The Little Group In Tacoma That Could
By Norman E. Kjono, February 12, 2005
From the Tacoma News Tribune, February 11, 2005, "High Court Extinguishes County Smoking Ban," by Adam Lynn:
"The Tacoma-Pierce County Health Board instituted its smoking ban last year. Members argued that they had the authority to regulate smoking because many scientists believe secondhand smoke is a health threat. Workers at establishments that allow smoking are being harmed, as are nonsmokers who patronize such businesses, the board decided. But many Pierce County business owners howled at the move, saying the board was improperly imposing its will in violation of the 1985 Clean Indoor Air Act. That law bans smoking in most retail businesses but exempts bars, taverns, bowling alleys and minicasinos, among others. The business owners filed suit to stop the ban. The case was argued before the Supreme Court in November. On Thursday, all nine justices sided with the business owners, who were represented by the Entertainment Industry Coalition. 'The resolution, by imposing a complete smoking ban, prohibits what is permitted by state law: the ability of certain business owners and lessees to designate smoking and nonsmoking locations in their establishments,' the court wrote. 'By prohibiting what the statute allows, the Health Board's resolution is invalid.' It was the second time in eight months that the Supreme Court smacked down a proposal floated by Pierce County's health board. Last May, the court ruled that the board overstepped its authority when it mandated that local water providers add fluoride to drinking water. The attorney for the Entertainment Industry Coalition said the smoking ban reversal was just common sense. State law explicitly allows certain businesses to permit smoking, Seattle attorney Sam Watkins said. 'The 9-0 decision clearly demonstrates that it's not even a close case,' Watkins said. He said Pierce County health's director, Dr. Federico Cruz-Uribe, was waging a pointless crusade to impose his will on other people. 'This was a clear case of a public official abusing his power. He's out of control,' Watkins said. 'If this wasn't so serious it would be laughable. I have a question for him: Is he going to apologize to the business owners of Pierce County who he drove out of business or severely harmed financially?' Cruz-Uribe was not in an apologetic mood. 'It's my job to look out for the health of this community,' he said. 'We know (the smoking ban) is good for public health. We're going to keep pushing the Legislature on it.' . . . 'Now we're left with either the Legislature passes a statewide law or we do it on our own,' said Annie Tegen, Washington state manager for Americans for Nonsmokers' Rights, a California-based group that advocates smoking restrictions. (Underline added.)
Tobacco control advocates have failed to pass their statewide smoking ban during three previous annual legislative sessions. Two statewide smoking ban initiatives, I-890 and I-332, failed to gather sufficient signatures in 2004 to advance. And the Thurston County Superior Court ruled that I-890's descriptive language must be changed to become not misleading. Now we have the Washington Supreme Court affirming what two lower courts -- the Pierce County Superior Court and the Washington Court of Appeals -- concluded, that the Tacoma-Pierce Pierce County Board of Health's smoking ban conflicts with state law. In a word the Pierce County ban was and is unlawful. Few, if any, special-interest agendas have been more transparently self-serving at the expense of others while persisting with a fatally-flawed approach to honest public policy that anti-tobacco.
Yet we reading in The Tribune's article that announces the state supreme court's decision that Frederico Cruz-Uribe says "We're going to keep pushing the legislature on it." And Washington hospitality business owners now face I-901, a virtual carbon copy of last year's unsuccessful I-890, as well as several bills in the legislature to impose the statewide smoking ban that our supreme court has just ruled conflicts with state law. Tobacco control advocates want the same bill that has failed in three previous legislative sessions and the Washington Restaurant Association advocates segregating patrons who smoke into "separate but equal" walled-off rooms.
