Posted on 12/27/2003 6:58:20 AM PST by toddst
The public furor over Lexington's smoking ban is growing into one of the noisiest and most vigorous brawls rumbling toward Frankfort.
That is where three state lawmakers have filed separate bills that would prohibit local smoking bans -- and possibly strike down Lexington's, which was enacted in July but has been blocked under a court appeal.
Forces on both sides are summoning their lobbyists for the tactical battle that begins Jan. 6, the first day of the legislative session. Interests from all corners -- from farmers to retailers to county magistrates -- are itching for a punch.
"We'll be on the side of the gods on this one," said Dr. Andrew Pulito, a pediatric surgeon and president of the Kentucky Medical Association, which has vowed to attack attempts by the legislature to preempt smoking ordinances.
Pulito and his allies are framing their argument around public health and the idea of home rule: The government closest to the people should control local decisions.
They would be foolish to underestimate their opposition though. Twenty states across the nation already preempt some form of local smoking bans, and many did not get there without telephone banks or letter-writing campaigns sponsored by bar, restaurant and gaming associations -- and sometimes, tobacco giants.
Pointing to cigarette makers' own internal documents, anti-smoking forces call statewide preemption the No. 1 weapon of tobacco firms.
Although the companies cannot spar with every locally enacted smoking ban, they can saw down the clean-air movement at the state level, said Robin Hobart, author of the American Medical Association's guide to fight preemption.
"These local ordinances terrify the tobacco industry," Hobart said. "You'll see a real commitment to shut this down. And the fact that this happened in Kentucky completely freaks out tobacco executives to see how far this has come."
David and Goliath?
One of the 20 states with a law that supersedes local smoking bans is California. Although the law prevents local communities from passing individual smoking bans, it imposes a strong statewide ban in enclosed workplaces.
In most cases, however, states that deny local communities the right to regulate smoking do not have such rigid statewide smoking bans.
When voters in Helena, Mont., last year approved by referendum the toughest ordinance in the state to combat public smoking, health advocates rejoiced in what seemed like an end to their three-year campaign.
Six months later, they hit a snag when a city court suspended the ban indefinitely on a legal challenge.
Far more devastating, however, said attorney Jim Reynolds, was passage of a bill in the next legislative session that prohibited communities from banning smoking in casinos and other facilities that carried video gambling machines.
It followed a series of preemptive attempts by the gaming and tavern industries to retroactively erase Helena's ban, said Reynolds, who represents a host of health groups and residents suing the state.
The bill floated swiftly through the Montana legislature, which was fixated on a budget shortfall, Reynolds said. In exchange for the smoking reprieve, casinos had to pay a surcharge to the state.
"There was all this hand-wringing about 'Where will we get the money? Where will we get the money?" Reynolds recalled. "It was a little bit of tit for tat: We'll impose more of a tax on you, but we'll give you freedom from these smoking ordinances."
Caught off-guard, his network of advocates from all over Montana could not rebound, even via e-mail alerts. Within weeks, the bill became law. "I felt like it was a sneak attack," he said. "It just struck me as so unfair."
Mark Staples, attorney for the Montana Tavern Association, remembers it differently. Legislators were moved by the testimony of everyday, apolitical Helena business owners, many of whom claimed losing as much as 40 percent of their business because of the city's smoking ban, he said.
The state, which collects more than $40 million a year in gaming taxes for city, state and county governments, knew it would have to fill the budget hole somehow. "It prompted the legislature to say, 'We think the cure here that Helena imposed is worse than the problem, and it's going to cause a problem for us,'" he said.
Staples also bristles at his foes' suggestions that he and his allies are fronting Big Tobacco, which has not been involved at all in Helena's fight, he said. The national health groups that parachuted into his city were the real big guns, he contends.
"This is a national, monolithic health police imposing on local small businesses," Staples said. "They're certainly misrepresenting who's David and who's Goliath."
Tobacco money flows
Whether cigarette makers such as Louisville's Brown & Williamson or Philip Morris U.S.A. will join the fight at Kentucky's state level is not clear. They are not saying what their involvement, if any, will be.
Brown & Williamson has donated an undisclosed amount of money to a legal fight challenging Lexington's shelved smoking ban. The case, which will be heard by the Kentucky Supreme Court in March, argues that state statutes already preempt local smoking ordinances.
If tobacco does join the fray, however, it will have both brawn and bucks. Last year, tobacco interests shelled out nearly $400,000 over eight months lobbying Kentucky legislators on a number of other issues.
