Local ordinances have set the stage for statewide smoking-ban legislation, advocates say; poll shows a clear majority support it

By Tara Kaprowy
Kentucky Health News

Though advocates of anti-smoking laws don't believe a statewide smoking ban will pass in the General Assembly this year, they see public support for it and have come to the conclusion that it's time to get the discussion started.

"This will get the ball rolling at the state level," said Dr. Ellen Hahn, left, a nursing professor at the University of Kentucky and director of the Kentucky Tobacco Policy Research Program. "We know the best comprehensive laws won't happen overnight. We really need to start somewhere."

On Wednesday, state Rep. Susan Westrom, D-Lexington, filed House Bill 193, which would prohibit cigarette use in all enclosed public places and enclosed places of employment, including restaurants and bars. It also bans smoking within a "reasonable" distance outside of public places and work places.

Hahn, who has been reluctant to support a statewide ban, said Westrom's move is timely. Dozens of organizations now publicly support "smoke-free" laws, and 29 communities have enacted local smoke-free ordinances. "We're getting more ready every day because local leadership has shown the way," Hahn said. For a list of the communities and more details, click here.

As of now, 32 percent of Kentuckians are covered by smoke-free laws, and those numbers are growing, thanks, in part, to Campbell County's recent ordinance (though a new Fiscal Court is moving to repeal it before it takes effect). "I think the movement in Northern Kentucky has helped," Hahn said. "That's kind of the last urban area anywhere. Bans have also gone into effect in Bardstown and Glasgow. We've had some key places in the state if you look at the map. We're starting to fill in some areas."'

Hahn is the leading advocate for smoke-free ordinances in the state, but has long been reluctant to push for a statewide ban. "My hesitation was that we would end up with something bad, a law that would tie the hands of local government," she said. "And we didn't want something that was carved up with loopholes."

But the tide has turned, Hahn said. "I've said all along everyone deserves protection, everywhere. I don't think we'll ever see local ordinances in every locale in the state. In some ways, it's got to start some time and we're on first base. It's a process."

Jim Waters of the Bluegrass Institute for Public Policy Solutions, a free-market think tank in Bowling Green, replied to the developments this way: "Ironically, state politicians who loathe interference from Washington seem want to impose Frankfort's will on local communities. Some local communities like Bowling Green have had their own hard-fought, emotional battles over the smoking-ban issue. It would be outrageous for Frankfort now to come swooping in and possibly override their decisions."

Waters has branded Hahn "the smoking nanny" and debated her in a series of "Sorting Through the Smoke" seminars for journalists held by Kentucky Youth Advocates and the Institute for Rural Journalism and Community Issues, another UK-based center that publishes Kentucky Health News. For video of one encounter they had, in Danville, click here.

Hahn said it takes an average of two and a half to five years for Kentucky communities to pass smoke-free ordinances. As for enacting statewide bans, "It really varies across the country," she said, adding that she's willing to wait. "We don't want them to do something until they're ready," she said. "It's going to take a while for state legislators to study the science. They haven't done it before. We haven't asked them to do it."

What's important, Hahn said, is to wait until legislators are ready to pass a comprehensive law, not one subject to exemptions such as private clubs or nightclubs. Amy Barkley, a director for the Campaign for Tobacco-Free Kids, agreed. "Here's what's important: We don't want to settle for a half-baked law," Barkley said. "This is not an area that can be compromised."

Exemptions to the law lead to complications, Barkley said. "First, they mean that certain employees are not protected," she said. "If the intent of the bill is to protect people, why are some people more important than others?" Second, laws with exceptions are more difficult to enforce. "With a comprehensive law, everyone knows if you're indoors you can't smoke," Barkley said. "These things are very self-enforcing the more clear, concise and comprehensive they are."

Thirdly, exemptions can result in legal challenges," Barkley said, citing an example in Louisville when its smoking ordinance exempted Churchill Downs from being subject to it. "There was a lawsuit over that and the ordinance could not be put into effect while it was pending," she said.

Ultimately, both Hahn and Barkley are willing to bide their time. They both stressed the importance for local governments to continue their smoke-free efforts in the meantime. "These local officials shouldn't wait," Hahn said.

Poll shows clear support for statewide ban

A poll released Thursday by supporters of a statewide ban shows that a majority of Kentucky adults favor it, that opinions on both sides are strong, and that local communities should have the option of passing additional restrictions on smoking in public places and workplaces.

