegates to the Union of B.C. Municipalities (UBCM) convention to urge Health Minister Joy MacPhail to "implement a province-wide phase-out of smoking in licensed hospitality establishments, regardless of their liquor license class, on a timetable established by a joint task force...of each liquor license class and the UBCM." (Municipal leaders did adopt a resolution asking Ms. MacPhail to bring in legislation to "enforce non-smoking in public facilities," including casinos and bingo halls.)

Given the economic power of smokers, why would the restaurant industry ask for a province-wide smoking ban? "Because we're in a box," replies Mr. Howes, the BCRFA's vice-president of government affairs. "We've got this bylaw in Burnaby and in Vancouver which is destroying the restaurant industry...we have to try to somehow get the agenda away from the municipalities." At the very least, he says, provincial legislation would treat all hospitality businesses the same, regardless of their location, or what kind of liquor licence they hold.

To pub owners, however, a smoking ban seems particularly harsh, since their establishments are, by law, restricted to adults. Gordon Card, owner of the Monkey Tree Pub in Victoria, says he would "even post a neon sign on the wall" saying second-hand smoke is hazardous to health—if authorities would allow his customers to make their own smoking decisions. As for protecting his workers from ETS, Mr. Card explains that most of his employees smoke. "That's the reality of the business," he explains.

Mr. Card, who is also president of the Neighbourhood Pub Owners Association, must make the Monkey Tree smoke-free by 1999, because of a ban imposed by the Capital Regional District. "What [the issue] really is here, what I really get mad at and really get pissed off with, is the we all try to run our businesses correctly, and if people didn't like it, they wouldn't come in," he states. "So what do we do? We have a five-foot-two waitress and you have a six-foot-three guy [who smokes]. What is she supposed to do—say, 'I'm sorry, put it out or I'm going to call the smoking police'?"

Other businessmen are fed up with assaults on their property rights. "I want to find a way of making them both [smokers and non-smokers] live in harmony in my restaurant so they both feel comfortable," says Mr. Salituro. "It's ultimately my decision how to increase my sales and how to keep my customers happy." It is not as if the market was not providing freedom of choice: the BCRFA's Floody estimates that 600 establishments in Greater Vancouver went non-smoking voluntarily, before the bylaws took effect.

Now, however, freedom of choice is against the law. By one estimate, some 40% of Vancouver and Burnaby restaurateurs are breaking those laws. Ken Soderman, owner of Winchesters Steakhouse in Burnaby, is one of them. "I normally used to have a crowd that would come in between three and six in the afternoon, sit around and drink and have a snack." But when the smoking ban came in, "Those guys hit the road. I still haven't seen them."

After two weeks of playing by the rules, Mr. Soderman gave up and reinstated smoking in 25% of his eatery. "If I didn't allow it, I'd be out of business—and there is absolutely no question about that," says the 20-year restaurant veteran. As it is, he has still seen sales decline 10%, about $100,000. Mr. Soderman has received one hand-delivered letter from the City of Burnaby threatening to "proceed with court action" against him. So far, however, no action has been taken. "I said, 'Thanks, see you later. When you start paying my bills and my employees, then you can tell me how to run my business.'"

And that is precisely the point, says Stephen Harper, vice-president of the National Citizens' Coalition. It does not matter if the ban comes from elected politicians or from an unelected bureaucracy such as the WCB. "This is a private matter," Mr. Harper declares, adding that the WCB edict is "another attempt to prohibit smoking by non-prohibition means."

The smoking ban may be the broadest interpretation yet of the WCB's legal right to makes rules "for the prevention of injuries and occupational diseases" in the workplace. Mr. Harper argues it is "obviously dangerous" when an unelected body assumes such power over an issue that affects so many people. Yet he is not particularly surprised. "Every one of these agencies," he says, "seems to think it's a world government in itself."

The WCB decision to trample property rights was based on the belief that second-hand smoke is seriously harmful, and therefore a public health issue. And if it is harmful to customers eating in a restaurant, the logic goes, it must be downright dangerous to the people who serve them—so the WCB intervenes. "Our area of jurisdiction is to ensure workers are not exposed to hazards that affect their health and safety," explains WCB vice-president of prevention Ralph McGinn.

The WCB regulations state that employers may not force employees to work in an indoor area where smoking is allowed. But it is unclear if employees will be allowed to work in a smoking area voluntarily. Mr. McGinn says he thinks the WCB could step in and force even a willing worker back to smoke-free air. "If they were consistently working in a designated smoking area, we probably would feel [the employer] is not controlling the exposure to a level that's in the best interests of the worker," he says. "I don't think the worker has the choice of saying, 'I don't mind being exposed.'" On the other hand, if the worker does have a choice, employers might be inclined to hire only people who will work in the smoke, since that would give them greater flexibility in staff scheduling.

