Will Germany's Constitutional Court Overturn Smoking Ban?
By Dietmar Hipp
Germany's Constitutional Court is due to consider this week three complaints put forward against the country's smoking ban by bar owners. The court may well rule that smoking should once again be allowed in small bars and discos.
The walls are covered with posters of Janis Joplin, Jim Morrison and Johnny Cash, the ads are for whisky, vodka and tequila, the music coming from the loudspeakers is by Cat Stevens, Jethro Tull and Blue Öyster Cult, and clouds of cigarette smoke float through the room.
Sylvia Thimm, 45, has been the owner of Doors, a bar in Berlin's fashionable Prenzlauer Berg neighborhood, for the past six years. She is proud of her dimly lit haven. "I'm not just selling beer here," she says. "I'm selling an attitude to life."
But Thimm fears that all of that could soon end. Seventy percent of her patrons are smokers, and in Berlin, smoking is banned (more...) in all bars that have no separate room for smokers. Thimm is still allowing smokers to enjoy their habit in her 34-square-meter (366-square-foot) bar, and fines are not yet being handed out to violators in Berlin. But all of that will change on July 1, when the grace period for enforcement of the city's new anti-smoking law comes to an end.
Many of her patrons have indicated that if they aren't even allowed to smoke at Doors, they'll stay at home or go someplace else. Thimm still doesn't know what she'll do when that happens. "Then I'll have to come up with a Plan B," she says. "I'll probably have to look for a different job."
But because she likes her current occupation, Thimm has taken it upon herself to challenge Berlin's smoking ban before Germany's Federal Constitutional Court. The court's decision could prove to be the salvation of Thimm's pub. This Wednesday, the justices in the southwestern city of Karlsruhe will hear three out of roughly 30 pending constitutional complaints regarding smoking bans. Silvia Thimm's is one of them.
Hans-Jürgen Papier, the Constitutional Court's chief justice, recently indicated that the public can expect, by early August at the latest, a substantial ruling that will "fairly comprehensively clarify" the issues that have been raised. The intention is to provide legal certainty throughout Germany.
This is what happens when Germany's 16 federal states impose socially controversial rules on issues ranging from regulations on attack dogs to university tuition and now smoking bans. Almost every state decides on its own individual solution to the issue so that, in the end, it is left up to the Constitutional Court to establish a modicum of legal uniformity and clarity.
There are already strong indications that smoking bans which make no exceptions for single-room bars and clubs will hardly stand up to the Karlsruhe court's scrutiny. The justices certainly must have their reasons for having requested roughly 50 position statements from state governments and state parliaments, and from consumer, industry and health organizations. Moreover, it is surely no coincidence that the court has selected three complaints that are all directed against the absence of exceptions to smoking bans.
In most states except Bavaria, bar and restaurant owners with multiple rooms in their establishments can declare one room a smoking area. In principle, however, bars with only one room must ban smoking completely in their interior.
Forcing her patrons to smoke outside is not a solution for Thimm. Her bar is busy from 8 p.m. until the early morning hours, or until her last guests decide to go home. "If they start smoking outside after 11 p.m., the neighbors will protest."
Berlin's Prenzlauer Berg neighborhood is becoming increasingly gentrified, which is bad news for some long-established nightspots. "Bars that have been around for more than 20 years are now closing their doors," says Thimm, who grew up in the area when it was still part of the capital of East Germany. According to Thimm, the smoking ban is the "nail in the coffin" for the traditional bars that have managed to stay afloat until now.
Cash-Flow Problems
Uli Neu owns Pfauen, a bar in the historic center of Tübingen, a university town near Stuttgart. His complaint is another of the three selected by the Constitutional Court. He has been struggling with the effects of the smoking ban for almost a year now. When the ban was passed in his state, Baden-Württemberg, Neu's turnover dropped by some 30 percent. "It happened abruptly on Aug. 1," he says, adding that he barely manages to survive today. He says that the only reason he is able to keep the bar open is that his landlord "doesn't come knocking on my door the minute I run into cash-flow problems."
According to the results of surveys of their membership conducted by the German Association of Hotels and Restaurants (DEHOGA), Neu's dilemma is not an isolated case. One-fifth of all bar and restaurant owners nationwide complain that their sales have declined by 20 percent or more since smoking bans were introduced.