The telephone survey was taken Dec. 12-14 by Public Opinion Strategies, a well-regarded national firm that gave Kentucky Health News its questionnaire and the number of adults it called in each county. The poll asked, "Would you favor or oppose a state law in Kentucky that would prohibit smoking in most public places, including workplaces, public buildings, offices, restaurants and bars?" Then they were asked if they felt strongly about their opinion or were "just somewhat" in favor or opposed.

The results: 44 percent said they strongly favored such a law, while 15 percent said they were somewhat in favor of it, for a total of 59 percent. The opposition totaled 39 percent: 14 percent said they were somewhat opposed to the law, and the strongly opposed were 25 percent, the same percentage of adult Kentuckians who said they smoke. The strong opinions on both sides totaled 69 percent, a very high figure. The margin of error for the poll of 500 adults was plus or minus 4.38 percentage points for each figure, so a clear majority favors a statewide smoking ban.

Among smokers, 31 percent said they favored the law and 68 percent opposed it. Among the three-fourths of Kentuckians who don't smoke, the figures were virtually a mirror image: 69 percent in favor, 29 percent opposed. (The figures for smokers come from an interview by Kentucky Health News with Glen Bolger, a partner in the Arlington, Va.-based polling firm.)

Statistically, the poll found no difference among Democrats, Republicans, independents and tea-party supporters, with 55 to 60 percent identifying with each label saying they support a statewide ban.

While both leading candidates for governor, Democratic Gov. Steve Beshear and Republican state Senate President David Williams, have said they favor a statewide ban, neither has emphasized it, and there is skepticism among state legislators that it would be a deciding issue for voters. However, the poll found that 34 percent of voters said they would be "much more likely" to vote for a candidate for state office who supports the law, and 21 percent said they would be "somewhat more likely" to do so, for a total of 55 percent. On the other side, a total of 36 percent said they would be less likely to vote for a supporter of the law (20 percent much more likely and 16 percent somewhat). Only 6 percent said the candidate's position would make no difference.

The question initially described two alternative, unnamed candidates in terms of positions on the issue and asked, "For which of these candidates would you vote?" Even 31 percent of smokers said they would be more likely to vote for a candidate who supports a statewide ban.

Then the survey asked which is more important, the rights of smokers and of restaurant and bar owners, or the rights of employees and customers to breathe clean air in such establishments. (The alternatives were rotated, as were those on other questions.) A majority said employees' and customers' rights were more important, 53 percent much more so and 15 percent only somewhat. The poll did not differentiate between the rights of smokers and business owners or those of employees and customers.

Waters said, "Just because a majority of people in some poll say they want more government nanny-ism doesn't make it the right, or constitutional, action to take. The last time I checked, restaurant and bar owners' constitutionally protected private property rights are not subject to polling. In fact, the constitution exists for the express purpose of protecting those rights from some popular movement such as that being pushed by Kentucky's health nannies who want to deny Kentuckians their individual liberty to make their own decisions regarding smoking, eating and other lifestyle choices."

The main medical reason for smoking bans is research showing that second-hand smoke causes cancer and other diseases, and Kentuckians seem to accept those findings. Almost half, 48 percent, said exposure to second-hand smoke is a serious health hazard, while 28 percent said the hazard is moderate, 17 percent said it is minor, 5 percent said it is not a health hazard at all and 2 percent declined to say.

Many smokers acknowledged their risky behavior; 24 percent said second-hand smoke is a serious health hazard, while 35 percent said the hazard is moderate and 28 percent said it is minor. Only 10 percent said it is not a health hazard.

The poll found that regardless of what happens at the state level, 76 percent of Kentucky adults think local communities "should continue to have the option of passing additional restrictions on smoking in public places and workplaces." Fifty percent strongly agreed with the statement, and 26 percent agreed somewhat. Most of the 22 percent who disagreed did so strongly, again revealing the depth of feeling about the issue.

Waters said the Bluegrass Institute favors local control. "Even though we vehemently disagreed with the smoking bans implemented by Louisville, Lexington and other communities," he said, "we would be absolutely opposed to Frankfort overriding those local communities' decisions."

The poll also illustrated the precipitous decline of tobacco as a political force in Kentucky since repeal of the federal quota and price-support program in 2004. Only 6 percent of respondents said they grow tobacco or own land on which it is grown. For the poll questionnaire and results, click here.