January 14, 2010
|GSO Gets New Country Club|
At most country clubs, the game of choice is golf and the beverage of choice is something like scotch and fine bourbon. However, at Greensboro's newest country club, the game of choice is pool and the preferred beverage is beer.
Shakespeare asked what's in a name and he did so with the implication that names aren't very important. However, Don Liebes, the owner of Gate City Billiards Country Club – which was, until about four months ago, simply Gate City Billiards Club – had the name of his club legally changed to include "Country Club" in order to allow smoking to continue at his establishment after the state's anti-smoking ordinance kicked in at the beginning of this year.
Liebes said that, when it comes to the new state law, since country clubs are exempt from the smoking ban, and since the term "country club" isn't defined in the law, there's nothing to stop him from turning his place into a country club, changing the name and allowing smoking.
Guilford County health officials don't agree and they've warned him he's in violation of the law, but when a representative of the Guilford County Department of Public Health came out and asked Liebes to sign a document that stated he was in violation of the law, he said he would not sign it until he talked to his attorney. He argued that, since Gate City Billiards is now a country club, it is exempt from the smoking ban and therefore he is, in fact, clearly not in violation of the law.
The club is at 6004 Landmark Center Blvd., near the Wendover Avenue and I-40 intersections and, according to Liebes, about 70 percent of the club's customers smoke and most of his customers don't approve of the ban. Liebes added he doesn't agree with the idea that the state or the county has the right to tell private club owners that they can't allow smoking in the clubs they own.
"I disagree with the whole concept," Liebes said.
He said the state has no place in this matter.
"It should be between me and my customers," he said.
It's not clear where state lawmakers think they get the authority to tell the owner of a privately owned club that his or her club cannot allow smoking. Health officials say they have the right because smoking, and being around those who smoke, are unhealthy activities. However, no one is forced to go to a club where there is smoking going on, and the harmful effects of smoking are extremely well publicized and widely known; and other unhealthy, and even potentially deadly, voluntary activities – such as skydiving, mountain climbing, eating deep-fried Snickers bars at the county fair or ordering a Hardee's 2/3 pound Monster Thickburger with extra mayonnaise – are perfectly legal. But, for some reason, when it comes to smoking and voluntarily being around second-hand smoke, state legislators and local health officials feel as though they have a right to butt in.
Liebes added that he thought the law was unconstitutional. He said his attorney told him that, if it made it to the NC Supreme Court, it would be overturned due to the "equal protection" clause of the law included in the 14th Amendment to the US Constitution, which says that all people have the right to be treated equally by the courts and the law – but this law treats private clubs unfairly, Liebes said.
Private clubs are exempt from the ban and he said the state is using one definition of "private club" for the new rule and another, completely different definition, for other purposes.
For instance, he said, when it comes to the state's ABC laws, his club is clearly defined as a private club and he has to comply with all of the regulations that apply to a private club. However, for the purposes of the anti-smoking ordinance, state officials are trying to say his club is not a private club.
"They define private club completely differently," he said.
Liebes said it certainly isn't practical to take the fight to the NC Supreme Court. He said doing so would cost "a half million dollars" and he wouldn't get anything from a victory other than having the law repealed.
When Guilford County Health Director Merle Green was asked about the Gate City Billiards situation, she said she wasn't aware of the matter, but she said that Liebes is the exception to the rule.
"The public is complying," Green said.
Green said the county doesn't have staff that go around to clubs at night checking on compliance. Instead, she said, the fines are complaint driven and, in cases where those complaints can be verified, fines will be issued.
Liebes said there are several things that can draw an owner a fine, such as having ashtrays out – he does – and not having county-supplied no-smoking signs up – he doesn't.
Green, who isn't an attorney, said there are criteria included in the new law for being a country club – and merely changing a club's name to include "country club" certainly wouldn't be sufficient to exempt a club from the ban.
However, that's just her interpretation of the law.
The clause in question appears to be ambiguous and can be read in two ways. The dispute stems from the language in Section 8a of NC House Bill 2 – "An act to prohibit smoking in certain public places and certain places of employment." The problem results from the part of the law that defines "private club" and also deals with country clubs.
"'Private Club' – A country club or an organization that maintains selective members, is operated by the membership, does not provide food or lodging for pay to anyone who is not a member or a member's guest, and is either incorporated as a non-profit corporation in accordance with Chapter 55A of the General Statues or is exempt from federal income tax under the Internal Revenue Code as defined in G.S.105-130.2(1). For purposes of this Article, private club includes country club."
The question, according to Liebes and his attorney, is whether this passage is saying that a private club is defined as "a country club or, in addition, a club that [meets all of the listed criteria]," or is saying that a country club doesn't have to ban smoking if that country club meets all of the listed criteria.
Liebes said state health officials had come out with a "clarification" of the law and he had been shown the clarification by a county health inspector. However, as he told the inspector, that's not the law – it's just the way some state bureaucrats would like to see the law interpreted.
In fact, months before Liebes changed the name of his club, an interpretation of that section of the new law by the UNC School of Government made Liebes' case perfectly.
A "Frequently Asked Questions" statement, which was put out by the School of Government before the ban went into effect, states: "The law is unclear with respect to country clubs. The term is included in the definition of 'private club' but it is not clear how all of the parts of the definition fit together … one could conclude that either of the following interpretations apply:
"• A country club is exempt if it satisfies all four of the criteria identified above under 'private clubs' or
"• Any country club is exempt (and the term 'country club' is undefined)."
John Blust, a member of the NC House of Representatives who voted against the smoking ban, said that loopholes are often included in state legislation when politicians can't come to an agreement, have made some backroom deal or realize a new law might actually affect their own lives in way they don't like.
Blust said there would no doubt be a lot of club owners across the state who would be examining the wording of the law closely to see if they could find some interpretation as to why they would not have to enforce the ban on their customers.
Guilford County Attorney Mark Payne said the matter may end up on his desk.
"If it's put in front of the county attorney's office – we'll do the best we can," Payne said.
He said the case could end up as a court case or it might just be a matter of going before a judge and requesting a "declaratory judgment," in which case the judge would provide clarification on the meaning of the law.
Payne said ambiguities such as this one are not uncommon at all.
"When you do enforcement, you interpret the law every day," he said.
Liebes said it's too early to know if the case will wind up in court.