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April Fool’s Day: Choked Up In Washington
By Norman E. Kjono, April 2, 2004

April Fool’s Day: Choked Up In Washington
By Norman E. Kjono, April 2, 2004
The final wording for Breathe Easy Washington’s statewide smoking ban Initiative 890, and that of associated Washington Breathe, was complete and posted at close of business April 1, 2004. Readers can confirm the Ballot Title and Ballot Summary wording for I-890 by going to the Web site for the Washington Secretary of State and scrolling down to that initiative number.
According to Revised Code of
Washington
RCW 29.79.035
, the ballot title and summary for initiatives
in
“The attorney general shall specify the statement of subject and concise description for an initiative to the people, an initiative to the legislature, and a referendum measure. The statement of subject and concise description as so provided must be included as part of the ballot title unless changed on appeal.” (Underline added.)
To my layman’s understanding title and summary information is intended to describe an initiative for purposes of use with petitions to place it on the ballot and to accurately inform voters what they are voting for, should an initiative qualify for the general election. I-890’s title and summary say:
“Ballot Title
Initiative Measure No. 890 concerns
amending the Clean Indoor Air Act regarding smoking
prohibitions.
This measure would prohibit smoking in buildings and vehicles
open to the public and places of employment, including areas
within 25 feet of doorways and ventilation openings unless a
lesser distance is approved.
Should
this measure be enacted into law? Yes[ ] No[ ]
Ballot Measure Summary
This measure would prohibit smoking
in public places and in places of employment. Current laws
allowing designation of certain smoking areas would be repealed,
including current provisions allowing designation of an entire
restaurant, bar, tavern, bowling alley, skating rink, or tobacco
shop as a smoking area. The prohibition would include areas
within 25 feet of entrances, exits, opening windows and
ventilation intakes, unless shorter distances are approved by
the director of the local health department.“
The first paragraph of the language in the Washington RCW statute that defines how initiative ballot titles and summaries must be prepared by the Office of the Attorney General of Washington says:
“1) The ballot title for an initiative to the people, an initiative to the legislature, a referendum bill, or a referendum measure consists of: (a) A statement of the subject of the measure; (b) a concise description of the measure; and (c) a question in the form prescribed in this section for the ballot measure in question. The statement of the subject of a measure must be sufficiently broad to reflect the subject of the measure, sufficiently precise to give notice of the measure's subject matter, and not exceed ten words. The concise description must contain no more than thirty words, be a true and impartial description of the measure's essential contents, clearly identify the proposition to be voted on, and not, to the extent reasonably possible, create prejudice either for or against the measure.” (Underline added.)
There was considerable discussion over the above wording for I-890’s Ballot Title and Ballot Measure Summary. I exchanged several E-Mails with the Solicitor General’s team in the Washington Attorney General’s office regarding how I-890 is being presented to the public. In a March 31, 2004 E-Mail to me Mr. Even with the Attorney General’s office said:
“After considering the matter, we remain concerned about the idea of mentioning an "exemption" for tribal establishments. The initiative doesn't provide for such an exemption, so saying that they are exempt is not a description of the initiative. An initiative, like any state law, applies only where state law applies. This is true of any initiative. Since it is not a description of contents of the initiative we are disinclined to mention it in the title.”
The above response was the essence of the reason why the Attorney General’s office also refused to insert the word “nontribal” when referencing where I-890 applies. Referencing the tribal issue in I-890 is important because it goes to the heart of several core issues about that initiative.
Well, it is the Attorney General office’s statutory job to make decisions about ballot title and description content, and the language of I-890’s description is uniquely theirs after considerable public input and comment. We the people necessarily rely on the in the Attorney General’s office to do their job. But in this case were the people’s views perhaps just a little more remote in the AG’s mind than what special-interest Breathe Easy Washington and Washington Breathe had to say?
I believe that the exclusion of any reference to the fact that tribal hospitality facilities such a casinos, restaurants, and taverns are exempt from the I-890 smoking ban is a principal defect in the above language. I believe that omission creates very misleading language because it crafts petition and ballot language that can lead people to assume that they are supporting or voting for an initiative that prohibits all smoking in all public places and all places of employment, “protects” all workers and patrons from the alleged dangers of Environmental tobacco Smoke, and does so without severe and potentially dangerous consequences in related areas. That is simply not the case, nor could it be when considering tribal sovereignty and important facts about Indoor Air Quality regulation.
