Kaine's Restaurant Plan Called Too Broad
Critics Say Amendment Fails to Make Exceptions for Caterers, Food Carts

By Tim Craig
Washington Post Staff Writer
Friday, March 30, 2007

RICHMOND Gov. Timothy M. Kaine's proposal to ban smoking in Virginia restaurants would cover virtually any place where food is served, including street festivals, catered weddings, county fairs and hotel rooms, opponents charged Thursday.

Stepping up their efforts to derail Kaine's plan, opponents said the ban proposal was so broad that even a groom would be unable to smoke a cigar at his wedding reception because the measure fails to make exceptions for catering services. Even pushcarts and hot dog stands would fall within the proposal's reach.

"If the amendment is adopted, the effect would be to make it illegal to smoke anywhere where food is served outside of your residence," said House Majority Leader H. Morgan Griffith.

After reviewing the measure with a half-dozen lawyers, Griffith (R-Salem) said he will ask the Republican-controlled House to reject the ban proposal when the lawmakers vote on it Wednesday because "it is not logical."

Kaine and supporters of his measure say Griffith and the lawyers are wrong. They counter that the House leader and the entertainment and tobacco industry are resorting to scare tactics to defeat a measure that polls show is popular with voters.

"They are just reaching for anything they can hang on to have people vote against it as opposed to standing up and addressing the issue: banning secondhand smoke in restaurants," said Sen. J. Brandon Bell II (R-Roanoke).

The General Assembly approved a bill last month sponsored by Griffith requiring eating establishments to post signs at the front door if they allow smoking. Last week, Kaine amended the bill to include the ban. Lawmakers return for one day Wednesday to consider Kaine's actions on the smoking legislation and other bills. Because the Senate is on record supporting a restaurant ban, much of the focus is on the delegates.

A court could ultimately decide what type of eating establishments would be covered by the ban.

Under Virginia law, there are two types of restaurants. The first is "any place where food is prepared for service to the public on or off the premises, or any place where food is served." The second type is "any place or operation which prepares food for distribution . . . (including) food for catering services, push cart operations, hot dog stands and other mobile points of service . . . unless the point of service and of consumption is in a private residence."

The lawyers advising Griffith say the governor's proposal appears to cover both parts of the state code that defines a restaurant. Griffith said the governor should have specified that the ban he proposed applies only to the first definition for a restaurant. By failing to do so, Griffith argues, smoking would be banned near any food cart or food or beverage supplied by a delivery or catering service that was consumed outside of a private home.

"I think the governor meant for the ban to apply for more traditional indoor restaurants, but we now have the amendments in front of us, so whatever he meant is not the issue," Griffith said. "What we have in front of us is some areas are now clearly going to be smoke-free that most people don't think are restaurants, and there are going to be a lot of legal question marks."

Thomas A. Lisk, legal counsel for the Virginia Hospitality and Travel Association, said Virginia would have one of the most far-reaching smoking bans in the nation if the General Assembly adopted Kaine's proposal.

"It would no longer apply solely to restaurants, but far beyond that, to stadiums, outdoor amphitheatres, racetracks and private clubs," Lisk said. "They will be under the same definition as a restaurant."

Kevin Hall, a spokesman for Kaine, said the opponents are being absurd.

"We need to be reasonable here," Hall said. "We are talking about banning smoking in restaurants, not near restaurants. Unless you climb into a hot dog cart, I think you are going to be OK. . . . No reasonable person is going to argue a patch of sidewalk five feet from a sandwich stand is a restaurant."

Bell, the sponsor of indoor-smoking legislation in the Senate, said the restaurant definition for delivery services deals with where the food is prepared, not where it is served.

Chris Kowalczuk, a Roanoke lawyer who consulted with Griffith, disagrees. "It's pretty clear, point of service, the point of delivery and consumption," Kowalczuk said.

Regardless of the potential legal fight, health advocates are accelerating their campaign to persuade the General Assembly to approve Kaine's amendment. On Thursday, the American Cancer Society, the American Heart Association, the American Lung Association of Virginia and the Campaign for Tobacco-Free Kids unveiled a radio ad to rally support for the ban proposal.

"Virginia leaders have a chance to do what is right and take a stand to protect the health of our workers' families," the ad states. "Ask your state legislators to support Governor Kaine's amendment. . . . It is time to protect our right to breathe clean, smoke-free air."

Cathleen Smith Grzesiek, director of public advocacy for the American Heart Association, said the issue could feature prominently in this fall's elections, when all 140 legislative seats are up for election.

"It is going to be really close, but I think come [Wednesday] the legislators are going to do the right thing and protect public health in Virginia," Grzesiek said. "This is an issue that is important for Virginia voters."