Monthly Archives: October 2009

Post-Dispatch 10/23/09: “City aldermen endorse smoking ban — now look to county voters”

Unexpectedly good news from the City of St. Louis! It appeared even quite recently that Ald. Lyda Krewson’s efforts at passage of a smoke-free air bill, even with weakening amendments, was being stymied.

On October 7, Post-Dispatch reporter Jake Wagman wrote on his political blog a story titled “Smoking ban proposal, as amended, trudges along at City Hall” after Krewson’s bill was finally voted out of the Board of Aldermen’s Health Committee. Yet earlier today, it came before the full Board of Aldermen and received a lopsided vote of 20 to 7.

It won’t go into effect unless St. Louis County’s ordinance, which is on the November 3rd ballot, is also approved by a majority of county voters, which makes that vote even more crucial for both proponents and opponents of smoke-free air. Metro St. Louis is poised to take a major step forward on this issue. It remains to be seen if health will prevail.

10.23.2009 3:01 pm
City aldermen endorse smoking ban — now look to county voters
By Jake Wagman
St. Louis Post-Dispatch

ST. LOUIS — After a marathon session of debates and amendments, city aldermen approved a bill Friday banning smoking in most bars and restaurants on Friday.
Now they’ll have to wait for the county to decide if it goes into effect.

The bill, approved by a sizable majority, would ban indoor smoking — with several key exceptions — provided St. Louis County approves a similar prohibition.

If nothing else, the board’s action increases the stakes at next month’s election, where voters in St. Louis County will now, in effect, decide the smoking ban issue for much of the region.

The plan passed at City Hall, like the county version, exempts casino floors, some hotel rooms, private clubs and tobacco stores.

But, in the city, small bars — defined as establishments with 2,000 square feet or less of service space where food sales are “incidental” to alcohol consumption — would be allowed to wait five years before having to comply with the ban.

The provision was introduced to protect neighborhood taverns already struggling in a tough economic climate. The county plan has a provision exempting “drinking establishments” — where equals 25 percent or less of total sales — from following the ban at all.

For most city businesses, the ban would go into effect Jan. 1, 2011, but only if voters in St. Louis County approve a similar measure on Nov. 3.

Supporters of the city’s ban, such as the mayor and others, were concerned that acting alone would put St. Louis businesses at risk of losing customers across the city limits.

It was also the proposal that backers thought had the best chance of passing, even if some criticized it as toothless and lacking punch.

“It’s just not pure enough to win the support of many groups,” said sponsor Alderman Lyda Krewson said. “But I consider this to be a pragmatic bill. This bill is not a bill for the extremists on either side.”

The local chapter of the American Cancer Society issued a statement immediately after the decision saying they were “extremely disappointed” by the “watered down smoke free law.”

“Partial measures work for politicians but not for health,” the statement said. “In essence, we’re telling some workers they warrant legislative protection, while telling others they don’t.”

The board approved the bill by a 20-7 margin. Before sending it to the mayor’s desk for final approval, aldermen must vote one more time on the proposal. It’s unlikely, though, that any aldermen — let alone enough to prevent final passage — would change their votes. Amending the bill in the latter stages is also difficult.

Alderman opposing the bill included Benton Park Alderman Ken Ortmann, who owns a tavern in Soulard, and Bevo Mill Alderman Stephen Gregali, who at one point during the four-hour meeting asked that his ward be excluded from the ban.

This is a “chicken you know what kind of bill,” Gregali said, who protested the exemptions.

“If we’re going to ban smoking, let’s do it,” Gregali said. “If the bars aren’t going to go out of business, either will the casinos.”

Alderman Kacie Starr Triplett introduced a measure that would have banned smoking on casino floors, but it was soundly defeated.

“Whether it’s a small business café or multi-million dollar casino, no business should be exempt from ensuring that our city residents are able to breathe clean air in the workplace.” Triplett said in a statement after the vote.

St. Louis follows Kansas City, Clayton and Columbia, Mo. in passing smoke-free legislation. Illinois already has a statewide ban, meaning that, if county voters embrace a ban, most of the region would have some level of restriction on indoor smoking.

Krewson said she hopes the vote will lead to smoke-free advocates in the city to campaign in favor of the county measure.

