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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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