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Netherlands' 'little brown bars' buck antismoking regulations

Small bar owners win court cases against government to allow for public smoking again as an alarmed health ministry appeals.

Smokers have found some friendly legislative ground in the Netherlands.

A series of district court decisions, one most recently handed down in July, has partially rolled back a 2008 smoking ban, allowing customers in thousands of small bars to once again light up at their barstools.

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Removing ashtrays from bar counters has become standard practice in the West in recent years, as governments from both sides of the Atlantic seek to shield citizens from the health hazards of smoke.

The decisions were made in favor of a beloved Dutch institution, the "bruin cafe," or brown bar.

Dutch cities are dotted with these hole-in-the-wall bars, often run by an individual or small group of owners who have no need to hire employees. They are engines of local gossip and connection. Popular lore has it that the "brown bar" moniker was earned due to walls stained by layers of tobacco smoke.

The legal reasoning behind lifting the ban was that, since these bars don't have employees, no one is being involuntarily put at risk by exposure to smoke.

The government, meanwhile, has appealed to the Supreme Court.

An association representing these small bar owners isn't resting on its laurels or waiting to find out the results of the Supreme Court case.

Instead, they've filed a class-action lawsuit against the department of health, saying the smoking ban – which they argue shifted customers to larger establishments – took money out of their pockets.

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"They [the department] have to pay something," says Ton Wurtz, spokesman for Red de Kleine Horeca-ondernemer, an association of 1,200 small bars that is fighting the smoking ban. He says current rulings show the law was illegal and that compensation should be forthcoming.

No Exceptions

The Netherlands has long had a law banning workplace smoking on its books. But that law made an exception for bars and restaurants – until July 2008. That's when health minister Ab Klink issued new regulations that toughened standards while leaving room for establishments to keep their smoking customers happy: They'd be allowed to have smoking sections, as long as they were fully enclosed and separated from a nonsmoking area.

It was that decision that got the brown bars' backs up.

While larger, better capitalized bars adapted to the new law with extensive enclosures – one organization even set up an award to recognize the "most attractive" smoking rooms – the tiny bar owners didn't have the capital, and certainly not the room, to expand. Their customer base started to abandon them, they say.

Then, two brown bars – Cafe Victoria in Breda and De Kachel in Groningen, a college town in the north of the country – beat the ban with separate court cases that were upheld on appeal in different appeals courts on the grounds that the law unfairly targeted smaller businesses.

"The appeals court ... [concluded] there is no juridical basis to forbid smoking in one-man bars," concedes Evert Boerstra, a spokesperson for the public prosecutor in The Hague.

For now, the health ministry is leaving the little bars alone, hoping for a Supreme Court decision in its favor or, perhaps, new legislative solutions to extend its control over public smoking.