But, Krewson acknowledged, that goes both ways.

“People that are opposed to things are often more vocal,” Krewson said.

What’s in Prop N? The St. Louis County smoke-free air ordinance reviewed

I recently read a Kansas City Star columnist bashing the proposed Prop N, the countywide smoke-free air ordinance, which is on the St. Louis County November 3 ballot. I’ve written a Letter to the Editor in reply. You can read both the column and my reply below.

Voters will decide whether or not this important law will actually go into effect or not. It is being opposed by a group of of bar owners and others, almost all of whom don’t support smoke-free air. But the opposition also includes the voluntary health agencies, like the American Cancer Society. Like us, they wanted a stronger bill but unlike us, when they didn’t get it they decided to trash this bill as absurdly weak. I agree with some of their arguments against it – we made similar ones too when we were pushing for a stronger bill – but the fact is, this is still a good bill worth supporting. The voluntary health agencies should acknowledge that and not spread disinformation about it.

To rectify that I’ve posted below the actual bill approved by St. Louis County Council and signed by County Executive, Charley Dooley. You can verify for yourself if this is such a weak bill that it doesn’t deserve support.

Here’s the Kansas City Star column by Yael T. Abouhalkah, e-mail abouhalkah@kcstar.com:

Kansas City Star columnist Yael T. Abouhalkah

Kansas City Star columnist Yael T. Abouhalkah

Kansas City took about four years to finally pass a strong, effective smoke-free law. But St. Louis County — the biggest in Missouri with 1 million people — is still far, far behind us.
On Nov. 3, voters in the county will go to the polls to decide the fate of a proposed smoking ban. But it’s an absurdly weak one, because it would allow smoking in many bars plus parts of the airport.
In fact, groups that usually support smoke-free laws, such as the American Cancer Society, have said they oppose the county’s plan. The groups figure that passing a sham of a law would make it tougher to approve a stronger one in the future.
But County Executive Charlie Dooley refused requests to veto the proposed ordinance. Dooley, who said he supports a statewide ban, said he wanted to give voters a chance to back a law that would be better than the status quo.
The machinations in St. Louis County show — once again — how foolish it is to have cities pass piecemeal attempts to protect the health of millions of Missouri residents.
A statewide, wholesale smoke-free law that would prohibit smoking in all public places is needed.
The General Assembly show approve that kind of law in 2010, and end the time-consuming waste of energy on passing patchwork laws throughout the state.

And here’s my response, e-mailed 10/19/2009:

Mr. Yael T. Abouhalkah supports smoke-free air but echoes the American Cancer Society’s unfair criticisms in his column “St. Louis County’s pathetic anti-smoking plan” (Oct. 12, 2009). He describes Proposition N on the Nov. 3 St. Louis County ballot as “absurdly weak.” That is simply untrue.
Missouri GASP, which has been promoting smoke-free air for 25 years, has focused on local smoke-free air ordinances after concluding that the tobacco lobby exerts overwhelming influence at the state level. Others now share our view and that has finally borne fruit in metro St. Louis.
Missouri GASP worked hard to eliminate the exemptions from the St. Louis County bill, especially three of them: small bars, casino gaming floors, and Lambert Airport’s smoking rooms. We weren’t successful, but the bill still covers all public and the overwhelming majority of private workplaces, as can be verified by checking the bill on-line at http://tinyurl.com/yg9o23h.
For example, every restaurant, with or without a bar, will be smoke-free, whereas almost all existing local ordinances exempt them.
This will be a major catalyst for action on this issue, substantially improving public health and welfare. We strongly support it.

Here’s further background:

A stronger bill that the voluntary health agencies and Missouri GASP supported, but which failed on a 3:4 vote, still contained these seven exemptions:

1. Private residences
2. Private clubs
3. Performers on stage in theatrical productions
4. Private and semi-private rooms in nursing homes where everyone agrees to allow smoking in them
5. Tobacconists
6. Up to 20% of designated hotel/motel guest rooms
7. Cigar bars already in operation

The three additional exemptions in the bill on the ballot as Prop. N are:

8. Casino gaming areas
9. Drinking establishments already in operation where drinking comprises 75% of revenue
10. Lambert Airport designated smoking rooms.