Pharmaceutical nicotine wants a smoking ban to coerce a consumer choice of their "Smoke Free nicotine delivery device gum, patch, lozenge and inhaler products. Tribes support a statewide smoking ban to receive the benefits of a virtual monopoly to accommodate patrons who smoke in their smoking-ban-exempt facilities. And WRA wants segregation of smokers to accommodate their large chain members "Smoke Free" decisions without being encumbered by loss of meals served at other restaurants that have Designated Smoking Areas. None of those agendas concern legitimate public health issues. Each of those agendas are dedicated to the individual interests of the groups that advance them.
In light of the foregoing I believe that Mr. Watkins' sentiments as expressed above about an apology from Frederico-Cruz may be laudable but are limiting. Why should hospitality business owners go through years the frustrations, risks and costs of defending their livelihoods against special-interest agendas and be left with a mere sour, insincere apology from a director of public health who has been consistently informed that he is out of line by every court in our state? And when do Washington hospitality business owners experience their bite of the apple by recovering the revenue losses and costs of defending their legitimate interests?
From the Tacoma News Tribune, February 10, 2005, "State Supreme Court Strikes Down Pierce County Smoking Ban," by Rebecca Cook of the Associated Press:
"The Washington State Supreme Court on Thursday struck down Pierce County's smoking ban. The ban was the strictest in the state, covering bars, restaurants, bowling alleys, casinos, hotels, private clubs and most other nontribal businesses. The Tacoma-Pierce County Board of Health imposed the ban in January of last year, but three weeks later it was overturned by Pierce County Superior Court Judge Ronald E. Culpepper, who said the agency lacked the authority to enact it. The state Supreme Court agreed, saying the health board's smoking ban conflicted with the state law. . . . 'I'm so happy!' said Janis Johnson, owner of the Pegasus Restaurant in Tacoma, where smoking is permitted. She said she ran through the restaurant telling everyone 'we won!' when she heard the news. 'This has been a long, hard-fought battle,' said Johnson. 'They did the right thing.' The smoking ban was challenged in court by the Entertainment Industry Coalition, representing businesses where smoking is allowed. The high court denied the coalition's request for attorneys' fees from the Tacoma-Pierce County Board of Health, because it said the health board's defense was rational and not frivolous." (Underline added.)
The Washington Supreme Court's decision on attorney fees for EIC necessarily did not consider one aspect, false claims about the alleged risks of Environmental Tobacco Smoke (ETS), because such were not part of prior proceedings that it ruled on. Pierce County's claims about the health risks of ETS are not only demonstrably false but they are also "justified" by an administrative record that their own internal record show was manipulated to exclude material information that contradicted their false claims.
Pierce County's claims about the risks of ETS are in a word false as represented. Pierce County's claims about ETS are directly contradicted by such credible and authoritative sources as the U.S. Department of Laborâ€˜s Occupational Safety and Health Administration (OSHA) and National Institute of Environmental Health (NIEH). For a summary of information about Environmental health as applies to current smoking ban legislative efforts please see my February 6, 2005 commentary "Washington Smoking Ban Legislation,
Part I: Initiative to the People 901" published by Forces.org.
Why should Washington hospitality business owners be forced to commit an annual budget to defending their legitimate interests against a rolling-wave of manipulated, false information about public health risks that do not exist as represented? And why should tobacco consumers be required to countenance the negative effects of persistent misinformation about them and the risks they represent to their fellow citizens merely to "justify" a mercantile strategy imposed by pharmaceutical, tribal, and large restaurant chains? At what point do business owners, property owners, employees, and lawful consumers of legal products simply say "Enough is enough," and put an end to this unbridled mercantile agenda through pursuing their own interests through the courts?
Judging by anti-tobacco's track record of failure before our courts to date such litigation may present an unqualified opportunity to set this systems special-interest mandate-mugging aright, to the benefit of us all. It's time we get on with setting this aright. The fist step in doing so is to acknowledge that tobacco control's record in our courts is one of abject and sustaining failure and then proceed accordingly.