It is also apparent that one consequence of I-890, a
migration of hospitality business from nontribal to tribal
hospitality establishments as already observed in
I believe that the principal issues about I-890 can be summarized as follows:
First: All tribal facilities -- including tribal restaurants, taverns, bars, and casinos, etc. -- are exempt from I-890. Tribal casinos, and restaurants or taverns housed within them, can, do, and will continue to permit smoking. That strongly tilts competition in the hospitality industry in favor of tribal establishments. It is highly unlikely that tribal establishments will voluntarily forego the competitive business advantage that smoking ban assure they have.
Second: In light of the tribal exemption I-890 DOES NOT and CANNOT prohibit smoking in all Washington public places and all places of employment, as has been incorrectly stated by Breathe, its point person and the press on several occasions to date.
Third: I-890 DOES not and CANNOT “protect” all workers and patrons from the alleged dangers of Environmental Tobacco Smoke (ETS). In fact, we can reasonably expect that – due to the virtually exclusive franchise (military bases are also exempt from I-890) to accommodate patrons who choose to smoke as an integral part of their hospitality experience that is given to tribal hospitality establishments – many patrons and employees of tribal facilities could be exposed to more ETS than at present.
Fourth: I-890 does nothing about any Indoor Air Quality (IAQ) constituent other than ETS, nor does it provide for any ventilation standards or IAQ remedial measures. Improved ventilation standards, upgraded ventilation systems and maintenance, and genuine Indoor Air Quality assessment in Washington ARE NOT addressed by I-890. For example, particulates such as exhaust contaminants and pollens or fibers, biologics such as molds and bacteria that can cause Legionnaire’s Disease and other serious or deadly illnesses, and gaseous pollutants such as that caused by heat in food preparation or petrochemical product off-gassing are not addresses by I-890. The scope of genuine Indoor Air Quality is much greater than a mere fixation on tobacco smoke, and includes several other pollutants as well as operation and maintenance of ventilation equipment. So it cannot be said by any stretch of one’s imagination that I-890 is a “Clean Indoor Air” initiative.
Fifth:
Under I-890 the exemption that nontribal hospitality
establishments presently have under
Sixth:
The difference in exemptions – tribal would be exempt and
nontribal would be required to comply with I-890 -- sets up a
migration of business in the
Seventh:
I-890 would cause a
change in the tax base for cities and counties statewide.
Along with the predictable migration of hospitality
business from nontribal to tribal facilities comes – as already
observed in
Cost or Regulation Nontribal Businesses Tribal Businesses
Taxes:
Labor and Industries Insurance: Yes Exempt
Unemployment Insurance: Yes Exempt
Business & Occupation Tax: Yes Exempt
Property Taxes: Yes Exempt
Business Costs And Compliance:
Minimum Wage: State $7.16 Federal, less tip offset
Building and Construction Permits: Required Exempt
Occupancy Inspections: Required Exempt
Food and Health Inspections: Required Exempt
Shorelines Management Act: Compliance Required Exempt
Growth Management Act: Compliance Required Exempt
State Environment Policy Act: Compliance Required Exempt
State Water and Utilities Laws: Compliance Required Exempt
More than 1 million citizens in
The
With
In light of the
competitive economic business advantages that tribal facilities
enjoy it can be reasonably expected that the new $200 million
casino in Tacoma that reportedly will employ 2,500 workers will
displace many small neighborhood taverns, restaurants and other
establishments due to migrations of patrons. While some of that
migration could be accounted for by an attractive new facility,
I-890 will provide a decisive competitive advantage to the new
casino for many patrons who choose to smoke. The nontribal local
neighborhood small hospitality businesses that will be displaced
– closed – by that decisive competitive advantage currently pay
taxes, state insurances, and other costs that the new casino
will not. What is the economic loss to
Eighth: The alleged risks of Environmental Tobacco Smoke (ETS) are not as represented by sponsors and proponents of I-890. February 24, 2003 The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) published its “Reiteration Of Existing OSHA Policy In Indoor Air Quality.” That document states, in part:
“Although OSHA has no regulation that addresses tobacco smoke as a whole, 29 CFR 1910.1000 Air contaminants, limits employee exposure to several of the main chemical components found in tobacco smoke. In normal situations, exposures would not exceed these permissible exposure limits (PELs), and, as a matter of prosecutorial discretion, OSHA will not apply the General Duty Clause to ETS.” (Underline added.)