Note that even the current 100% model ordinance of Americans for Nonsmokers Rights exempts private residences and 20% of hotel/motel guest rooms.

Please click the link http://tinyurl.com/yg9o23h to view/download the ordinance if you have difficulty reading the pages copied below. The exemptions are listed in Section 605.060.

Prop. N: St. Louis County Bill#228 page 1

Prop. N: St. Louis County Bill#228 page 1


Prop. N: St. Louis County Bill#228 page 2

Prop. N: St. Louis County Bill#228 page 2


Prop. N: St. Louis County Bill#228 page 3

Prop. N: St. Louis County Bill#228 page 3


Prop. N: St. Louis County Bill#228 page 4

Prop. N: St. Louis County Bill#228 page 4


Prop. N: St. Louis County Bill#228 page 5

Prop. N: St. Louis County Bill#228 page 5


Prop. N: St. Louis County Bill#228 page 6

Prop. N: St. Louis County Bill#228 page 6


Prop. N: St. Louis County Bill#228 page 7

Prop. N: St. Louis County Bill#228 page 7


Prop. N: St. Louis County Bill#228 page 8

Prop. N: St. Louis County Bill#228 page 8

Post-Dispatch 10/14/2009: “Push to derail smoking ban begins”

On Tuesday, September 29th, a new citizen’s group met to support Proposition N, the November 3rd St. Louis County ballot initiative for smoke-free air in most private workplaces. Leading the group is former Ballwin alderman, Charles “Charley” Gatton, and co-chair Ballwin Alderman Jane Suozzi.

Co-chairs Ald. Jane Suozzi & Charley Gatton at kickoff meeting

Co-chairs Ald. Jane Suozzi & Charley Gatton at kickoff meeting of County Citizens for Cleaner Air


Both the above are best known for the City of Ballwin’s comprehensive smoke-free air ordinance which was originally sponsored by Charley Gatton. Ballwin’s ordinance is presently the strongest in the St. Louis metro area. (See Sec. 17-65. Ballwin Clean Air Act and search on title.)

Post-Dispatch Reporter Phil Sutin posted a story to the Political Fix blog on October 5 titled:

Campaign committees form for both sides in St. Louis County smoking ban vote.

The story briefly described the aims of Citizens for a Smoke-Free County (since renamed County Citizens for Cleaner Air) and Citizens Against Proposition N, whose spokesperson is Tom Sullivan.

Tom Sullivan

Tom Sullivan

Today (Wednesday, October 14, 2009) Citizens Against Proposition N held a news conference reported in both the Riverfront Times blog and the St. Louis Post-Dispatch on-line.

The RFT story and photo by reporter Chad Garrison was published under the headline:

Smoking Ban Opponents Organize; Remind Public to Vote No on Prop. N

Following are excerpts from his report:

Citizen's Against Prop. N: Rev. Harold Hendrick, Fred Teutenberg, Scott Simon, Jon Rand, Bill Hannegan

Citizen's Against Prop. N: Rev. Harold Hendrick, Fred Teutenberg, Scott Simon, Jon Rand, Bill Hannegan

A somewhat unlikely group of bar owners, bowling advocates, tobacco salesman and — yes — a Christian radio host, gathered today in University City to announce their opposition to a smoking ban proposal for St. Louis County.

Perhaps the best-known smoker in all of St. Louis — Fred Teutenberg — was also on hand to argue against the ban. The former pitchman for Dirt Cheap Cigarettes & Beer, Teutenberg recently parted ways from his old employer to start his own low-cost tobacco store: Fred’s Cheapo Depot.

​”Let the marketplace decide the matter, not the government,” said Tuetenberg in a speech punctuated by what seemed to be a smoker’s hack.

The Rev. Harold Hendrick, director of public affairs for Christian broadcaster Bott Radio Network, said he opposes the ban because of its exemption of casinos. “Here again we have the county caving in to casinos, just so it can go to them hat in hand and make sure it’s getting its cut.”

Bill Hannegan, founder of Keep St. Louis Free, meanwhile cited statistics suggesting that county bars and restaurants could expect to lose revenue if a ban were enacted. Hannegan also warned that he and others would sue the county should the measure be voted into law.

This summer the Missouri Supreme court rejected a lawsuit challenging Kansas City’s smoking ban. Hannegan says a lawsuit against St. Louis County would not challenge the ban, per se, but the constitutionality of excluding some businesses over others.

