By Sarah Green
KHI News Service
TOPEKA,
Jan. 8
As the number of Kansas cities with smoking bans continues to grow, the business interests that were the first and staunchest opponents of the restrictions are beginning to accept the seemingly inevitable.
Now, their chief concern is assuring that the new laws making their way onto the books are workable and fair.
Don Sayler, president and chief executive officer of the Kansas Restaurant and Hospitality Association, said his organization is acutely aware that these days it is not “if but when” a city will adopt some sort of limits on smoking.
“More and more cities are bringing it up,” Sayler said. “We don”t like it, but it”s becoming kind of a trend.”
In the U.S., at least 25 states and territories have adopted border-to-border smoking restrictions. And in Kansas, at least 17 Kansas cities have adopted smoking restrictions in public places while several others are considering them. Some ordinances, such as Lawrence”s, are broad in reach, banning smoking inside virtually all public spaces. Others have passed policies that prohibit smoking on city-owned property and in city vehicles. Salina, the first city in Kansas to adopt restrictions, took what most consider half steps. Four years ago, it banned smoking, but only in restaurants between the hours of 5 a.m. and 9 p.m.
That approach, an effort to balance the interests of public health and the city”s hospitality businesses, is one that has since found few imitators and which is criticized as unfair by spokesmen for the bar and restaurant industry.
“We still think time restrictions are a disadvantage to some members of our industry,” Sayler said. “If you have a restaurant open until 9 p.m. but then it turns into a drinking establishment, people will shift their schedules so they go at 9. They get around the time restriction, which puts one restaurant that”s not open later at the disadvantage of another. We still don”t have a fair and equitable playing field.”
Fairness
Restaurants, bars and hotels are targeted more frequently than any other workplaces in smoking laws passed in Kansas and elsewhere across the nation.
And the hospitality industry”s concern about the fairness of bans and their enforcement is now key in most debates as policymakers weigh prospective smoking restrictions.
“Some folks now, especially restaurant and bar owners and managers, say “if we have to do it, it”s got to be fair, and everybody”s got to do it.” It”s not fair if one restaurant has to go smoke-free when another restaurant that has a liquor license doesn”t,” said Mary Jayne Hellebust, executive director of the Tobacco Free Kansas Coalition.
And there is clear evidence that a smoking ban with major exemptions or uneven application encourages businesses to exploit the loopholes.
At least one bar and restaurant in Olathe, a city that recently imposed a smoking ban, has already converted to a private club. One of the few exemptions in the Olathe ban applies to private clubs, which includes American Legion halls and VFW posts.
Now those who wish to patronize the recently converted bar/restaurant must submit an application and a fee to comply with the private club status.
“I think that will be the next big issue,” Sayler said.
Uneven application of bans also invites legal challenges.
Manhattan has not adopted a smoking ban. But over the course of last year, its city commission discussed three options to reduce or eliminate smoking:
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Banning smoking in all public places;
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A smoking ban in workplaces with exceptions, such as bars and bowling alleys; and
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A ban only in restaurants.
None of the options passed.
“We could have legally supported the ban in restaurants,” said Jason Hilger, assistant Manhattan city manager. “But it would have been difficult for the legal staff to defend a case for smoking in certain businesses but not others.”
Health Effects
While non-smoking diners may enjoy smoke-free restaurants, clean air advocates say indoor smoking bans are imperative to keeping workers healthy.
“You”ve got customers coming in and out, and the smoke is still bad, but at the same time you”ve got a worker putting in an eight-hour shift,” Hellebust said. “They”re being adversely impacted with toxins as a condition of employment.”
A study in Scotland published in the Oct. 11 issue of the Journal of the American Medical Association showed a quick improvement in the health of bar workers after the first month of a nationwide smoking ban.
“the recent introduction of legislation in Scotland prohibiting smoking in enclosed public places has led to a rapid and marked improvement in the health of bar workers,” the study states. “On average, employees had been working in a bar for more than nine years, but improvements in health were evident only one month after the introduction of a smoke-free policy.”
The percentage of bar workers with respiratory and sensory symptoms decreased from 79.2 percent before the ban to 53.2 percent after one month and 46.8 percent after the second month, according to the study.
U.S. Surgeon General Richard Carmona released a
comprehensive report
this year on the direct and immediate harm of even small amounts of secondhand smoke on non-smokers.
“Today, massive and conclusive scientific evidence documents adverse effects of involuntary smoking on children and adults, including cancer and cardiovascular disease in adults, and adverse respiratory effects in both children and adults,” Carmona wrote.