That constituents of Environmental Tobacco Smoke do not exceed – in fact do not approach – Permissible Exposure Levels in normal workplace environments was recently confirmed by a large October 2003 study of Australian hospitality establishments, “Designated ‘No Smoking’ Areas Provide From Partial To No Protection From Environmental Tobacco Smoke,“ published in the journal Tobacco Control. To illustrate, OSHA publishes a Permissible Exposure Level for nicotine in its “Workplace Standards” statement of 0.5 milligrams per cubic meter. 0.5 milligrams (mg) = 500 micrograms (ug). That study of 17 social and gaming clubs – the same type of hospitality establishments regarding I-890 – clearly shows that ETS constituents do not exceed OSHA’s PELs in normal hospitality work environments.
The upper boundary NICOTINE exposure levels reported in that study are 100.5 micrograms per cubic meter in smoking areas and 41.3 micrograms per cubic meter in nonsmoking areas. The Australian study published by the journal Tobacco Control confirms that upper boundary ETS constituent nicotine exposures in social and gaming hospitality establishments range from less than one-tenth to only one-fifth of OSHA’s Permissible Exposure Levels. Given the very low level of exposure (1/10th to 1/5th of OSHA PEL) to an ETS constituent unique to tobacco smoke (nicotine) it is extremely improbable that PELS for other ETS constituents would be exceeded. That observation is buttressed by the fact that some of the ETS constituents, such as Carbon Monoxide and Formaldehyde, are not unique to ETS and would be a part of the background environment.
Finally, as to ETS it bears mention that OSHA withdrew its proposed indoor air quality regulations that included a nationwide workplace smoking ban in December 2001, with the support of tobacco control advocates. Please see “OSHA Withdraws Indoor Air Proposal With Support Of Anti-Smoking Groups” December 14, 2001, which reports:
“WASHINGTON -- Assistant Secretary for Occupational Safety and Health John Henshaw announced that OSHA is withdrawing an inactive indoor air quality regulation proposed in 1994. The decision was reached with the support of major anti-smoking public health groups including the American Heart Association, the American Cancer Society, the American Lung Association, Americans for Nonsmokers' Rights and the Campaign for Tobacco-Free Kids.” (Underline added.)
The American Heart Association, the American Lung Association, and the American Cancer Society are members of the Washington Breathe coalition, an integral part of Breathe Easy Washington, and staunch and proponents of I-890. The fact that those three organizations have previously supported OSHA’s withdrawal of its proposed Indoor Air Quality regulations – in addition to considering the different scope of IAQ versus smoking bans as noted above --should preclude any representation that I-890 is an “Indoor Air Quality” or “Clean Indoor Air” initiative. The sponsors and/or proponents of I-890 cannot reasonably state that the initiative is a “Clean Indoor Air” measure without overtly misleading the public when “Clean Indoor Air” is a broader and different subject that a mere smoking ban and those sponsors or proponents have previously supported withdrawal of federal Indoor Air Quality regulations.
Ninth:
It must be considered that for the past three legislative
sessions our state legislature has refused to pass a statewide
smoking ban. In light of the previous eight points perhaps
we can understand why. It also becomes apparent that perhaps
there are many good and valid reasons why the legislature has
refused to do so, reasons that have nothing to do with the
alleged influence of the tobacco lobby in
Tenth:
if qualified for the ballot and passed, I-890 would expand
statewide the current migration of business from nontribal to
tribal businesses that has already been confirmed by the
smoking ban in
To become grounded in comparative facts and representations
about I-890 I recommend that readers go to the
“Board of
health chairman Kevin Phelps said that, unlike the coalition's
initiative, Pierce County's ban and Breathe Easy's initiative
protect all
hospitality workers from secondhand smoke. ‘Patrons have
a choice of where they go. Workers don't,’ said Phelps, a
In short, Mr. Phelps accuses sponsors of I-889 of “tricking voters” with a “ruse” about what neither the smoking ban in Pierce County that he championed nor I-890 for which he is the press-identified “point person” do, either: to “protect all hospitality workers from secondhand smoke.” In fact, given the migration of hospitality business from nontribal to tribal establishments under I-890 and the expansion of tribal exempt hospitality facilities that will predictably occur should that initiative pass, it is reasonable to assume that an increasing number of restaurant, tavern and casino patrons and workers will be exposed to more Environmental Tobacco Smoke in those facilities than at present. Claiming that tribal facilities could have nonsmoking restaurants, etc. doesn’t solve that problem any more than it does without I-890 because patrons in a nonsmoking restaurant that is housed in a casino would still be exposed to the allegedly extreme hazards of even trace Environmental Tobacco Smoke that are so widely touted by anti-tobacco activists and their supporters such as Mr. Phelps.