St. Louis Post-Dispatch. Reporter Margaret Gillerman posted a report on-line (see below) which garnered its first comment from chad peleck at 3:49PM CST asking: No quote by Hannegan?

By 9:30 pm there were 68 comments with NONE, repeat NONE from Bill Hannegan. Perhaps he was forestalled by this early comment, posted by mpkunz at 4:11PM CST, October 14, 2009:

To save people time, I can give you a head’s up on what others will post. Hannegan will start to quote a bunch of studies that purport to show that smoking bans hurt the economy and that there is no real proof that second-hand smoke harmful (raise your eyebrows here and all say, “insane”). Others will say it infringes on their civil rights. People will start calling each other names (like “insane”…. 🙂 ) and next month we will get to put this to bed and move into a smoke-free 21st century, like most of the rest of America.

Here’s the full on-line Post-Dispatch story:

Push to derail smoking ban begins
By Margaret Gillerman
ST. LOUIS POST-DISPATCH
10/14/2009

A coalition of merchants and organizations in St. Louis County announced its opposition today to Proposition N, which would ban smoking in most public places throughout the county.

More than a half dozen representatives and owners of bars, restaurants, tobacco shops, bowling alleys and others said they had formed a campaign committee and planned to spend money to fight the proposed ban on the Nov. 3 ballot. The “Citizens Against Proposition N” committee contends that a smoking ban would have a negative impact on county businesses and result in a loss of freedom for owners and smokers.

Jon Rand, president of Discount Smoke Shops, said that businesses are closing already because of the poor economy. He said that as long as neighboring counties do not have smoking bans, St. Louis County businesses could be hurt by a ban and that tax revenue and jobs would decline.

“Why would you want to drive business from one county to another – put jobs in jeopardy – during a time like this?” Rand said at a news conference called by the ban’s organized opponents.

The ban would prohibit smoking in indoor public areas countywide except on casino floors, in smoking lounges at Lambert-St. Louis International Airport and in bars that have incomes from food at 25 percent or less of gross income. If voters approve, the ban would take effect on Jan. 2, 2011.

Supporters of Proposition N have formed their own committee, County Citizens for Cleaner Air. That group says that a smoking ban in public places is essential for public health and would save lives. It would be good for citizens, for workers, businesses and families, they say.

Advocates of a ban say also that the St. Louis area and Missouri lag far behind most of the rest of the country in adopting bans. Only Clayton, Ballwin and Arnold have adopted bans and a ban is on the ballot in Kirkwood in November. Other Missouri cities with bans include Kansas City, Columbia and Springfield. Illinois has a statewide ban.

At the news conference today called by local ban opponents, Fred Teutenberg. president of Fred’s Cheapo Depot and formerly with Dirt Cheap, predicted St. Louis County businesses and tax dollars would head to St. Charles and Jefferson counties if voters approved the ban.

“Each individual bar and restaurant owner should be able to make their own decision based on what will please their customers,” he said.

Gerard Ezvan, owner of Jon’s Pipe Shop in Clayton and a native of France who became an American citizen, said: “A smoking ban would diminish personal freedom. It would also hurt the business I have spent many years building up.”

Rev. Harold Hendrick of the Bott Radio Network denounced what he said was an “unfair and discriminatory exemption” to the ban to benefit casino gambling floors. He said St. Louis County government was “coddling casinos.”

“Once again, government has caved in to predatory casinos,” he said.

“Someday Tobacco May Be Like Lead Paint”

The letter reproduced below was published in the September 24, 2009, issue of the Webster-Kirkwood Times. It was clipped from the newspaper and mailed to me by Peggy, a friend of my wife’s and Kirkwood resident who also supports smoke-free air. I’m grateful to her because I don’t routinely check out these letters on-line.

As Peggy remarked, this letter was a standout from the normal ho-hum variety.

The writer talks about banning smoking. That’s something opponents of smoke-free air throw out sometimes too, but that’s designed to divert the argument rather than really promote health and welfare; there’s no way tobacco products will be made illegal in the U.S. and we, for one, are not advocating it.

