They're Beginning To Get It In Colorado

By Norman E. Kjono, October 11, 2006

Now what about Washington and other states? The text which follows this paragraph is the body of an E-Mail sent today to several members of the Washington legislature, of Office of the Attorney General, and the Department of Revenue. Both the facts and conclusions speak for themselves.

The below link to an article in the Denver Post should be of immediate interest. It not only addresses the issue of unwarranted damages to small business tavern owners imposed by smoking bans but it also brings to the fore constitutional issues that the District Attorney is pursuing in the U.S. District Court.

From the Denver Post, October 11, 2006, Pueblo Colorado DA Joins Plaintiffs To Overturn Smoking Ban:

"Pueblo County District Attorney Bill Thiebaut is siding with plaintiffs in a federal lawsuit aimed at overturning the state smoking ban. On Friday, Thiebaut, through his attorney, James Carleo, filed a motion asking for a summary judgment to end the ban, which started July 1, based on two arguments: The law's exemption of casinos is counter to the state constitution because it grants 'exclusive privilege' to them. The marketplace is capable of meeting the needs of smokers and nonsmokers without resorting to "criminalizing otherwise legal social behavior." The suit was brought by a coalition of bar and tavern owners and seeks to overturn the Colorado Clean Indoor Air Act. It was filed in U.S. District Court in Denver in June. . . . Thiebaut's motion "basically takes the position that a special exemption has been given to the casino industry that is not based on anything related to the secondhand smoke law - it's based solely on financial considerations," Carleo said."

The above-referenced personal action by a District Attorney also highlights the dangerous ground that states tread with smoking ban exemptions, such as those addressed in my E-Mail of October 3, 2006 to several members of the Washington legislature about Washington's I-901. That E-Mail included excerpts from the September 27, 2006 Seattle Weekly article, "Broke as a Smoke"    by Phil Dawdy:

"6. Senator Kohl-Welles is also attributed with specific views concerning exemptions to I-901 in Mr. Dawdy's article:

"Kohl-Welles also says that the Legislature should take up exemptions to the smoking ban for places like private clubs, cigar bars, and tobacco stores."

Well that's interesting. So tribal hospitality venue and hotel employees and patrons under I-901 - plus employees and patrons in private clubs, cigar bars, and tobacco stores with Senator Kohl-Welles' exemptions - are not harmed by ETS, but employees and patrons of nontribal casinos, restaurants and bars are? Again, a critical point emerges concerning arbitrary, politically negotiated issues. The following case comes to mind (see item 4. in the attached):

"[U]nder the due process clause, even legislative classifications that result from compromise must bear a rational relationship to a legitimate government purpose." Bowen v. Owens, 476 U.S. 340, 352 (1986)."

The above-referenced action by the Pueblo, Colorado District attorney also raises important questions concerning Uniform Taxation of all Nicotine Delivery Device Products:

1. Why should "Smoke Free" Nicotine Delivery Device manufacturers such as Johnson & Johnson, which manufactures NicoDerm CQ for its distributor GalxoSmithKline, enjoy a special privilege of exemption from excise taxes, while tobacco Nicotine Delivery Device manufacturers charge their consumers artificially-inflated prices to pay punitive excise taxes to states?

2. Why should "Smoke Free" Nicotine Delivery Device manufacturers such as Johnson & Johnson, which manufactures NicoDerm CQ for its distributor GalxoSmithKline, be permitted to exploit its special-privilege of exemption form state excise taxes, to pocket unwarranted profits through Parity Pricing their delivery devices with cigarettes and pocketing the tax spread?

While there can be little doubt that the fat cats form Big Drugs would enjoy a festive repast in Seattle El Gaucho's cigar room, to meet with political wheels and discuss divvying up this year's tax-ban-exemption legislative haul, that political environment appears to run well-afoul of basic constitutional mandates. It is far past time for legislators to consider the constitutional implications of throwing everyday consumers, taxpayers and small business owners to the wolves, in ever-expanding pursuit of more unjust profits to political insiders and Big Drugs. It is also well past time for state departments and agencies, such as the Office of the Attorney General and Department of Revenue, to act on behalf of consumers and taxpayers.


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