A few Background Facts About the Tacoma-Pierce County Board of Health's Smoking Ban
The quote from Annie Tegen, Washington state manager for Americans for Nonsmokers' Rights (ANR) in The Tribune's February 10, 2005 article is as revealing as it is interesting. Americans For Nonsmoker's Rights is the beneficiary of two grants from the Robert Wood Johnson Foundation of Princeton, New Jersey, which total more than $1.1 million (see a $971,114 grant for Establishment Of The Institute For Environmental Tobacco Smoke) plus another $142,654 grant for "Educating The Public And Policy Makers About Clean Indoor Air Issues." ANR also publishes Smoke Free Ordinance Lists and provides resources plus support for Going Smoke Free In Your Community $1.1 million in private, special-interest pharmaceutical grants, directed in large part to supporting Pierce County's ill-fated attempt to impose its own brand of "Smoke Free" nicotine mandates, says Janis Johnson's joy that Pegasus Bar & Grill can permit smoking is well-founded. It is a shame the she and so many other hospitality business owners in Washington must now contend with Ms. Tegen and Mr. Cruz-Uribe persisting in their attempts to mandate an out-of state special-interest agenda despite our Supreme Court's ruling.
The Tacoma-Pierce County Board of Health's December 3, 2004 "Findings" about Environmental Tobacco Smoke included several references to studies by University of California at San Francisco professor Stanton Glantz, including those regarding the economic effects of smoke-free policies in the hospitality industry. See, for example, PAGE 5., item 2.42. Prof. Glantz is the Contact Person for a $678,819 grant from the Robert Wood Johnson Foundation for which the title is "Educational campaign for restaurant owners on smoke-free restaurants." By clicking on the "List All RWJF Grants To this Grantee" icon readers will find total current grants to the University of California at San Francisco are more than $15 million. Why should Janis Johnson and a host of small hospitality business owners need to spend their times and money to fight Junk Science promoted by the Robert Wood Johnson Foundation about Environmental Tobacco Smoke through its University of California grantees?
In addition to the above, it must be noted that smoking bans - as used to limit the opportunities to smoke -- are an integral part of a written strategy to replace cigarettes with what are described as deeply inhaled, fast acting, and highly addictive pharmaceutical nicotine inhalers. That strategy is presented in a research paper by Walton Sumner II, MD with Washington University in Saint Louis , titled "Estimating the Health Consequences Of Replacing Cigarettes With Nicotine Inhalers," and published by Health Research, Inc.'s journal Tobacco Control in its June 2003 edition. I wrote about that strategy in "XXX Products," published by Forces.org. That work includes grant numbers for more than $3 million in previous grants to Washington University in Saint Louis that are no longer included in the RWJF Current Grants. The journal Tobacco Control is the direct recipient of a $200,000 grant from the Robert Wood Johnson Foundation titled "Support for tobacco control journal," as well as a $104,447 grant from that foundation titled "Supplement to the journal Tobacco Control." By clicking on the ""List All RWJF Grants To this Grantee" icon for the $200,000 grant to Tobacco Control journal readers will determine that total grants to Health Research, Inc. total more than $8.8 million. Why should Janis Johnson and her hospitality trade colleagues be required to fund a perennial budget to combat GlaxoSmithKline's and Pfizer/Pharmacia's desire to expand their "Smoke Free" nicotine market share?
Section 11, "Consultation With the Puyallup Tribe" on Page 17 of the Tacoma-Pierce County Board of Health's smoking ban Resolution 2003-3527 said
"The Department shall consult with the Puyallup Tribe and take other actions it deems appropriate under the terms and conditions of that Gaming Compact and the Land Settlement Agreement, to encourage or cause the Puyallup Tribe to adopt policies protecting casino patrons from the harmful effects of secondhand smoke in Native American owned or operated casino indoor places." (Underline added.)