Missouri GASP’s focus is on smoke-free air in public places and the private workplace, with the eventual goal of smoking being done “only between consenting adults in private.” That would also mean no smoking around children in the home or in cars. It would also mean no smoking in outdoor public places. Eventually that may happen, but for now it’s hard enough getting indoor places smoke-free.

Letters from former smokers like James Mills of Kirkwood help. Here’s his letter:

Someday Tobacco May Be Like Lead Paint

In a comedy skit by Bob Newhart, he pretends he is getting a new idea from Sir Walter Raleigh in the colonies: “What’s that Wallie, you say you take leaves, roll them up, stick them in your mouth…then you light them on fire…OK, then what? You say you then breathe the smoke into your lungs. Well, I don’t think that is going to be a good idea, Wallie!”

Well, that is what countless many do though.

I smoked and ended up with throat cancer. The cure was neck disection and radiation which wiped out my taste buds and saliva glands.

Interestingly, the federal government bans and regulates anything that is known to cause cancer, except cigarettes! What is sacred about tobacco that we aren’t protected from it? Oh, it is a profitable industry. I see and there is the ability to hide within the insistence of some sadly-addicted folks’ strong ideal about freedom (today’s easy banner to wave for anyone defending a bad habit). I find that the people who are talking “freedom…” well, that is usually all they are talking about. They never talk about consequences.

As for me, after sitting in my doctor’s waiting room, and seeing the tongues gone, the voice boxes missing, the jaws sawed off and the lugging of oxygen bottles, I am for – yes, dare I say – at least banning smoking where the public is entitled to go.

Smoking is a stupid habit, and I was once stupid. I wish tobacco had been banned. I would be better off today.

If you want to put leaves in your mouth, light them on fire and take the cancer-causing smoke into your mouth, throat and lungs, do it. But please don’t do it in my space.

Banning is a good idea, not a bad idea.

Maybe one day tobacco will have fallen into the category of things like asbestos and lead paint. Future generations will say “can you believe those folks actually wanted to smoke and the smokers actually fought to do it in spaces where the public went?”

James Mills
Kirkwood
September 24, 2009

Councilman Stenger insisted on exemptions for casinos, bars, & airport in Fraser’s bill. Why?

Post-Dispatch reporter Phil Sutin posted the story copied below to the Political Fix blog on August 13, 2009, but so much was happening at the time it didn’t make it to the mogasp blog until now. It’s important for historical reasons, however, since it provides some insight into why Councilwoman Barbara Fraser’s bill ended up with additional important exemptions. They were added at the insistence of Councilman Steve Stenger in exchange for his support but his explanations for why he wanted them are still unclear and reporter Phil Sutin’s account leaves unanswered questions which subsequent statements don’t clarify.

For example, after the bill was finally signed into law by County Executive Charley Dooley on Friday, August 28, 2009, Councilman Stenger reportedly said he hoped a bill with no exemptions would follow. Here’s what Post-Dispatch reporters Margaret Gillerman and Paul Hampel wrote in their story “County smoking ban goes to voters” which appeared on 08/29/2009:

Stenger said that the exemptions are reasonable for the time being, but that he looked forward to the day when smoking was banned outright in all indoor public places.

I took this statement at face value and on September 3 sent the following e-mail to Councilman Stenger after calling his office:

Dear Councilman Stenger,

Re: Smoke-free air issue

I have not recently requested a meeting with you to discuss the above because in a brief conversation we had after a county council meeting several weeks ago you made your position clear: that your support for Councilwoman Barbara Fraser’s bill was dependent on some significant exemptions.

However, when you were interviewed after the signing of the bill by County Executive Charlie Dooley on August 28, you made the following reported statements, which I’ve since posted to the mogasp blog:

Stenger said that the exemptions are reasonable for the time being, but that he looked forward to the day when smoking was banned outright in all indoor public places.

Maybe it’s premature but in light of the above could we sit down together to discuss possible future collaboration? 

I look forward to your reply at your convenience.

Sincerely,
 
Martin Pion

That was five weeks ago and I’m still waiting for an answer, which makes me wonder if this wasn’t just for public consumption but with no real intention to make it happen.