The amount of exposure to secondhand smoke has decreased as states and cities restrict smoking in public areas
but approximately 60 percent of nonsmokers in the United States still show biologic evidence of exposure to secondhand smoke.
Cigarette smoke contains formaldehyde, cyanide, carbon monoxide, ammonia and nicotine. According to the Tobacco Free Kansas Coalition, a non-smoker working in a smoky bar for eight hours inhales an amount of smoke comparable to actively smoking 17 cigarettes.
Comprehensive smoking bans, along with “taking it outside,” are the two best methods to decrease secondhand smoke levels, Carmona said.
“Restrictions on smoking can control exposures effectively, but technical approaches involving air cleaning or a greater exchange of indoor with outdoor air cannot,” he wrote. “Consequently, nonsmokers need protection through the restriction of smoking in public places and workplaces and by a voluntary adherence to policies at home, particularly to eliminate exposures of children.”
State versus local
Without a state mandate to eliminate smoking in public places, it has been up to individual cities, and often individuals themselves, to raise the issue locally. That has created a patchwork of restrictions in the cities that have them.
Quite simply, Hellebust said, a law at the state level would protect all Kansans without question and create a standard that doesn”t exist today.
“It affects more people, immediately,” Hellebust said. “It would ultimately end up being more fair.”
In March 2005, in the Kansas House of Representatives, the Federal and State Affairs Committee held a public hearing on a proposed “Kansas public smoking ban act,” which sought to ban smoking in all indoor public spaces, inside all workplaces and in some outdoor public places, such as sports stadiums.
“We had a pretty good public hearing,” said Rep. John Edmonds, R-Great Bend, who chaired the committee. But the measure failed to gain committee approval.
“I counted noses on votes afterwards, and two Republicans were willing to advance the bill, and that was including me,” Edmonds said. “About half the Democrats were for it and about half were not.”
Edmonds, who will retire from the Legislature this year, said he didn”t know of anyone who planned to re-introduce the bill but that he expects the issue will resurface.
“I think that issue will be back and I think it will pass in the next four to five years,” he said. “It will depend on who is the governor at the time. I think (Gov. Kathleen) Sebelius would have signed it, if we could have gotten it that far.”
Those who try to revive the idea of a comprehensive statewide smoking ban may have an ally of sorts in the Kansas Restaurant and Hospitality Association.
“We strongly believe in freedom of choice and we oppose smoking bans,” Sayler said. “But if they are imposed, we think there need to be no exceptions and implemented on a statewide basis.”
The hospitality association worked out a compromise with grassroots leaders in Overland Park to establish a comprehensive ban now considered a model for the Kansas City area. Leawood recently passed a ban similar to Overland Park”s; other cities in the Kansas City metropolitan area also considering laws closely resembling the Overland Park model.
The Surgeon General”s report may help play a role in making laws for clean indoor air, said Paula Marmet, director of the Office of Health Promotion in the Kansas Department of Health and Environment”s Division of Health.
“I think since the Surgeon General”s report was released that it was like the final word the jury”s out now,” she said. “You”ve seen what”s happened across the country, even with cities and communities in Kansas going smoke-free, as well as entire states and countries that are now smoke-free. The frequency is picking up. A lot of it is the public will to finally do it.”
Community activism
Though Kansas legislators have been reluctant to embrace the issue, grassroots groups have kept the bans on the agendas of city commissions and have been the key force in getting the restrictions passed.
In Lawrence, both grassroots citizen groups and the local health department worked to raise support and awareness for the comprehensive indoor smoking ban that took effect in July 2004, said Janelle Martin, executive director for the Community Health Improvement Project at the Lawrence-Douglas County Health Department.
The primary message was one of workplace safety.
“They stayed the course, so to speak, of maintaining that this is a health issue,” Martin said. “You shouldn”t divide up the day when it comes to the health of employees. It”s just as important at 11 p.m. as it is for 7 p.m.”
Though they succeeded in persuading the city commission to pass a comprehensive ban, the Douglas County smoking ban coalitions remain active, aware that legal challenges and other opposition still exists. One Lawrence bar owner has appealed the city”s ban to the Kansas Supreme Court after a district court judge upheld the city”s law as constitutional.
“You learn to brace yourself for more battles along the way,” Martin said. The Clean Air Lawrence citizen group, for example, continues to maintain a Web site and phone line to respond to questions and concerns. About 20 of the group”s 80 members are still active, Martin said.
