Mayor Ernie Bourassa says the city will likely wait until after the annual Yukon Sourdough Rendezvous Festival to start fully enforcing the city's smoking bylaw despite a move by some bars to put ashtrays back on the tables.

'Let them have their little protest,' he said in an interview this morning, after noting he was a 'little disappointed' with the move.

The bylaw bans smoking in all public places. The ban came into effect in January 2004 for all establishments except bars and Porter Creek Billiards, which argued its closest competition are the bars around town. They fell under the bylaw as of Jan. 1, 2005.

Jonas Smith, the Yukon zone director with the B.C. and Yukon Hotel Association and manager of the Capital Hotel, announced Tuesday he and some other bar owners and managers have restored the ashtrays to their bar tables.

Smith said if charged, he and others are prepared to fight the matter in court.

'There was a cheer when the ashtrays hit the table,' he said in an interview Tuesday afternoon.

A number of legal opinions and cases in other jurisdictions have led the hoteliers to believe the city has no legal grounds to ask operators to enforce the bylaw.

Smith described a human rights complaint recently filed with the Yukon Human Rights Commission about the smoking bylaw as 'the final straw' which made the association decide to make the ashtrays available to patrons again. The complaint charges the regulation violates the Yukon Human Rights Act by discriminating against smokers.

'I don't think it'll have any impact at all,' Bourassa said of the complaint.

The mayor noted there are other legal cases and precedents that lead him to believe the city is within its jurisdiction with the bylaw.

Bylaw manager John Taylor said it's up to the commission to look at it and make a decision.

He pointed out the bylaw was passed by a duly-elected council. If the commission determined it infringes on human rights, the bylaw department would then bring a report back to council on the matter for council to decide how it wants to proceed.

'It's totally up to the commission to look at it,' Taylor said.

Smith noted the city will have a choice of ignoring the bars' move of putting ashtrays back on the tables or laying charges, which would force the matter to go to court.

'We're prepared to go that route,' he said.

For its part, Taylor said the department will continue its current education campaign, issuing warnings to violators on a complaint basis.

'We'll stay the course,' he said.

Since the bylaw came into effect, the city has been issuing warnings to those bars reported to be permitting smoking in their establishments.

Taylor said approximately 15 warnings have been issued so far . Some of those bars are coming close to the three warnings the bylaw department plans to give before the next time laying charges.

'It'll eventually happen,' he said, noting he wonders why the bars haven't gone to court looking for an injunction against the bylaw .

Bourassa said the city has tried to give bars enough time to adapt to the change and will likely wait until the annual winter festival is over before enforcing the bylaw.

Asked if he expects there could soon be a case in court about the bylaw, the mayor replied, 'It won't surprise me.'

When the city begins enforcing the bylaw, in a case where there is enough evidence, it will go to court, Taylor said.

Bourassa said he wouldn't be in favour of seeing the ban brought back to council to reconsider. However, Coun. Mel Stehelin, who also owns the '98 Hotel, said he would vote in favour of reconsidering the bylaw if it was brought back to council.

The '98 won't be putting its ashtrays back on the table though, despite the 40-per-cent decline in business the bar has seen over this time last year.

The loss of business since the bylaw has come into effect has meant a loss of hours for staff and even layoffs at the bar, Stehelin said.

He noted, though, that his bar probably has a higher proportion of patrons who smoke.

Bourassa has heard other stories about the state of business for bars since the ban began. Sitting in the barber's chair yesterday, he heard one customer talk to a barber about how busy one bar has been since the bylaw came into effect.

'She said, It's been insane,'' Bourassa commented.

The mayor wants to encourage bar patrons in favour of the smoking ban to complain to bar owners who put ashtrays back out on the tables.