St. Louis County councilman explains his smoking ban position
By Phil Sutin
St. Louis Post-Dispatch
08.13.2009 11:25 am

Clr. Steve Stenger

Councilman Steve Stenger

St. Louis County Councilman Steve Stenger, D-Affton, denies he is the sole reason that exemptions from casino floors and bars are in a ban on smoking in indoor public places that voters are likely to consider on Nov. 3.

He said Tuesday he favors the exemptions. Others involved in negotiating a bill to put a smoking ban on the ballot also hold that view, he said.

He discounted geography as a reason for backing the exemptions. He has a casino under construction in his district. His district’s bars face competition from nearby St. Louis and Jefferson County.

County Councilwoman Barbara Fraser, D-University City, reintroduced on Tuesday a bill to put the ban before voters on Nov. 3. The bill is her second. The version of the details of the ban is her third; the council never discussed her first version.

A series of 4-3 votes at the Aug. 4 council meeting showed she needed Stenger’s vote and that Stenger wanted the two exemptions in the ban. Fraser on July 28 introduced a bill that called for the November election without specifics of what voters would consider. A week later, Fraser first offered an amendment with the specifics, but without exemptions for casino floors and bars. Stenger voted to add the amendment to the bill. Then he voted against tentatively approving the bill.

In normal council practice, the measure would be defeated. But Fraser proposed another amendment to her original bill, this time with the exemptions. Stenger voted for the amendment and for tentatively approving the bill.

Because of this unusual procedure, Fraser reintroduced the bill on Tuesday to avoid a legal challenge. She had the council drop consideration of her previous bill.

Stenger said after Tuesday’s council meeting that many people wanted a ban without the exemptions. He said he voted for an amendment to Fraser’s bill without exemptions to give the council an opportunity to consider that approach. But, he said, he opposed that idea and voted against the amended bill.

The bar exemption would affect very few establishments, he said. These places “are not where families would go to eat and they are not for children,” he said. They are places where people want to socialize, he said.

Pinnacle Entertainment Inc. of Las Vegas is building a casino in Lemay in the northern end of his district near St. Louis. The county invited Pinnacle to develop the casino site when it did not have a smoking ban, Stenger said. The county owns the site.

Stenger said he has not received campaign contributions from interests that would benefit from the exemptions.

Legal challenge to Kansas City smoking ban fails

This story, which ended with a decision in the Missouri Supreme Court earlier this year, has a long history, going back to shortly after the Missouri Clean Indoor Air Act was originally signed into law in the summer of 1992 by former Governor John Ashcroft.

Missouri GASP opposed the bill because it contained a couple of tobacco industry poison pills but the good thing about the bill finally approved was that a preemption clause, inserted by the tobacco lobby to make this very weak bill the strongest in the state, had been stripped out before it got to the governor’s desk.

However, one thing I had wanted to see was explicit language stating that nothing in the bill prevented stronger local ordinances from being enacted. I raised this concern on May 27, 1992, during negotiations with Mr. Phil Irons, Governor Ashcroft’s lobbyist handling the legislation. He assured me that, if the bill didn’t explicitly mention preemption of local ordinances, then a local ordinance can be stricter than state law.

However, it was troubling that the section of the law relating to the sale of tobacco products to minors specifically allowed stronger local ordinances while lacking similar language for local smokefree air ordinances.

That omission came back to haunt us the following year when Ald. Paul Paradise of the City of Crestwood wanted to make Crestwood Plaza smokefree by local ordinance. The attorney advising the city, Shulamith Simon, of the law firm Rosenblum, Goldenhersh, Silverstein & Zafft, referred to this omission and wrote:

“It is my judgement that the City does not have authority to impose such prohibition.”

Based on that advice Ald. Paradise subsequently withdraw this prohibition from his bill but asked me if Missouri GASP could assist in getting an opinion from the state. I contacted my state representative at the time, Rep. David Hale, and prepared a formal request for an Attorney General’s Opinion on February 22, 1993, which Rep. Hale submitted. Despite numerous repeated requests for a response to Mr. Hiram Watson, who was in charge of legal opinions in the office of the Attorney General, no opinion was obtained.

The matter lapsed until I resurrected it with Sen. John Schneider, who was my state senator at the time. In a 1229/94/1 note in my daily log I have this record:

Called Donna Mueller [751 4106/f2230], Sen Schneider’s secy. re AG Opinion. Donna Mueller said had spoken to Asst Attorney General, Larry Weber, who said that “probability of getting an opinion was slim to none.” Attributed to shortage of staff; prioritization – this has low priority.

