2013 H Street, NW / Washington,
DC 20006 / (202) 659-4310
III. PASSAGE OF THEN ORDINANCE
Before commencing work on the promotion of State legislation (usually called an "Act" or "Statute") or local legislation (usually called an "Ordinance") concerned nonsmokers should attempt to contact their nearest nonsmokers' rights organization (of which there are over 100 around the country) to ascertain whether there is any existing Clean Indoor Air legislation and whether such organization has any plans for the enforcement and/or extension of such legislation.
The advantages of working with an existing organization include avoidance of duplication of efforts and also the "strength in numbers" advantage. A list of such organizations may be obtained, on request, from ASH or the State branch of the American Lung Association, usually will have knowledge of any local nonsmokers' rights group.
If there is no nonsmokers' group in a State or locality, concerned nonsmokers may organize their own action committee by enrolling the support of family, friends, business contacts, neighbors, members of P.T.As., sporting and professional clubs, taxpayer associations, etc. There is, of course, no objection to action by a single nonsmoker but a strong association of concerned citizens will obviously carry more weight.
The degree of organization required for the association will depend upon a variety of circumstances, including the number of persons involved. Even if a few friends or neighbors are planning action, however, they will facilitate progress by naming their organization, e.g. "The Freshville Clean Indoor Air Association" and by choosing a Chairperson (Dr. Healthy, a physician), a Vice-Chairperson (Ms. Wealthy, owner of a local supermarket), a Secretary (Ms. Wise, a high school teacher), and a Treasurer (Mr. Thrifty, a bank officer). The Freshville Association is now ready to start the campaign.
Before the campaign proper can begin, the Freshville Association must make a number of important preliminary determinations:
A. Whether activities should be directed to promote State or local legislation.
Statewide Clean Indoor Air legislation would obviously seem very desirable but in most cases a group might be well-advised to direct its efforts to promote a local ordinance. The reason is that the tobacco industry now works extensively at the State level to block or limit Clean Indoor Air Acts. As regards local ordinances, however, not even the vast resources of the industry can spread to every county and town, and local efforts have met with considerable success throughout the country. The Freshville Association therefore prudently decided to restrict its efforts to Freshville and to press for the passage of a "Freshville Clean Indoor Air Ordinance".
B. Whether the legislation should be wide or directed to specific problems or institutions.
Acts or ordinances may be extremely comprehensive, such as the Minnesota Clean Indoor Air Act covering virtually all public places including workplaces, or it may be limited to a single area, such as the San Francisco Ordinance relating only to workplaces.
The matter of selection is very much a question of local priorities and preferences. Many general Clean Indoor Air Ordinances apply to elevators, public meetings and buildings, schools and colleges, theaters, health care facilities, and public transportation and, in increasing numbers, public and private workplaces.
The Freshville Association had a number of discussions as to what the Ordinance should cover, each officer, with friends and supporters, naturally urging protection for their own activities, Dr. Health for hospitals, and nursing homes, Ms. Wealth for retail stores, Ms. Wise for schools and colleges, and Mr. Thrifty for banks. Heated discussion arose, however, upon whether to include restaurants, and they wisely decided against inclusion.
Restaurant smoking limitations frequently attract the opposition of the tobacco industry and its allies, and inclusion of a restaurant provision can result in the defeat of a general ordinance. Once the general ordinance has been successfully passed, smoking limitation in restaurants can be made the subject of a separate ordinance, as has been done by the City of Newton, Massachusetts, and others.
A. Drafting the Ordinance
Once it has been decided what the Ordinance should cover, drafting can begin. As a starting point, ASH can provide a Model Act (based on the comprehensive Minnesota Clean Indoor Air Act) which can be adapted for the requirements of a local Ordinance. Such a Model must, however, be considered in the light of the general law of the individual State.
The Freshville Association had sent for the ASH Model, and Ms. Wise had done some public library research and came up with copies of the Clean Indoor Air laws of various states and localities. The Association was, however, in a condition of some confusion. Ms. Wealthy and Mr. Thrifty were arguing about the merits of the Los Angeles and Austin Ordinances, Ms. Wise was puzzled about the difference in meaning, if any, between an "exception" and a "proviso", while Dr. Healthy was aware that Freshville enjoyed a special "home rule" status under the State's Constitution, but whether this would help them or hinder them, he could not decide.
At this juncture, the Association was delighted to welcome two new members, Mr. Brief, an attorney (a cousin of Ms. Wise) and his wife, Ms. Brief, a cub reporter on the Freshville Gazette. Mr. Brief quickly sorted out the suggestions and soon produced a working draft. He even suggested that the Ordinance should apply to the localities in which a famous local sport -- horse shoes --was played, so that smoking and nonsmoking pits should be provided and separate. Since Freshville is the horse shoe-tossing capital of America, this inclusion was joyfully received. Mr. Brief also advised that the Association should be incorporated as a lobbying corporation, and undertook the procedures to effect this arrangement.
