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Critics Say Smoking Bill Is Weak Ban
Exemptions, Size Of Fines Faulted

By Fredrick Kunkle and Tim Craig
Washington Post Staff Writers
Monday, February 16, 2009

When Virginia Gov. Timothy M. Kaine (D) and Republican House Speaker William J. Howell announced that they had quietly brokered a compromise that would ban smoking in the state's bars and restaurants, anti-smoking advocates did not rejoice. They read the fine print.

And they didn't like what they found.

They said vague language in the ban allowed restaurants to create separate ventilated rooms for smokers but didn't define the standards for such a room. And they said the fine for ignoring the ban was tiny -- $25 for a violation. The advocates realized, said Cathleen S. Grzesiek, director of government relations for the American Heart Association, that they were very far from their goal of banning smoking in all public indoor spaces.

"This really isn't a victory for public health," Grzesiek said.

Tobacco industry lobbyists weren't happy, either. Glynn Loope, executive director of Cigar Rights of America, said that when the Internet lighted up with news of the ban, he was so mad he "almost threw the computer across the room."

For years, critics of Kaine and Howell (Stafford) have argued that the two showed a striking lack of interest in brokering legislative deals. Now, they have brought the General Assembly closer to passing a restaurant smoking ban in Virginia, a significant political and cultural shift for a state whose history has been intertwined with tobacco for centuries. The deal they struck is taking heavy fire from advocates on both sides.

As Kaine and Howell have pushed to win final approval of the ban, mistrust has pervaded the state Capitol.

Loope said he sees Kaine's efforts as the unbridled pursuit of a signature legislative victory. "It's as close to a legacy project as there is," he said.

Teresa Gregson, a lobbyist for health advocates, sees the hidden hand of big tobacco in the ban. "It would be naive for anyone in Virginia to believe that anything comes through the General Assembly without Philip Morris's blessing," she said.

The seeds of the compromise bill were planted in the fall, when Philip Morris lobbyists distributed the outlines of what they would support in any proposal to ban smoking in bars and restaurants in Virginia.

The company wanted a ban to apply only to establishments that catered to people younger than 18 and to exclude outdoor patio areas, cigar bars, private clubs and restaurants hosting private functions, such as wedding receptions. The company also proposed that smoking be allowed in bar areas and in rooms that were either ventilated or separated from the main dining area, according to legislators who have seen the Philip Morris memo.

About the same time, Loope said, the Kaine administration asked him if his clients would get behind a ban on smoking until 10 p.m. Loope said no.

Loope began shopping around ideas of acceptable smoking restrictions, borrowing on legislation enacted in other states. In Oregon, for example, workers in smoky environments can sign waivers indicating they have been warned of the risks but opted to ignore them. In New York, cigar bars thrive, an exception to the city's smoking ban, because patrons go there explicitly to buy and use tobacco products.

Loope said he shared some of his research with Del. David B. Albo (R-Fairfax). Albo spent November and early December crafting his own version of a bill that attempted to address the concerns of the tobacco industry and the anti-smoking advocates.

"We basically came up with what we thought was a fair compromise," Albo said.

Albo's draft would have exempted bars and restaurants that do not admit minors -- which would have included most nightclubs and small bars during the peak times alcohol is consumed -- as well as private clubs. Instead of agreeing to Philip Morris's suggested language on separate or ventilated smoking rooms, Albo said, he decided to push for rooms that were separate and ventilated.

Albo said he initially thought about introducing the proposal under his name when the General Assembly convened in January. "We wanted to advance a compromise, but we were afraid it would get all loaded up in the Senate," Albo said. "It had to be done in a way where we were not going to be stabbed in the back for being willing to compromise."

So, he said, he handed his draft bill to Howell. Howell said he was increasingly worried about defusing the public perception that House Republicans were too inflexible to compromise with Kaine on big issues. GOP delegates said Howell was also worried about the upcoming November elections, when all 100 House seats are on the ballot, including several in moderate suburban districts where a smoking ban might play well. Howell denied that politics played a role in his decision to sit down with Kaine. But, in talks with Republican members, Howell stressed that the American Cancer Society and American Lung Association had dispatched a paid organizer to his district.

About the start of the General Assembly session, Howell quietly approached Kaine and indicated that he was ready to try to strike a deal on a ban, GOP legislators said.

Kaine agreed without informing his longtime allies in the anti-smoking community.

A large group of health advocates had already met with the governor's staff about their goals for the year: a tobacco tax, a plan to broaden the use of tobacco-settlement money to combat child obesity and a smoking ban.

Grzesiek said the governor's office had asked the smoke-free coalition if they would prefer a higher cigarette tax or the smoking ban. She said they wanted the tax.

For weeks, the governor kept them in the dark on his plans. "It was a secret thing," Grzesiek said. "We were never brought to the table to say what we would compromise on and what we wouldn't."

Then the bill came out, and health advocates were unnerved to find elements that seemed to have been written by tobacco companies.

Anti-smoking lobbyists began urging lawmakers to toughen the bill, telling them that key provisions mirrored language that tobacco companies have used for years to turn the momentum of change to their own advantage. One 35-page internal tobacco company document states, "On a case-by-case basis, develop alternative legislative proposals to assure the best possible legislative outcome when some form of smoking restriction is inevitable."

The document suggests that lobbyists push for legislation to "decrease penalties for smoking restriction law violations" and "promote improved ventilation as the best solution."

But Del. S. Chris Jones (R-Suffolk), chairman of the House General Laws Committee, who sat in on Howell's negotiations with Kaine, said the company had a hands-off approach with him.

"I have not been directly lobbied by Philip Morris on any of the smoking bills," Jones said.

Del. Terry G. Kilgore (R-Scott) took up the cause of the company. When the bill came to the House floor, Kilgore successfully pushed to attach many of the same amendments that had been floated by the company last fall, including the provision to exclude bars that allow minors.

"People at Philip Morris were upset," said Kilgore, whose job was made easier because some GOP delegates felt that Howell had misled them into thinking Philip Morris supported the compromise when it did not.

Last week, Kaine and Howell met privately with legislative leaders to restore most of the language of their original deal.

In an interview, Marilyn B. Tavenner, secretary of health and human resources, defended the administration's efforts.

"We talked with advocates on both sides, going back several months," Tavenner said. "We talked to people who wanted partial bans. We talked to legislators. I don't know any one person was any more or any less included. We were just trying to come up with a policy that worked."

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