However, on January 9, 1995, Sen. Schneider submitted a new Opinion Request to the AG’s office with significantly simplified wording to that submitted in February, 1993, by Rep. Hale, as follows:

1. Can the language of section 191.777 RSMo be interpreted to prohibit stronger local ordinances that regulate smoking?

2. The attorney advising the city of Crestwood has interpreted section 191.777 to prohibit local ordinances that are stronger than state law. The president of the Group Against Smoking Pollution (GASP) disagrees with this interpretation. He interprets section 191.777 as allowing a local government to have stricter regulations on smoking.

There were several subsequent communications with Sen. Schneider but it wasn’t until February 15, 1996, over a year later, that he wrote advising me that:

“At long last and after a great deal of concentrated effort we have secured the enclosed Attorney General’s opinion regarding more stringent regulation of smoking by fourth class cities.”

The opinion ran to just over two pages:

TO ADD

Attorney General Jay Nixon's opinion 80-96 Jan. 12, 1996 page 1


Attorney General Jay Nixon\'s opinion 80-96 Jan. 12, 1996 page 2

Attorney General Jay Nixon's opinion 80-96 Jan. 12, 1996 page 2


Attorney General Jay Nixon\'s opinion 80-96 Jan. 12, 1996 page 3

Attorney General Jay Nixon's opinion 80-96 Jan. 12, 1996 page 3

For me, the important conclusion, based on several references in the Attorney General’s letter, was that stronger local ordinances than the state law were expressly allowed. E.g. near the bottom of page 2:

“A smoking area may be designated … except in places in which smoking is prohibited …. by other law, ordinance or regulation.”

There the matter rested until apparently earlier this year when there was a legal challenge to a stricter local ordinance in Kansas City. Bill Hannegan jumped on the bandwagon, claiming that soon local ordinances stronger than the state law would be overturned, and offering a $100 wager. If I hadn’t been so absorbed in working to promote local legislation I would have taken him up on that bet. Unfortunately, by the time I checked my file and dug out the original letter from the Attorney General it was too late! It would have been satisfying to display a $100 check from Mr. Hannegan, a trophy in the smoking wars to relish.

As I was going through my past notes to compile this blog I came across the phone number for Alderman Paul Paradise and on impulse called to see if he was still alive. His wife, Pat, answered the phone and said he had died in 1998 after a long illness and she missed him.

I’m sure his loss is not lessened by this knowledge, but he was the inspiration for the original Attorney General’s opinion which eleven years later is upheld by the Missouri Supreme Court.

Below is Post-Dispatch reporter Phil Sutin’s on-line report, plus some reader comments, both pro and con:

politicalfix2

Legal challenge to Kansas City smoking ban fails

Post-Dispatch reporter Phil Sutin

Post-Dispatch reporter Phil Sutin

By Phil Sutin
St. Louis Post-Dispatch
10.08.2009 4:10 pm

The state Supreme Court has rejected a challenge to Kansas City’s smoking ban in indoor public places. The court did not accept to an argument that the city could not ban smoking in places where it was allowed or not mentioned in a state law.

Charles Gatton, chairman of County Citizens for Cleaner Air, the campaign committee for a ban in St. Louis County, said on Thursday said the court’s decision makes clear that “there is no question about the legality of” the county smoking ban proposal.

Although the court has dealt with one major issue on smoking bans, others may arise, Bill Hannegan, an opponent of smoking bans for St. Louis and St. Louis County, said. County voters will consider a smoking ban Nov. 3. A committee of St. Louis aldermen sent a city smoking ban to the full board.

In Kansas City, Georgia J. Carlson, operator of JC Sports Bar, violated that city’s smoking ban to set up a test case. She argued the state law gives bars an exemption and the city could not prohibit smoking there.

Kansas City Associate Circuit Judge Richard Standridge in January ruled Kansas City could impose stricter requirements. The state law did not prohibit other entities from regulating smoking, he said.

The western district of the Missouri Court of Appeals in June agreed. And in August, the state Supreme Court declined to hear the case.