In cases of associations which are not so fortunate as to have a Mr. Brief among their members, employment of an attorney at the drafting and amending stages of the passage of an Ordinance is highly to be recommended. A well-drafted Ordinance is less vulnerable to challenge, and it is also important to have a qualified lawyer at hand to advise on the legal effect of any proposed (and possibly hostile) amendments.
Attorneys may be recommended by friends or business contacts of an Association, or be sought among members of the local Bar who practice in public health or environmental fields. Such an attorney's fee, to draft and advise, would be money well spent.
B. Introducing the Ordinance
The ways in which local ordinances have been successfully introduced, are almost as numerous as the number of ordinances passed. Methods will, of course, be governed by the procedures prescribed by each State or local authority, and the following are only three of the more effective possibilities:
1. The Association may present its draft Ordinance to the appropriate government department -- probably the department concerned with health or environment -- accompanied by a formal or informal request that the department consider it.
If the department agrees to sponsor the Ordinance as a "government bill" the promotion may be expedited and legal aspects of the process will be supervised by departmental and other government legal officers.
Irrespective of whether the concerned government department agrees to sponsor the legislation or not, valuable information as to its probable position on the Ordinance will have been obtained, weaknesses may have been exposed, and suggestions received which may be incorporated into the Draft.
2. The Association may bring the Draft to the attention of a local legislator or legislators with the request that they sponsor the Bill in the local legislature.
If one of the Association's members is a legislator, he or she may, of course, sponsor the Ordinance. Otherwise, success may depend upon obtaining sound information as to the character, views, and voting record of the prospective sponsor.
Background research may therefore be required into (a) a legislator's voting record in the past; has he or she voted in support of measures to protect health and the environment including the workplace, to combat the drug menace, and to protect minors? (b) the legislator's family and business interests; does he or she have any links to the tobacco industry or to its allies either as a shareholder, employee, or recipient of tobacco industry donations? (c) the legislator's attitude towards use of tobacco; is he or she a user of tobacco or does the legislator's business support or profit from tobacco advertising, e.g., as owner of a local newspaper or magazine? (d) the legislator's standing within the legislature; is he or she an officer or member of a committee on health, environment or labor which would give his or her sponsorship special clout?
When this screening process has been completed, the Association may submit its Draft Ordinance to the legislator(s) of its choice with a request for a meeting and discussion before the question of sponsorship is settled.
At such a meeting, the Association's officers may present the main arguments for the Ordinance, which may be made in greater detail in any later public hearing. It may also be stressed (particularly if the legislator is seeking re-election) that, since over 70% of the electorate are nonsmokers, support of the Ordinance would clearly have favorable political ramifications for its sponsor.
3. The Ordinance might also be made the subject of a public petition to the legislature, signed by friends and neighbors, and presented to the lawmaking body in accordance with the procedures prescribed in that locality.
Launching an Ordinance in such a way is, however, somewhat haphazard and reduces chances of success since it disregards the many elements in the situation which have been mentioned earlier.
Moreover, the passage of any piece of legislation requires much "tender, loving care" and a constant attention to detail and supervision. Indeed, one legislator was known to remark that bringing a law to passage was like "carrying a child, of whom one had become rather fond, through a dark passage lined by assassins armed with long knives".
The Freshville Association soon decided that it wished to enlist the help of a legislator named Mr. Goodlaw. Mr. Goodlaw, who was an officer of the Legislature's Ways and Means Committee, had met Mr. Thrifty at Banking Conventions. Mr. Goodlaw was also a member of the Legislature's Health and Education Committees and had two teenage children, both of whom were American Eagle Scouts.
Mr. Thrifty made an introductory call to Mr. Goodlaw's office, and forwarded to him copies of the proposed Ordinance. Shortly afterwards most of the Officers and members of the Association met at Mr. Goodlaw's office and Mr. Goodlaw agreed to introduce the Ordinance.
Better yet, Mr. Goodlaw suggested other members of the Health and Education Committees whom he thought could be persuaded to become co-sponsors of the Ordinance. Once he had obtained the consent of these other legislators to co-sponsor the Ordinance, he suggested that officers and members of the Association should send them copies of the proposed Ordinance and background materials. Following the introduction and the First Reading of the Ordinance, matters had to be governed by the legislative procedures prescribed by state and local law, but this did not mean that the Association remained idle.
By way of generating public interest and support, Ms. Brief submitted a topical article on the introduction of the Ordinance to her newspaper, the Freshville Gazette, Ms. Wise wrote and mimeographed a simple flier for local distribution, and all members were on call to provide Mr. Goodlaw and his colleagues with any information they might require as to the possible volume of support, lists of businesses which were enthusiastic (or not, as the case might be), and examples of persons or businesses which had suffered damage as a result of environmental tobacco smoke. Most importantly, the Association was busily preparing for a public hearing, which was the next hurdle in the process of passing the Ordinance.