It is fair to say that the Tacoma-Pierce County Board of Health's efforts to persuade the Puyallup tribe to ban smoking were about as successful as its attempt to go beyond state law to mandate such for nontribal hospitality businesses -- zero, zip, squat, nada. Even if such attempts were successful voluntary compliance by tribes is not the same as mandatory compliance by nontribal establishments. Why should Janis Johnson and other hospitality business owners in Washington be forced to contend with unequal and disparate compliance standards that tilt the hospitality deck in favor of tribal venues?
Section 3, "Regulation of Smoking in Public Places," includes on Page 15, item 10 which defines what casinos the smoking ban in Pierce County will apply to. Item 10. says:
"Casinos, when the establishment is under the jurisdiction of Pierce County, Washington , Tacoma or other Pierce County municipality."
Well, so much for the board's resolution and smoking at tribal venues. Tribal casinos were permitting smoking and hiring a year ago when nontribal establishments were laying off employees due to the smoking ban.
To the above multi-million-dollar resources all brought to bear on Pierce County we add a $500,000 grants from the tobacco settlement's Legacy Foundation plus a near $1 million grant form the Robert Wood Johnson Foundation to Washington Breathe for its unsuccessful attempt to mandate a statewide smoking ban through Initiative 890. Add up just the resources listed above that were put forth by pharmaceutical special-interests to float a smoking ban in Pierce County and throughout our state. It is not an exaggeration at all to say that many tens-of-millions were committed to that smoking ban effort and others.
Its The Energy
The victory for Janis Johnson and her fellow Pierce County hospitality business owners is particularly sweet considering the vast resources and organized commitment made to that smoking ban effort by out-of state special-interests. A small group of folks down at what was then the Entertainment Industry Coalition (EIC) stood together, pooled their limited resources, committed to an outcome, and won. That small group in Pierce County, those who could not put up the financial equivalent of just one grant from the Robert Wood Johnson Foundation to one anti-tobacco activist group, pooled what resources they had and kicked some major booty. God, but that's cool! And by winning that small band of committed business owners also saved the collective backsides of their hospitality trade colleagues statewide.
As so often occurs, little did EIC members know back in December of 2003 when the smoking ban in Pierce County was enacted that they faced the full force of a well-organized, multi-million-dollar special-interest agenda from multi-national pharmaceutical giants and their multi-billion-dollar private foundation in New Jersey. Perhaps that is fortunate. Would that successful opposition have been undertaken had EIC members known the depth of resources and magnitude of influence that they actually confronted? For the moment that question is moot, EIC and its members have earned a well-deserved opportunity to savor the fruits of victory. All who fight the nationwide battle against corporate/state agendas at the expense of the little guys and everyday folks should join with EIC in celebrating that victory, perhaps even their blessings and best wishes. For, in the greater scheme of things, EIC and its members in Pierce County, Washington have also contributed to saving the collective backsides of hospitality trade business owners nationwide.
The commitment of a little group that could who met every Monday afternoon at the AM VETS hall in Tacoma, Washington therefore rings the bell of what is good, just and right nationwide. To the victors go the spoils. In this case the fruits of victory extend well beyond the borders of Pierce County, throughout or state and into the well-being of our nation. All who value freedom to choose and liberty in life now have the opportunity to savor, however briefly, the sweet taste of success, thanks to their fellow citizens who stood to duty in Pierce County, Washington. Truly, on this day all people of good faith and earnest endeavor are well-blessed. Thank you Janis, and all of your friends and colleagues at the Entertainment Industry Coalition who made that possible.
But this week's victory in Pierce County is as old as the human experience as it is new in today's headlines. Nearly 230 years ago a small band of outraged colonists sent King George III packing from what is now these United States. Gandhi followed suit many years later by throwing all the King's men out of India. King and Mandella in their separate ways ended segregation and apartheid. The Norwegians sent their Quisling National Socialist government out on a rail in the 1940s, as did the people in other Baltic and Scandinavian countries at the time. And we the people of planet earth -- those of us who share a common human experience -- are the better for it. But how do such victories occur? What is the essence of human spirit through which ordinary people rise to the occasion and achieve extraordinary things?