In the state of Hesse, for example, single-room establishments suffered an average 31-percent decline in sales, while one in five have lost at least 50 percent of their business. In the southwestern state of Baden-Württemberg, more than half of all owners of small bars and restaurants are worried about their ability to stay in business. In response to an inquiry from the Constitutional Court, the Federal Office of Statistics found that although "establishments primarily selling beverages" also saw declines in sales in late 2007 in states that had no smoking bans at the time, they were not as substantial as the drop in sales in states with bans.
Neu has been running his bar, popular with students and Tübingen locals, for the past 23 years. Pfauen is open seven days a week, and Neu spends 60 hours a week working there, either behind the bar or in the kitchen, where he prepares stews and the Alsatian pizza known as Flammkuchen to serve as bar food. In the past, Neu hired students to help out in the bar every day, but he has had to reduce his employees' total weekly hours from 80 to 40. He now runs the bar on his own from Sundays to Wednesdays.
Ironically, Neu had a relatively powerful ventilation system installed in his bar 10 years ago. Nowadays his sales suffer because guests are constantly going outside to smoke. "And if they're standing outside," says Neu, "they're not drinking beer." Unlike some other bar and restaurant owners in Tübingen, Neu doesn't turn a blind eye to regulars breaking the rules. "I may be filing a complaint against the law," he says. "But as long as it's in effect I'm going to abide by it."
The third case coming before the Constitutional Court relates to Musikpark, a discotheque in the city of Heilbronn north of Stuttgart, where the smoking ban seems especially absurd.
In four states -- Baden-Württemberg, Brandenburg, Saxony and Saxony-Anhalt -- patrons of a discotheque wishing to smoke are required to go outside even if the club has several rooms. In those states, bars and restaurants are permitted to have designated smoking areas, but discotheques are not.
Paradoxically, large discos like Musikpark are ideally suited for having separate smoking areas. At Musikpark, a glass-walled lounge above the main dancefloor is already practically hermetically sealed. Nonsmokers would not even have to walk through smoky rooms, and smokers could keep an eye on the nonsmoking section at all times.
Wolfgang Wirsing, Musikpark's manager, has trouble understanding the peculiar exception for discotheques. "They even allow smoking in beer tents, where there are kids and there is absolutely no ventilation."
Musikpark, on the other hand, doesn't allow anyone under 18 to walk in the door, and the club's ventilation system is twice as powerful as required by law for discos. The entire interior air can be replaced about 15 times an hour. "If we turn up the ventilation system all the way," says Wirsing, pointing to the artificial fog in the middle of the dance floor, "that'll be gone in 20 seconds."
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Since last fall, the club, which Wirsing describes as a "total nighttime experience," has seen only 1,500 people come through its doors on a typical weekend instead of the usual 2,200. Turnover has dropped by about 30 percent as a result.
The dance club is no longer open on Thursdays, except during holiday periods, and on Fridays and Saturdays two rooms are now closed. Ten full-time employees have been let go. They now work for the club on a part-time basis.
Wirsing and his business partners operate more than 40 discotheques throughout Germany, Austria and Switzerland, which generate total annual sales of about €40 million ($63 million). In those discos with inside smoking sections, says Wirsing, sales have declined by no more than 20 percent.
Oddly enough, Wirsing's smallest establishment, a club in the Bavarian town of Moosburg an der Isar, is now one of his most successful. Thanks to a special provision of Bavaria's anti-smoking law, the disco is now an official smokers' club, with more than 6,000 registered members. The disco in Heilbronn, on the other hand, is already "on shaky ground," says Wirsing.
The justices in Karlsruhe have already shown that they have special reservations about a general smoking ban in discotheques. For example, they want the state of Baden-Württemberg to explain why there is no exception for discos that do not allow patrons under 18 through their doors. They also want to know whether the state can provide them with information on why it ought not to be possible to completely seal off smoking rooms from other rooms in discotheques, especially since this does not appear to present a problem in bars and restaurants. So far the attorneys for the state government have been elusive in responding to the court's requests.
In the end, Baden-Württemberg officials will have trouble coming up with convincing answers to the high court's questions. Club manager Wirsing says that he can demonstrate that dance clubs elsewhere have not had any problems with separate smoking sections. In the disco he runs in the eastern city of Erfurt, for example, he plans to install a comfortable smoking lounge in July, when the state's smoking ban takes effect. The owner of the building, and Wirsing's landlord, is the state of Thuringia.
http://www.spiegel.de
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