High court extinguishes county smoking ban
ADAM LYNN; The News Tribune
February 11th, 2005
Charles Kruger lit a Marlboro as he reflected on Thursday's Washington State Supreme Court decision to strike down Pierce County's smoking ban.
Kruger, a smoker for 30 years, thinks his right to indulge his habit at places like the Pegasus Restaurant & Lounge near the Tacoma Dome is not long for the world, no matter what the Supreme Court decided.
"This is a short reprieve," the Tacoma carpenter said as he waited for an order of eggs over-medium. "There's going to be a ban eventually. It's a sign of the times."
Indeed, as business owners who fought the Pierce County regulation celebrated the high court's decision - which overturns a ban that's been on and off over the past year - anti-smoking activists made preparations to take their fight statewide.
Supporters of Initiative 901 rallied in Tacoma on Thursday evening to build momentum for their proposal, which would do across Washington what the Tacoma-Pierce County Board of Health failed to do locally: ban smoking in bars, taverns, minicasinos, bowling alleys and restaurants.
Anti-smoking activists had hoped to use Pierce County's successful defense of its ban to build consensus for statewide smoking prohibitions.
"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.
Initiative 901 supporters, who will begin collecting signatures this weekend, hope to have their proposal before voters in November.
Another, less restrictive law regulating smoking in public places also is before the state Legislature now. That measure, supported by the Washington Restaurant Association, would require businesses frequented by children - like restaurants - to build fully enclosed and separately ventilated "smoking rooms" where adults could light up.
"Patchwork smoking bans are not the answer," association president and chief executive officer Gene Vosberg said in a news release. "Only a statewide ban where minors are allowed will resolve this issue once and for all."
Gov. Christine Gregoire said earlier this week that she favors a comprehensive ban, but would support an incremental step toward restricting smoking in public.
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."
Pushing is the problem, according to several smokers who stopped by the Pegasus on Thursday.
Steve Rosellini and Harold Breshon meet at the Puyallup Avenue lounge and restaurant nearly every day for lunch. They eat, play a bar-top video game called "Box Glide" and smoke. They were at it Thursday as news of the court's decision played across a television mounted on the lounge's wall.
"I don't believe these people should be able to tell a private person how to run his business," said Breshon, who owns a Tacoma machine shop.
Gig Harbor resident Rosellini said the government should not be eliminating people's options.
Chester Robbins, a former farmworker who was also at the Pegasus, agreed.
"It should be up to the individual," said Robbins, 69, who has been smoking since he was 8. "If you don't like smoking, don't go to a restaurant where there's smoking."
Cruz-Uribe said the Supreme Court decision means the health district will refund the nearly $4,000 in fines it collected from defiant business owners who allowed smoking in their establishments while the ban was in effect last year.
Still, he and health board chairman Kevin Phelps took some solace in fighting for what they believe is right.
Some restaurants in Pierce County permanently banned smoking as a result of the ban, Cruz-Uribe said, and the debate has raised public consciousness about the hazards of smoking.
"We raised this issue in front of the public in a way it's never been raised before in this state," Phelps said.
Rosellini, puffing at the Pegasus, said he doesn't expect them to give up now.
"This will go on forever," he said. "These people aren't going to give up until they get what they want."
TIMELINE
Here are the important dates in the Tacoma-Pierce County Health Board's attempt to ban indoor smoking in public places:
• Dec. 3, 2003: The Tacoma-Pierce County Board of Health votes to ban indoor smoking in public places.
• Jan. 2, 2004: The ban takes effect.
• Jan. 8: A Superior Court commissioner refuses a request by entertainment businesses to suspend the ban, saying there wasn't enough proof that they were losing money because of the week-old prohibition.
• Jan. 22: Superior Court Judge Ronald Culpepper overturns the three-week-old ban, ruling it conflicts with state law that allows smoking areas. Smokers light up again. The health department appeals.
• Feb. 25: The ban is reinstated after state Court of Appeals Commissioner Ernetta Skerlec grants an emergency stay of Culpepper's ruling, saying the potential health risks outweighed the business community's potential financial losses.
• May 24: A Lakewood ordinance takes effect that seeks to nullify the countywide ban by "adopting" the state law. Around this time, Ruston and Fife also pass measures intended to show opposition to the ban, and Sumner temporarily lowers gambling taxes to help offset losses. Entertainment businesses hold a series of smoking events during the last week of May.
• June 3: Smokers light up again after a three-judge Court of Appeals panel issues a 2-1 decision overturning Skerlec's stay, meaning the ban is suspended pending the appeal.
• Nov. 16: The Washington State Supreme Court hears arguments in the health department's appeal.
02/10/2005
OLYMPIA - 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. The state''s less restrictive Clean Indoor Air Act prohibits smoking in most public places, but exempts restaurants, bars, bowling alleys and casinos.
"The (health board''s) 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," Justice Charles Johnson wrote in the unanimous opinion.
"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.
Two bills in the Legislature this year would expand the state''s clean air act. One would ban smoking anywhere minors are allowed, including restaurants but excluding bars; the other would mimic the Pierce County ban and prohibit smoking in all indoor public places statewide. Gov. Christine Gregoire said this week she will sign either one, though the less-restrictive ban stands a better chance of passing.
The Supreme Court case is Entertainment Industry Coalition v. Tacoma-Pierce Co. Bd. of Health, No. 75675-9.
http://www.freerepublic.com/focus/f-news/1340724/posts
Read the court papers.