I write from Hawaii today. I have spent a considerable part of this week of respite reading "Fundamentals of Hawaiian Mysticism" by Charlotte Berney. On page 62 of her book Berney points the way to how this phenomenon of extraordinary achievements by ordinary people occurs. It is useful to note that Berney writes about how Polynesian culture, the Huna energy that is focused on the good of the family and its village, an inclusive philosophy, manifests such realities. When Mana, one's strength of energy focused on a subject or situation, is great mountains can be moved to address that circumstance. Berney writes:
"The kahuna knew that thoughts are things and have substance. A thought vibrating in the conscious mind become stronger when it is linked with emotion at the Basic Self level. When a thought is sent into the universe, its aka substance has an effect, however small, but when combined with similar thoughts and emotions and repetitive thoughts the effect can be great. Thought forms, composed of aka substance, cluster together like grapes on a vine and can accumulate. In this case like attracts like." (Underline added.)
On page 63 Berney writes:
"A Huna prayer-action consists of a strongly stated intention that is fueled by free-flowing mana unencumbered by blocks."
I recall a woman who owned a bar in Pierce County with her husband approaching a friend of mine at an EIC rally in Tacoma last year. She explained how she and her husband had planned to use the sale proceeds from their bar to retire but at the time with the smoking ban in effect the sales price had dropped to virtually nothing. Not only was their future retirement in jeopardy but their ability to continue in business was in question, too. At the time my thoughts went to how arrogantly presumptuous it was for out-of-state special-interests and their Washington supporters to regard that family's livelihood and future as disposable to their greater mercantile agenda.
Today I regard that story as shared with my friend to be a major source of the blessings that Pierce County hospitality business owners enjoy at present, however briefly that could be. There are few things that can be more strongly felt at the Basic Self level, or that can stir up stronger personal mana energy around an issue, than having one's current livelihood and future retirement put in jeopardy. And the effect of combining that energy with others of similar circumstance as members of EIC did by meeting each Monday afternoon can be vast and far-reaching. Indeed, the committed thoughts and energy of a few in Pierce County were demonstrably sufficient to back down multi-billion-dollar special-interests from out-of state.
In its February 10 and 11 articles about the Pierce County smoking ban The Tribune today writes about a bill supported by the Washington Restaurant Association to "solve the smoking problem." Apparently the promoters of that bill and our erstwhile news reporters are oblivious to the victory that was just won by EIC and its members. To now put in place a smoking ban law that changes state law that has worked well for the past two decades -- and has just been confirmed by our state supreme court -- is foolish. Such action is akin to the colonist inviting King George III back after soundly whupping butt on his troops. Had we done so where would we be as a nation today?
Loser do not mandate the terms of victory to winners. Anti-tobacco and its pharmaceutical, tribal, and large chain restaurant supporters have demonstrated that their agendas and the public policy they would enact to advance them are fatally-flawed losers. Being confronted with that reality their response is to now presume to mandate how those who enjoy a well-earned and just victory are to accommodate their demands this year. The logical and common sense response is to inform the elitist kings who lost once again that they must now leave us and take their red coat Tories with them. Persistence with invading the colonies and mandating the business of colonists is no longer an option.
Perhaps we the people of Washington have a better idea. Why not simply seize this moment of victory so justly earned to rally around the flag of returning integrity to public policy by running the mandate muggers out of our state? Lord knows we have undeniably demonstrated that we possess the "mana" to do so if we choose.
And the only thing between us and that positive reality is us. Do we have the wisdom to grasp what this victory before our state supreme court says about what is right and just, the will to choose that, and the courage to see it through?
I'm betting on we the people and against the red coats. I suspect that all the king's men have no concept of the scrap they will be in from this day forward.
Norman E. Kjono