Businesses Hurt by Smoking Ban in Oshkosh, Wisconsin

Published July 1, 2004

On April 8, voters in Oshkosh, Wisconsin approved a referendum banning smoking in some restaurants and bars. The measure passed by the slimmest of margins: 50.7 percent supported the ban. Owners of area establishments are not happy, and their businesses have been hurt.

Unlike smoking bans adopted in some municipalities, such as Wilmette, Illinois, the ban in Oshkosh does not affect all restaurants and bars. In Oshkosh, if a restaurant or bar earns 70 percent or more of its gross revenues from the sale of alcoholic beverages, the owner may apply for an exemption from the smoking ban by submitting “certifications as to percentages of food sales versus liquor sales.”

“This is Wisconsin,” said Lisa Levine, co-owner since 1985 with her husband Phil of Jeff’s on Rugby, an Oshkosh restaurant and bar, “the home of beer, brats, and cheese. We serve fatty meats and deep fried food at our restaurant. We serve alcohol. So when did we become a health club?

“Am I supposed to tell a customer who orders dessert: You really should have a salad because you have a big [rear]?” Levine asked.

Economic Impact Comes Quickly
Since Jeff’s on Rugby derives less than 70 percent of its gross revenues from alcohol, the establishment will not qualify for an exemption, Levine said. Already, the ban is having a substantial impact on their bottom line. “On Saturday [May 1], we closed down the bar at 10:30 p.m. for the first time in 19 years,” Levine said, adding the last meal was served that night at 8:30 p.m.

The smoking ban has hurt sales of alcoholic beverages, Levine said, just when the business was beginning to recover from the post-9/11 slump that has affected the economy generally. While 85 percent of the establishment’s gross revenues come from food sales, 85 percent of the profits come from liquor sales, Levine said. She has already laid off a part-time waitress and a bartender, and she may lay off a dishwasher. She withdrew $2,500 from the family’s savings to pay bills recently. “If people in this community don’t think this is harming them economically, they’re wrong.”

Levine also said some competing restaurants with bars have been granted exemptions because they certified that food sales are less than 30 percent of their gross revenues. “Creative bookkeeping,” she said.

Lawsuit Ahead?
The ordinance depends heavily on “junk science,” said Levine, that claims second-hand smoke “is a leading cause of premature death and disability among non-smokers.”

Moreover, Levine notes, the ordinance defines “smoking” very broadly, as “inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe, weed, plant, or other combustible substance in any manner or in any form.”

“Does that mean I can’t light candles on tables in the dining room?” she asked.

Levine and other restaurant-bar owners in Oshkosh are considering a legal challenge to the ordinance’s constitutionality. The group met with a lawyer in early May and is raising funds for the effort.

Maureen Martin is senior fellow for legal affairs with The Heartland Institute. Her email address is [email protected].