C. The Public Hearing on the Ordinance
A public hearing is prescribed as part of the legislative process by many state and local authorities, and its importance can hardly be exaggerated. Such a hearing not only serves to provide a body of evidence upon which a legislature may act. It also informs the general public as to the issues at stake, polarizes public opinion for or against a measure, and provides a record of evidence which may prove invaluable in future proceedings on the same or similar topics.
The Freshville Ordinance had been assigned to the Public Health Committee of the legislature, the Freshville City Council, and a public hearing before that Committee was fixed for six weeks ahead. The Freshville Association was soon busily compiling a list of witnesses and all the officers felt that they had something to contribute.
Dr. Healthy, as a general practitioner in Freshville felt that he had a lot of say about the patients he saw who had been exposed to tobacco smoke when working in the Freshville Textile Mill, where tobacco particles and cotton lint form a devastating combination to cause Brown Lung Disease. He felt, however, that it would be helpful to have the additional support of experts who could give evidence as to the damage done by ambient tobacco smoke, but could not decide whom to ask.
Dr. Healthy had trained under the world famous Dr. Magnus at Gotham Hospital, but he doubted whether Dr. Magnus could spare the time to come to Freshville, and whether the Health Committee would appreciate the honor if he did. He eventually contacted two sound pulmonary consultants with whom he had been at medical school, one of whom was Head of the Department of Pulmonary Medicine at the State Hospital, while the other (a former Freshville resident) had a flourishing practice in the nearby county seat. These experts were known, personally or by name, to most of the Health Committee and their evidence was received with intense and respectful interest.
Ms. Wealthy was eager to give evidence as to the benefit to retailers of smoking limitation policies. As President of the Freshville Retailers Society, she was able to speak with authority, especially since she had, for several years past, banned smoking in her supermarket. She was able to show, from trading and customer figures, that the amount of her business had grown 40% because nonsmokers (over 70% of the population) preferred to shop at her store where they would not encounter tobacco smoke. Ms. Wealthy's Accountant also appeared as a witness to give evidence as to the reduction in her expenses, since her stores became smoke-free, for cleaning, janitorial, and insurance services.
Ms. Wise spoke of the need to ban cigarette smoking on school and college campuses in view of the importance of protecting minors from the risk of casual smoking and consequent addiction. She was supported by the evidence of the Director of the local Drug Rehabilitation Clinic who gave evidence to the effect that children and young people exposed to tobacco use would be tempted to experiment with it, the "gateway drug" to heroin and cocaine, and believed by many (including U.S. Surgeon General Koop) to be more addictive than either.
Mr. Thrifty, as Chairman of the local Taxpayers' Union, pressed for smoking limitation policies in police stations and firehouses, to protect the pulmonary health of officers, performance of whose functions depended upon their being very healthy. Mr. Thrifty was able to give several instances of officers who were nonsmokers who had developed emphysema or lung cancer because of exposure to tobacco smoke at work. They had had to retire on disability pension at heavy cost to taxpayers.
The Association witnesses were followed by witnesses from the local branches of the main national health organizations, the American Lung Association, the American Heart Association and the American Cancer Society, all of whom gave evidence in support of a wide Ordinance.
Only two adverse witnesses were listed and heard. Mr. Plugg representing the Tobacco Industry, and Mr. Wheeze, who owned a local tobacco and candy store, both of whose interests were self-evident.
Mr. Plugg sought to appeal to the citizens of Freshville as guardians of traditional American values. Tobacco, he said, was good for America, and like the Flag, Mom and Apple Pie, should not be criticized. Unfortunately for him, in his study of local conditions he had failed to realize that Freshville numbered among its citizens many members of a powerful evangelical denomination "The Church of the Sturdy Brotherhood" who were nauseated by even a whiff of tobacco smoke as a reminder of the Fires of Hell. Several members of the Committee were members of the Brotherhood, and, in due course, voted accordingly.
Each of the listed witnesses (who had given notice to the Committee of intention to speak) were given 10 minutes and this entailed a carefully-timed presentation with a written text in each case, which could be handed to the Committee before or after the testimony was delivered. The Association provided a copy of each person's testimony for each Committee member.
After the listed witnesses were heard and questioned by the Committee, members of the public were invited to testify. Although they were allowed only 5 minutes each, this proved to be one of the most impressive (and harrowing) parts of the hearing. Person after person came forward with histories of ill-health, suffering and expense, for them or their loved ones, as a result of exposure to tobacco smoke in the workplace and elsewhere.
At the conclusion of the hearing the Committee retired to consider the large body of evidence submitted and the Association and its supporters felt some satisfaction in the case which they had presented in favor of an Ordinance.