Philip Morris outmuscled every other company or organization that hired contract lobbyists, spending about $186,291 from January 2002 to April 2003, according to an analysis of lobbying expenses by a Frankfort-based public affairs newspaper, The Kentucky Gazette. The lion's share went to James "Jitter" Allen, the highest-paid and one of the most influential contract lobbyists in Frankfort.
Philip Morris also has donated money to Kentucky Farm Bureau, which is now pledging opposition to local smoking bans. In 1997, the farm bureau accepted a $5 million grant over five years to help burley growers boost their incomes.
Tobacco companies also have chipped in small donations to campaign coffers of state legislators, including two out of the three authors behind this session's preemptive bills.
Rep. Dottie Sims, D-Horse Cave, has accepted $550 from Philip Morris over the past five years, election finance records show. Sen. Dan Seum, R-Louisville, was given $600 from Philip Morris and Brown & Williamson last year.
Ban proponents such as Lexington Vice Mayor Mike Scanlon and state Sen. Ernesto Scorsone, D-Lexington, also have netted money from tobacco in past campaigns.
Gov. Ernie Fletcher, who might be charged with signing or vetoing a bill governing smoking bans, has received about $75,892 from tobacco interests since 1997, according to a report by the National Center for for Tobacco-Free Kids and Common Cause. That amount is in line with what many other U.S. lawmakers from Kentucky received.
Fletcher, a Lexington physician, has said during his campaign that he would not support Seum's bill because of its restrictions on local control.
Readying for battle
State bills that would override local smoking bans can count on help from groups such as the Kentucky Retail Federation and Kentucky Restaurant Association.
"If there will be a smoking ban in Louisville, people will-drive across the bridge -- it's that easy," said Stacy Roof, president of the restaurant group.
Kentucky Farm Bureau opposes smoking bans because they invade business owners' property rights, spokesman Gary Huddleston said.
Burley growers also might fear that Lexington's smoking ban could signal a "bellwether trend that could spread wider and farther," he added.
"On one hand, a specific community's action is not going to have a significant impact on the international tobacco market," Huddleston said. "On the other hand, if 90 percent of communities ... would follow the lead of what happened in Lexington or what's being considered in Louisville, you are looking at something that can have an impact."
The anti-smoking forces also pose a formidable challenge though. In the 16-month period that Philip Morris outspent all other groups on contract lobbying, the No. 2 spot was filled by the Kentucky Medical Association, which paid out $164,934 to lobbyists.
The American heart, lung and cancer associations are lining up under a coalition that has billed itself as a "preemption strike force."
The obvious ban proponents are also getting a hand from advocates of local government, such as the Kentucky League of Cities, Kentucky Association of Counties and the Kentucky Magistrates and Commissioners Association.
On philosophical grounds, some of these statewide groups probably would not support a ban such as Lexington's, which prohibits smoking in nearly all indoor public places, officials said. But they say their local autonomy was too precious to risk losing.
Next-door battles
Other than Kentucky, a cluster of states, including Georgia, Missouri and Arizona, are expected to be key battlegrounds for similar bills, said Bronson Frick, associate director of Americans for Nonsmokers' Rights. "This will be one of the busiest legislative sessions ever over the issue of local control," Frick said.
Kentucky's anti-tobacco watchdogs could learn from their neighbors.
Volunteers with West Virginia's tobacco-free coalition obsessively pore over any new bills filed in the legislature, said Bruce Adkins, the state's director of tobacco prevention. They look for last-minute amendments in innocuous places, such as bills on topics ranging from revenue to well-drilling.
The activists have hired their own lobbyist, whom they fondly call their "preemption killer." They are wired, and dozens can show up at the Capitol in a moment's notice, Adkins said.
"We can put out an alert to all of these members, and they can literally get the message to thousands of people. We can inundate legislators' phone lines," Adkins said. "They hate us."
The biggest weapon though might be in old-fashioned lobbying of the lawmakers themselves.
In Kentucky, one of the sponsors of preemption, Rep. J.R. Gray, D-Benton, contends that Lexington's council simply got it wrong when it enacted the ordinance.
"It's a decision they don't need to get into," Gray said. "It goes totally in contrary of the wishes of the people who live there and the people who own and operate businesses of that area. I don't think they have read the will of their constituents."
Gray's mind might be made up, but Lexington's government lobbyist and council members such as Dr. David Stevens will be working on others, starting first with Lexington delegates.