Most city officials won”t initiate discussion of a smoking ban, but instead wait for local citizen groups to start the push, Hellebust said.
“Right now, the focus is on local communities, because that”s where the action is,” she said. “There”s usually a small group of people interested in educating their friends and neighbors, then taking the issue before the city council and saying “this is what we want.””
Almost every person who has publicly spoken against local bans in Manhattan, Salina, Lawrence and other communities has been connected to businesses such as restaurants or bars
the target of many of the local ordinances.
Yet one group that has been essentially silent in Kansas is the tobacco industry.
Bill Phelps, a spokesman for Philip Morris USA based in Richmond, Va., said his company had been involved in lobbying against bans in other states in previous years, but had not been involved in local discussions in Kansas.
“We have not lobbied against any smoking restrictions in Kansas this year,” he said.
Phelps declined to comment on Philip Morris” actions in other states.
Even in states where legislatures have imposed statewide restrictions, grassroots efforts have been key, sometimes including the strong support of churches.
In November at the 2006 Kansas Tobacco Control Summit in Wichita, Vincent DeMarco, executive director of the Maryland Citizens” Health Initiative, spoke about his work with faith-based organizations encouraging officials in that state to legislate against tobacco. He is also involved with a group called Faith United Against Tobacco.
Candace Ayars, senior research analyst at the Kansas Health Institute, attended the conference. She said DeMarco discussed the idea of using faith-based messages, such as the principle of beneficence, to aid efforts in curbing tobacco use.
(Click here to hear an interview with Ayars about the status of smoking restrictions in Kansas.)
“In Maryland, it was all about how they framed the debate by making it always about children,” Ayars said. “The message is biblically based: Jesus said to the little children “Come unto me.” These groups believe it is their Christian duty to get involved with this issue.”
Durability
Salina”s ordinance is the state”s oldest. It has survived unchanged and without legal challenge for four years.
“Definitely in the last few years, we haven”t had anyone say that we should eliminate it,” said Jason Gage, Salina city manager. “Surprisingly, we haven”t had a group of folks say we need to make it more stringent. Efforts in almost all the other communities to ban indoor smoking have been broader to include workplaces and other areas where people gather. I”m a little surprised it hasn”t come back.”
The following Kansas communities have banned smoking in the public places listed:
Abilene: workplaces and restaurants
Anthony: all tobacco banned in city-owned buildings and vehicles
Bel Aire: most public places. Exemptions allowed for enclosed, ventilated rooms.
Concordia: restaurants
Fairway: all workplaces
Garden City: restaurants, bars, fraternal organizations, some outdoor sports venues. Exemptions allowed for private offices and retail stores.
Hutchinson: restaurants with more food than liquor sales
Lawrence: all indoor public places. Exemptions allowed for outdoor patios.
Leawood: indoor public places and businesses, except retail tobacco shops
Lyons: restaurants
Mission Woods: public places, with an exception for employee break rooms
Olathe: public places, except private clubs
Overland Park: indoor public places and businesses, except retail tobacco shops and outdoor patios
Park City: smoking banned in city-owned buildings and vehicles
Parsons: smoking prohibited in restaurants and bars but not private clubs between 5 a.m. and 9 p.m.
Prairie Village: smoking banned in workplaces and public buildings, with an exemption for restaurants and bars until surrounding communities prohibit smoking
Roeland Park: all workplaces
Salina: smoking prohibited in restaurants between 5 a.m. and 9 p.m.
Walton: all public places
In addition:
Maize, Dodge City and Derby are among those cities considering smoking bans.
In Great Bend, city staff members recommended in mid-October that the city council not pass a smoking ban.
Elsewhere:
Smoking is banned in offices, restaurants, bars and non-Indian casinos in:
California
Delaware
New York
Connecticut
Maine
Massachusetts
Rhode Island
Vermont
Washington
Puerto Rico
Hawaii
Ohio
Arizona
Smoking is banned in offices, restaurants and bars in:
New Jersey
Colorado
Smoking is banned in offices and restaurants in:
Nevada
Florida
Georgia
Idaho
Arkansas
North Dakota
Louisiana
Smoking is banned in offices in:
South Dakota
Maryland
Smoking is banned in restaurants in:
Guam
Smoking bans have been approved and take effect by 2009 in:
Washington, D.C.
Montana
Utah
Sarah Green is a staff writer for KHI News Service, which specializes in coverage of health issues facing Kansans. She can be reached at
sgreen@khi.org
or at 785-233-5443, ext. 118.