February 4, 2003

Where there's smoke, there's fire. But anyone even casually aware of what is happening in Dover knows there can be a good bit of fire where there isn't any smoke anymore. A piece of legislation enacted by the General Assembly last year, which took effect at the end of November, has raised a veritable firestorm.

The Clean Indoor Air Act, which now occupies Chapter 29 in Title 16 of the Delaware Code, bans smoking tobacco in just about every enclosed space accessible to the public. The only notable exceptions are fund-raising events sponsored by volunteer fire companies.

Although both chambers passed the measure by large margins -- 18-3 in the Senate and 30-5, with two abstentions and two absent, in the House of Representatives -- opposing lawmakers have regrouped and the issue is being refought over proposed legislation that would create additional exemptions. House Bill 15 adds tap rooms, slot machine parlors and gambling events, such as bingo games, sponsored by nonprofit organizations and open only to adults to the list.

After a contentious two-and-a-half-hour hearing, the House's Natural Resources and Environmental Management Committee cleared the bill for consideration and a vote by the full House. Four members of the 10-member committee -- chairman Robert Quillen, Pam Thornburg, John Atkins and Gerald Hocker -- voted to recommend passage; four -- Bethany Hall-Long, Michael Mulrooney, Joseph Booth and George Carey --  favored 'on merits' consideration, which means they want to leave it up to House colleagues to decide for themselves; and two -- Wally Caulk and Hazel Plant -- are down as not having participated in the committee vote although they did attend the hearing. No one voted to recommend rejection of the bill.

That may be somewhat academic because there is a possibility that a substitute bill will be introduced when the Assembly returns in mid-March from its annual budget-bill recess. Thornburg and Quillen, who are the principal co-sponsors of House Bill 15, are meeting, beginning this week, out of public view with Deborah Hudson and Robert Valihura, its chief opponents, in a stated attempt to forge compromise legislation.

Valihura told Delaforum that he and Hudson have agreed to "work in good faith toward a compromise," but indicated that being able to reach one is questionable. The law now on the books, he said, was, in itself, a compromise that took two years to craft.

Since then, "a very small vocal minority have been screaming in my colleagues" ears seeking changes, he said.

If the four lawmakers are unable to come to an agreement, House Bill 15 will likely go before the full House for debate and a vote in the form of what politicians refer to as a 'Christmas tree', laden with proposed amendments. So far there are 21 of them, most of which are sponsored by Hudson and Valihura and two of which have proposed amendments attached to them.

Wayne Smith, leader of the House's Republican majority, told Delaforum that it is anybody's guess whether the behind-the-scenes consultations will be productive. He said the fact that the chamber's membership is closely divided over whether the basic law needs a bit of reworking "gives impetus to compromise." On the other hand, strong emotions on both sides of the issues speaks against reaching one.

Either way, he added, such knotty issues have a way of being worked out in Delaware. "The legislature has risen to the occasion before and I would expect it to do so again," he said. Observers are hard put to identify an issue which evoked so much strong feeling in many years.

The House of Representatives, of course, does not have final say over what happens. Any bill it enacts much also be passed by the Democrat-controlled state Senate. Senator David McBride, the Clean Indoor Air Act's principal Senate sponsor, declared flatly that he is "not willing to consider any weakening of our law." He vowed "a ferocious fight against any [such] attempt."

Beyond the Assembly, there is Governor Ruth Ann Minner, a strong proponent of the smoking ban. She used her 'State of the State' message to declare that passage of the law showed that “Delaware is one of the first states to care so deeply for its citizens" and added that she wants "to keep it that way.” Ignoring the obvious contradiction, she said in her budget speech to the Assembly a week later that increasing the tax on cigarettes from 24˘ to 50˘ a pack would both help ease the state's fiscal crisis and induce more people to quit smoking.

Secretary of Health & Social Services Vincent Meconi, the only ranking member of the Minner administration to testify at the hearing, also opposed modifying the smoking ban on the grounds that it put Delaware in the position of having set an example for the rest of the nation. While similar measures are in effect or being considered  in many jurisdictions, Delaware's is the most comprehensive one which applies statewide.

The governor's opposition leads naturally to speculation that she would veto any legislation that would compromise the achievement of significantly banishing cancer- and respiratory ailment-causing 'second-hand smoke'. It would take the concurrence of 25 representatives and 13 senators -- three-fifths majorities of those elected -- to override a veto.

Gregory Patterson, the governor's press spokesman did not respond directly to a Delaforum inquiry about whether she would exercise her veto, but did point out that she "has said repeatedly that she does not want to see any changes to the Clean Indoor Air Act this year."

Patterson did point out that some of the proposed Valihura-Hudson amendments would strengthen the existing law and added that, if those changes were enacted, she would "consider [them] favorably."

Smith said that political reality mitigates against a gubernatorial veto if the Assembly does manage to craft a broadly supported compromise.

Valihura said that a veto is a probable final step, but it is clear that the governor "doesn't want any bill to reach her desk." He said that sentiment is shared by "75% of the public [which] likes what we have done."

"No one wants to go back to the way things were [before the ban], except maybe the hard-core smokers," he said. "We can't go back now to the way it was."

Smith said his reading of public sentiment shows the law in its present form has strong support in Brandywine Hundred and most of the rest of New Castle County. "That falls off as you go south" into Kent and Sussex, he said.

That was apparent at the hearing on Jan. 29, which was attended by 350 participants and observers.

Xavier Teixido, who owns Harry's Savoy Grill in Brandywine Hundred and also is the current president of the National Restaurant Association, said that restaurateurs generally do not object to a smoking ban so long as "there is a level playing field." He opposed allowing smoking in tap rooms but forbidding it in restaurants.

Delaware law defines a restaurant as an establishment whose primary business is selling food but which also sell alcoholic beverages. A tap room -- which also is known as a tavern or in times gone by a saloon -- is there primarily to sell beer, wine and liquor with food being an incidental part of its business. There is widespread agreement, however, that the distinction is a blurry one.

Frank LaPantz, who owns a bar in Smyrna, testified that a majority of people who patronize drinking and entertainment establishments are smokers and that denying them the "right to choose to smoke" violated basic freedoms. He also said that he was fined for allowing smoking when an investigator saw a patron "sneaking one." The investigator did not make his presence known at the time of the incident nor was he identified on the notice of the fine, LaPantz claimed.

Other speakers who said they are in the business spoke of severe dropoffs in patronage, deep financial loses since the ban went into effect and the necessity to lay off employees.

One proposal which received repeated references was that establishments be permitted to present themselves as allowing smoking or not allowing it and thereby let the market determine whether appealing to smokers or nonsmokers is the more profitable course. One vocal proponent of that approach was Mike Carney, one of the partners in Bull's Eye Saloon & Restaurant which has places in Christiana Hundred .and Middletown, and brother of Lieutenant Governor John Carney.

John Frelick, a retired oncologist, urged legislators not to tamper with the present law. "I'm speaking for myself and hundreds of people who couldn't be here today because they have died from smoking," he said.

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