Meanwhile, the Clayton Chamber of Commerce has scheduled a short debate for Oct. 26 between County Councilwoman Barbara Fraser, D-University City, the sponsor of the smoking ban, and Hannegan. The session will start at 6:30 p.m. at the Clayton community center, 50 Gay Avenue Clayton.

The candidates to fill a vacancy in the 73rd state representative district in the Richmond Heights area also will debate. They are Stacey Newman, a Democrat, and Daniel O’Sullivan Jr., a Republican.

Assistant Clayton Fire Chief Paul Mercurio will make a three-minute presentation about the proposal on the Nov. 3 ballot for a 0.1-cent sales for a countywide emergency communications system.

Reader’s Comments:

Charlie Gatton is wrong about the legality of Councilman Fraser’s smoking ban. Look for her smoking ban to be challenged on the constitutionality of its casino exemption if it passes.

— Bill Hannegan
4:32 pm October 8th, 2009

Bill – you mean the same exemption that is legal in the Kansas City ordinance will be not be legal in the St. Louis County ordinance?

You know, as long as you keep paying the attorneys, they will keep telling you what you want to hear. How many bets did you lose – I notice that Ballwin and Clayton still have smoking ordinances, despite your promise to have them gone by last month.

— Wino
4:43 pm October 8th, 2009

A casino exemption has never been challenged in Missouri. An attorney I spoke with believes it violates the Special Laws Clause of the Missouri constitution.

— Bill Hannegan
5:28 pm October 8th, 2009

Bill – have you read Prop. 4? It contains a severability clause. I understand that to mean that if any clause if ruled invalid, the rest stay in force. So if you are foolish enough to go to court and try to get the ordinance thrown out, if you are successful all that would do is eliminate the casino exemption. I don’t think that would make you real popular with Harrah’s.

— Wino
5:51 pm October 8th, 2009

Wino, I am not promoting any lawsuit. I am simply warning Harrah’s that they should not feel safe if this passes.

— Bill Hannegan
6:27 pm October 8th, 2009

As we all know, in the USA you can sue (or be sued) by anyone for anything! Just because you sue, Mr. Hannigan, doesn’t mean you’ll win.

Why don’t you do something productive with all the time and energy you have?

— Get a Life
9:55 pm October 8th, 2009

Smoking ban proposal, as amended, trudges along at City Hall

As suggested by the title of this story, which was posted on the Post-Dispatch’s Political Blog by City Hall reporter, Jake Wagman, smoke-free air legislation is making slow and uncertain progress in St. Louis City, and its sponsor, Ald. Lyda Krewson, is being put through the wringer in the process, it appears.

And one wonders what weakening amendments have been added. Wagman mentions delaying the effective date for small bars by 5 years, plus also, like the county bill, exempting casino gaming floors and a percentage of hotel/motel guest rooms. I wonder if it also exempts Lambert Airport’s smoking rooms: the chances are it does.

The bill remains dependent on approval of the county ordinance by voters in November to go into effect.

10.07.2009 3:41 pm
Smoking ban proposal, as amended, trudges along at City Hall
By Jake Wagman
St. Louis Post-Dispatch

ST. LOUIS — A City Hall panel approved a smoking ban proposal, but it could be years before some establishments have to follow the revamped measure — if at all.

After a lengthy debate on Wednesday, the Board of Aldermen’s Health Committee endorsed sending the plan, with amendments, to the full board, which could hear it later this month.

The bill sponsored by Central West End Alderman Lyda Krewson would be activated only if St. Louis County approves a ban of its own. That means, in effect, county voters could decide the issue for the city as well when they cast their ballot on a smoking ban proposal next month.

First, Krewson’s bill would have to pass the whole Board of Aldermen, which is far from a certain.

An amendment added Wednesday, however, could make it more palatable to those worried about hurting local businesses in down economy.

The provision would give small bars — defined as drinking establishments 1,500 square feet or less — five years to comply. In the meantime, those exempt taverns would have to post a sign, “WARNING: SMOKING ALLOWED HERE.”

Like the county version, the city smoking ban would exempt casino floors and certain hotel rooms.

The bill passed the committee unanimously, but not after Krewson was peppered with questions at a three-hour meeting Wednesday, the final of five hearings on the bill.

“More than any other bill in the 12 years that I have been an alderman,” Krewson said.