There's little doubt that making smoking illegal in public places is contentious. Look at California. Not only has the smoking ban in restaurants and bars hit business hard since it was implemented at the start of this year, but enforcing it has been a farce.
Tim Delaney, owner of Delaney's in San Francisco, says that in the first two months of the ban, business at his small neighbourhood tavern was down 20% and he feared he would not survive.
"It was radical for a small place, ‘says Delaney, ‘so I read the law backwards and forwards. The law stipulates that I and my bartenders must tell people that it is illegal to smoke. I am not compelled to phone the police and I can serve them it's the police who must regulate it.'
On this basis, his takings have recovered. Customers who want to smoke do so, and so far only one has been fined.
Ironically, it was an Englishwoman, who had to pay US$77 (£48).
Just how ridiculous it is for the authorities to enforce the ban is illustrated by what happened when Delaney was hauled in front of the health officials.
"They pointed out that customers were smoking in my tavern and asked me whether I was telling people that smoking was illegal. I told them I was and they said ‘that's OK then'," he recalls.
It's an unsatisfactory situation for both sides. It's also one that most people in the hospitality industry in the UK hope will be avoided by the Government when it publishes its White Paper on smoking this summer.
They may be pleasantly surprised. The indications are that the Government will not ban smoking outright, partly because it is trying to distance itself from the "nanny state" image it acquired with the beef-on-the-bone ban. A Department of Health spokesman has suggested the Government will be more concerned with protecting children from the dangers of smoking and passive smoking.
What is certain is that there will be some sort of legislation to give non-smokers more protection in restaurants, pubs and hotels. And because it isn't a straightforward problem, there seems to be agreement among those who will be affected that there must be a workable solution - rather than an extreme one - to best serve the interests of the public and businesses.
Clive Bates, director of Action on Smoking and Health (ASH), believes the Government has three options. First, it could increase the powers of the Health and Safety at Work Act. This discourages smoking in non-public workplaces on the grounds that passive smoking is a health risk, but currently does not make it illegal. Second, it could protect non-smoking customers; and third, it could rule out smoking altogether.
Surprisingly, Bates is not pushing for the latter option, but he does want to see legislation that will protect non-smokers and employees from the hazards of passive smoking.
"We're not foaming at the mouth and demanding a total ban. If you ban it outright you are doing it to protect smokers from themselves, and I am not happy with that," he explains.
Instead, ASH is pushing for consumer choice - rooms set aside for smokers, for example. To protect employees, the organisation would like to see smoking in public places included in the Health and Safety at Work Act.
Bates has not lost hope, even though 60-year-old nurse Sylvia Sparrow recently lost her passive-smoking case. Sparrow claimed she developed asthma after being exposed to elderly residents' cigarette smoke in her job at a nursing home. But there are other cases emerging which Bates hopes will help the issue gain momentum.
Speculating on this summer's White Paper, Bates says: "They may seek a voluntary arrangement with industry to encourage them to provide adequate arrangements for non-smokers."
Ian MacArthur, assistant secretary at the Chartered Institute of Environmental Health (CIEH), is also concerned about the "gross iniquity" of a situation whereby workplace regulations strongly discourage smoking in offices to protect workers, but fail to protect restaurant and bar staff because their place of work is public. The problem is exacerbated, he says, because a ban is difficult to enforce. "It's a wicked problem. We haven't got a solution. We are keen to protect health but are caught in a dichotomy. The evidence is too strong that environmental tobacco does influence health and cause cancer and heart disease," he says.
One argument put forward by more extreme health watchdogs is that most customers want a ban. A Guardian/IMC opinion poll published several months ago found that 73% of respondents approved of smoking bans in the workplace; 64% in restaurants and bars; 80% on transport; and 54% in all public places.
A spokesman for the National Asthma Campaign says it wants the Government to recognise that "alongside the medical evidence of the distress and long-term disease that other people's cigarette smoke causes for people with asthma, there is a clear indication from the public… that they want to use public places that are free of other people's cigarette smoke".
But Marjorie Nicholson, director of the Freedom Organisation for the Right to Enjoy Smoking (Forest), has challenged the Guardian/IMC survey, claiming it did not show what proportion of respondents were smokers or non-smokers. "They could have interviewed all non-smokers," she argues.
Forest commissioned Taylor Nelson to compile a separate survey. It found that 16% of non-smokers in a party with smokers would sit in the smoking area of a restaurant. In a pub this would rise to 25%. Only 19% of non-smokers said a smoking ban would encourage them to use pubs and restaurants more.
Nicholson does not believe allocating separate space to non-smokers will work: "It's not logical," she says. "How does a mixed party organise itself?"
Like Bates in the opposite camp, Nicholson believes there will not be an outright ban. But, aware that some form of legislation will be introduced, she is lobbying for the air-control regulations to be tightened.
Good ventilation is an ideal solution, according to Donough O'Brien of Courtesy of Choice, a scheme aimed at helping businesses to accommodate smokers and non-smokers. Devised by the International Hotel and Restaurant Association and communications agency Spring O'Brien, and financed by the Tobacco Manufacturers Association, the programme is run in 3,000 restaurants and hotels in 44 countries. It encourages hoteliers to create clearly marked zones in their restaurants for smokers and non-smokers with a float zone in the middle. This allows flexibility according to demand.
O'Brien believes the White Paper will insist on such segregated areas and says the key is to improve air ventilation. An engineer needs to brief the restaurant on the direction of air-flow so that seating for smokers can be arranged downwind. He concedes that if a restaurant has a view it can be difficult to segregate smokers fairly.
"Small places will have to improve ventilation, and we are urging people to do it properly. It's amazing what you could do in a small restaurant for less than £500," O'Brien says. He estimates that this would buy a fan to suck air in and one to suck it out, plus engineering costs.
O'Brien warns that smokers would stay away from restaurants with bans and that could mean substantial losses for owners. "One smoker makes it a smoking table. Your smoker drags the group around. He or she would say: ‘Hey, I can't go there, it's no smoking - let's cook in tonight,' and that restaurant could have lost £200," he argues.
Michael da Costa, chairman of the Restaurateurs Association of Great Britain, agrees: "Smoking is unsociable, no question. But it is also convivial."
Da Costa supports the idea that ventilation is a workable solution, but he points out that the only feasible way to legislate is to introduce a law over seven or eight years, as and when restaurants are opened or refurbished.
He spent £25,000 installing air-conditioning and good ventilation in his Richoux Coffee Co outlet in London's Piccadilly and is satisfied that it improves the atmosphere. He reinstated smoking there after a four-month ban, because of demand, and says he has had only one complaint about smokers.
"I don't go back if a place is very smoky," he says. "It is inevitable that it will become less socially acceptable for people to puff away. We don't need a nanny society, but we do need a policy that encourages good practice and freedom of choice. As society moves, the industry will move with it."