Stevens envisions a split between urban and rural legislators. The latter, he said, would be more likely to dismantle local ordinances.
"They don't like Lexington, Louisville or Northern Kentucky, and for us to take action against their beloved farmers is something they don't like," said Stevens, a retired orthopedic surgeon and Louisville native who grew up in Seum's district.
Seum, however, said anti-smoking forces are asking for too much. He is thinking about amending his bill to allow communities to go smoke-free as long as they relinquish any money from the tobacco settlement or other tobacco revenues.
Fayette County's health department receives about $145,000 a year in tobacco settlement dollars to help pay for programs to help people quit and keep children from starting.
"They're obviously addicted to the tax dollars," Seum, a former restaurant owner, said. "They don't get it both ways."
The fracas over local smoking bans, however, will be only one major tobacco issue to court the legislators' attention. Health advocates and a bevy of other groups will be pressing for a boost to the state cigarette tax, the second-lowest in the nation at 3 cents a pack.
Anti-tobacco activists fear a horse swap of the two though: A cigarette tax could be granted at the expense of the local clean indoor air laws. Both are needed to reduce Kentucky's smoking rates, the highest in the nation, said Amy Barkley, a youth tobacco prevention advocate leading the preemptive strike force.
"It's not a thing we can bargain with," she said. "There will be no trading off."
In addition to the three bills that have been pre-filed for the upcoming session, national anti-smoking advocates such as Frick warn to look out for more under every nook and cranny for bills that usurp local control.
Last year, a Mount Vernon state legislator unsuccessfully tacked onto a pesticide bill an amendment that would limit cities' rights to pass smoking bans.
"It's like playing Wack-a-Mole," Frick said, "and the fight's never done."
Burley growers also might fear that Lexington's smoking ban could signal a "bellwether trend that could spread wider and farther," he added.
Two main points surrounding this issue. However the most important is property rights. This will be a battle royal in the Kentucky legislature.
FMCDH
From your profile:
"Work as a citizen volunteer to assure our Bluegrass horse farms and green spaces are protected and well managed for future generations to enjoy."
It sounds a bit hypocritical to me but aren't "your" horse farms private property?... Protected from who?
When you open a business, you're inviting the public, it IS a public place...No one says "smokers" aren't allowed, only "smoking" in public places. How is that a private property issue?
But, then again, I'll bet this is what he always thinks of the positions he takes.
As you yourself say, if you enter a private business it is at the invitation of the owner, and once inside you must abide by his rules or your invitation is rescinded.
But lets turn this around. What would your reaction be if this legislation was to require all businesses permit smoking?
By agreeing that the government can force a private business to prohibit smoking you are also agreeing that the government can do the opposite - such as forcing a business that was voluntarily non-smoking to have smoking in their premises. Now do you understand why it is a private property issue?
"Work as a citizen volunteer to assure our Bluegrass horse farms and green spaces are protected and well managed for future generations to enjoy."
It sounds a bit hypocritical to me but aren't "your" horse farms private property?... Protected from who?
Good question I'm happy to try and answer with the abbreviated version. Horse farms require open space around them if they are to operate. This means housing must not be placed immediately next to them.
Children and their pets are impossible to keep out of the pasture areas if their home is too close to the pastures, which presence creates a risk to all concerned - the kids, pets AND the horses. So we - as citizens - work to keep buffer areas in place surrounding the horse farms.
10-4. This will be a battle royal in the legislature. I predict the anti-smoking groups will lose by a tremendous margin and our wacky local councilmembers (and mayor) will see their anti-smoking ordinance vaporize.
Would those buffered areas be privately or publicly owned? Interesting private/public property rights issues and questions either way, it would seem.
To my knowledge all the buffering areas are privately owned and agricultural. Zoning restrictions are the primary tool used to prevent housing development adjacent to the horse farms.
So the property rights of the buffering areas owners are denied to protect the business interests of the owners of the Horse farms? It always seems like 'property rights' are for those with political pull, not the owners of the properties:just a rallying cry to use, when needed, to get ones own way.
BWAHAHAHAHA!
But Gabz, this would require an ability to insert a modicum of logical thought into the fevered brain imaginings of one of FR's most dedicated and obsessed anti-private property busybodies.
Ain't gonna happen.
What a presumptuous twit, albeit a highly-educated one.
To force public policy based on neuroses, and chucking overboard any pretense of science... "for the children".
*sigh*
"... the side of the gods..." Damn! Must all controlling tiny minds be so predictably self-centered?
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