When we consider the above facts about I-890 it becomes evident
that the choice for voters extends well beyond a personal
preference to patronize a Smoke Free restaurant, bar, tavern, or
casino. With public buildings and about 80 percent of
restaurants in
1. Can and does I-890 actually accomplish for the people what its proponents have claimed? I believe the answer is a clear and unequivocal no. Due to the fact of tribal exemption I-890 does not and cannot prohibit smoking in all public places and all places of employment. The failure of I-890 to accomplish what its proponents have claimed also imposes several unfavorable consequences.
2. What is I-890’s impact on important Indoor Air Quality ventilation standards and remedial measures? It will permanently substitute statewide the prohibition of only one indoor air constituent – Environmental Tobacco Smoke – for genuine and comprehensive Indoor Air Quality measures.
3. With the migration of hospitality business from nontribal to tribal establishments what changes to the tax base that cities, counties and the state rely on to provide services does I-890 impose? As noted in the Seventh consideration above there will be several changes in the tax base, most of which result in lower tax receipts from hospitality establishments.
4. Are all hospitality workers really “protected” from the alleged hazards of Environmental Tobacco Smoke by I-890, and could more hospitality workers be exposed to ETS by I-890? All hospitality workers are not “protected” from ETS smoke through I-890. We can reasonably expect that the migration of smokers from non-exempt to exempt hospitality establishments will lead to more hospitality workers being exposed to more tobacco smoke in exempt facilities.
5. Is granting an exclusive franchise – a monopoly – to accommodate patrons who smoke as part of their hospitality experience to tribal authorities a desired outcome of I-890? I do not believe so. Not only is granting a monopoly to accommodate a large segment of the hospitality trade a bad idea on its face, but that monopoly would be given to establishments that are exempt from any requirement of I-890 that they “protect” their employees or patrons from Environmental Tobacco Smoke.
6. If Environmental Tobacco Smoke does not present the health risks as represented by I-890 proponents, why impose the other consequences of that initiative on city and county tax bases, impair genuine Indoor Air Quality Measures, fail to provide equal air quality facilities for both tribal and nontribal hospitality workers, and grant a monopoly to tribal establishments for a large segment of the hospitality trade that chooses to smoke? I do not believe that we should do so.
People should vote and have every right to vote as they choose.
Having said that, however, an equally important issues presents
itself: what is one
actually voting for? The foregoing realities,
their implications, and how we got here to begin with, about
I-890 should be of concern to citizens and voters in
In light of the fact that most
public facilities and about 80 percent of
Considering that Mr. Phelps’ false statement echoes what Dr. Koop has been proclaiming in television advertisements over the past several months that becomes an extremely important issue that not only addresses the merits of I-890 by also extends to the veracity and credibility of what I-890 proponents say. Since proponents’ statements to the public would be intended to influence folks to sign a petition to put I-890 on the ballot and to vote for it in the November 2004 general election, should that initiative gather enough signatures to qualify for the ballot, they are worthy of close scrutiny.
Issues regarding tobacco control and its claims about Environmental Tobacco Smoke are contentious and complex. They therefore merit careful consideration by citizens in general as to public policy and those who promote changes, and in particular as to I-890 as an extension of special-interest agendas. As pointed out above, a mere smoking ban does not by any credible measure equal a “Clean Indoor Air” initiative. In addition, an initiative than DOES NOT and CANNOT do what its proponents claim is misleading. Perhaps there are credible, valid, and important reasons why our legislators have shown the legislative restraint of refusing to pass a statewide smoking ban for the past three legislative sessions. And those reasons could include important considerations that have nothing to do with the alleged influence of tobacco companies in our legislature, such as fundamentally changing the competitive rules for the hospitality industry in our state.
As the facts come out it will become
apparent that as presently drafted I-890 is a special-interest
initiative sponsored by policy advocates who are beholding to
out-of-state interests. The facts say that I-890 will impose a
hidden mercantile agenda on the people of the State of
We can and should do better than
that for small businesses, consumers, and people in the State of
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