III. THE PASSAGE OF THE ORDINANCE
The Health Committee took a whole month to evaluate the evidence presented to it at the public hearing and then made a unanimous recommendation that the Ordinance should be submitted for a vote by the full Council.
A few amendments were suggested which Mr. Goodlaw discussed both with his Health Committee and the Association. It was agreed, for example, that an extra six months should be allowed to public and private employers to allow them to put workplace smoking policies into effect. As regards enforcement, it was also decided that special financial provision would have to be made out of the budget of the Health Department to pay for the one inspector who would supervise enforcement.
Meanwhile, Mr. Goodlaw had recruited allies among colleagues on the Ways and Means Committee, and the Environment Committee, and others to support the Ordinance when it came to the council vote. Mr. Goodlaw's political skills were more than equal to the task and the Ordinance passed by a wide majority, the only opposition coming from Mr. Wheeze's business partner and a few die-hard smokers.
A month later the Mayor of Freshville signed the Freshville Clean Indoor Air Ordinance into law and gave his pen to the Association as a trophy of its glorious and successful campaign.
It would be pleasant to be able to report that the Freshville Ordinance met with universal approval and that the Freshville Association were left with no task other than to enjoy the plaudits of fellow citizens, but there were further battles to be fought. In Freshville itself the Ordinance quickly met with general approval and acceptance. Policies were implemented, health and working morale improved greatly, and the inspector had so few complaints to investigate that he could take time off to fish in the Freshlet River.
After the defeat in Freshville, however, Mr. Plugg had returned to his Masters (the Tobacco Industry) and stated that, because of the effect of the Freshville and other Ordinances, the Industry should lose no time in promoting a State law to invalidate all local smoking limitation ordinances - including that of Freshville.
The Freshville Association promptly responded to the challenge and it now had definite advantages in entering statewide politics. First, it was no longer a fledgling Association. Its members were experienced campaigners who understood the issues and knew how to present the evidence in their favor, and negotiate and bargain for support. Second, it had now gained a statewide reputation as a cracker-jack Association, and other antismoking groups and health associations sought out the members for their advice on evidence and strategy.
To make a long story short, the Association used all the skills and evidence acquired in the local arena, and joined forces with all the allies attracted by its success, to persuade sympathetic State Legislators to take up its cause (as Mr. Goodlaw had done on the local level) to ensure the defeat of the Tobacco Bill by a handsome majority.
Although gratified by the success of its cause, the heroic Freshville Association and its allies continue to monitor the activities of the Tobacco Industry upon a national and local level in order to be prepared for any other "knavish tricks" which the Industry may attempt to foist upon the American public.
The Association now realizes that the price of freedom from Tobacco Industry manipulation is, like the price of Liberty itself, eternal vigilance!
Postscript on Local Indoor Air Legislation
An interesting survey on the progress of local Clean Indoor Air legislation is contained in the 1989 U.S. Surgeon General's Report "Reducing the Health Consequences of Smoking: 25 Years of Progress" - pages 565-567. By October, 1988, 380 local ordinances had been passed with provisions for nonsmoker protection, a fourfold increase in the estimate of 89 communities in 1986.
As of April 1988, 125 California communities had significant nonsmoker protection laws, followed by Massachusetts with 56. Communities in more than 20 other States restrict smoking including 6 of the 8 States without statewide restrictions. Two of the major tobacco-producing States, Virginia and South Carolina, each have several counties that restrict smoking. In Virginia, which has no statewide restrictions, Arlington, Fairfax, and Prince William Counties, as well as the city of Norfolk, restrict smoking in restaurants and other public places. In South Carolina, which has statewide limits only for school buses, smoking is restricted in government buildings in five counties. In 1987, the city of Greenville became the first in South Carolina to restrict smoking in private worksites and restaurants (Tobacco Free America Project 1987).
Other States with several communities regulating smoking in public places or worksites are Texas, Colorado, Maryland, Ohio, Arizona, and New York. Among the major cities not already cited that restrict smoking in private worksites and various public places are New York, NY; Cleveland, OH; Denver, CO; Kansas City, MO; Phoenix and Tucson, AZ; Pittsburgh, PA; Austin, Dallas, El Paso, and Houston, TX; and Seattle, WA (ANR 1988b).
The city Ordinance affecting the largest number of people is the Clean Indoor Air Act that took effect in New York City on April 6, 1988. It applies to over 7 million people, almost 3 percent of the United States population, and bans or restricts smoking in a wide variety of public places.
NOTE: This leaflet, distributed as a public service, contains general information which may be helpful in most States or localities. For authoritative information on your State or local laws, an attorney practicing in the jurisdiction should be consulted.
2013 H Street, NW / Washington,
DC 20006 / (202) 659-4310