The question of a worker's right to choose will be irrelevant if the provincial government legislates a complete smoking ban in all public places. After the UBCM endorsed such a ban, Health Minister MacPhail embraced the idea enthusiastically. She has the support of John Millar, the provincial health officer, who called the new WCB rules "an incredible first step."

But despite what anti-smoking activists are saying, the science that "proves" the hazards of second-hand smoke is selective and mendacious. The most frequently cited authority on the subject is the U.S. Environmental Protection Agency (EPA). In 1993, it classified second-hand smoke a "known carcinogen." Dr. Millar says the EPA designation was "hugely influential"; the WCB, for instance, is using it to justify its new regulations.

What the EPA did was examine several available studies on non-smokers who lived with smokers; one major study showing no significant risk from second-hand smoke was ignored. (Even of the 11 studies chosen, only one declared second-hand smoke a significant risk.) A controversial method called "meta-analysis" was then used to arrive at one big result, a process science journalist Michael Fumento has written is frequently like "comparing apples and oranges." The EPA then broke its own rule on the "confidence level"—the scientific rigour—required of its results. All this massaging and fudging brought forth a mouse—a "risk factor" of 1.19 for a non-smoker who had lived with ETS. The risk factor for a non-smoker who had not breathed ETS is 1. For an average smoker, it is 10; for a heavy smoker, 20—for a drinker of chlorinated water it is 1.38 (see chart, page 7).

Any risk factor below two is essentially meaningless, says University of California at Los Angeles epidemiology professor Jim Enstrom. Moreover, Prof. Enstrom adds, the data in the studies are not very reliable because they do not measure a person's direct exposure to a carcinogen. They rely on indirect means, such as a non-smoker's memory of his spouse's smoking history.

In some of the studies, people who are former smokers are actually classified as non-smokers, says American author Jacob Sullum, author of the forthcoming book For Your Own Good: The Anti-Smoking Crusade and the Tyranny of Public Health. "It's well-established that people lie about this," he says. The Congressional Research Service found it was at least possible the ETS-cancer "risk" is largely caused by people misstating their spouse's smoking history, or their own. Similarly, the notion that ETS causes coronary heart disease has also not been proved, says Prof. Enstrom.

But even if an ETS public health risk exists, this hardly excuses the hysteria that has resulted, Mr. Sullum argues. What the anti-smoking lobby has done, he says, is make "false analogies" about second-hand smoke to justify state intervention. Public health officials are wont to compare anti-smoking measures to rules about restaurant cleanliness. Mr. Sullum replies that "The crucial difference is consent. People don't know what's going on in the kitchen. But when you go into a restaurant and they say smoking or non-smoking, you know damn well there's smoking there."

The WCB's Mr. McGinn also uses analogies. He compares the new smoke regulations with the rule that workers must wear ear protection if the noise level is above 83 decibels. But there is a difference: wearing earmuffs will not prevent a jackhammer operator from doing his job. The WCB regulations on second-hand smoke might well prevent a waiter from serving a customer who is smoking.

Mr. McGinn rejects the charge the WCB is acting dictatorially. "The [draft regulations] have been widely circulated in key employer associations and went out to public hearings," he says. "It's not like we're trying to spring a surprise on anybody."

Given the near-impossibility of forcing change on an unelected body such as the WCB, the future looks bleak for public smoking in B.C. Pub owner Card, however, does see one glimmer of hope in the WCB edict: a vague clause that says employers can use "other equally effective means" to limit their employees' exposure to ETS. The Monkey Tree already has a ventilation system that changes the air every two minutes. Mr. Card says even better technology is now available to bring in even more outdoor air. That may be more practical for someone on the mild coast than in the Interior, since all the fresh air would have to be heated in winter and cooled in summer.

The other possibility is that those in the hospitality business will simply defy the WCB rules, just as they are defying the no-smoking bylaws in Vancouver and Burnaby. Scott McCloy, the WCB's communications manager, says the ETS regulations will be enforced on a complaint basis. Any business flouting the rules will be given a chance to comply first. Persistent offenders face fines of $1,500 to $4,000, depending on the size of the business. The WCB also has the power to shut down businesses that violate health and safety regulations, though Mr. McCloy says it is extremely unlikely the board would go that far over smoking because ETS is "a long-term risk as opposed to an imminent risk." The maximum fine for breaking the Vancouver no-smoking bylaw is $2,000.

Industry rep Howes is convinced that given enough civil disobedience the WCB will be revealed as a paper tiger. "The Workers' Compensation Board can jump up and down, but I don't think there will be enough will."

—Derek DeCloet

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