Pierce County approves smoking ban in all indoor public places

By Sandi Doughton
Seattle Times staff reporter

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Puyallup backed down after opposition from the tobacco industry.

Now Pierce County has decided to do what no community in Washington has done: ban smoking in all indoor, public places, including bars, taverns, restaurants and bowling alleys.

The Tacoma/Pierce County Board of Health's unanimous vote on today's proposal came after a 4 1/2-hour meeting before a crowd of nearly 300 people that spilled into the hallways.

"I'm delighted," Health Department Director Federico Cruz-Uribe said, after the audience gave the board a standing ovation.

The ban is scheduled to begin in 30 days, but the Washington Restaurant Association has vowed to sue.

If the measure survives the legal fight, Pierce County would be the first place in Washington with such a sweeping ban, which is similar to those in California, New York, Delaware and more than 65 other cities, counties and states.

The vote opens the door for other local governments to follow suit. But first, the county must take on a 1985 state law that specifically allows smoking in eating and drinking establishments.

"We want a smoke-free Pierce County," said Federico Cruz-Uribe, the outspoken director of the Tacoma/Pierce County Health Department who is also a Republican candidate for governor next year. "If it means having to go to court, we'll go to court — and we feel pretty good about our chances."

A representative of the Washington Restaurant Association is equally convinced the measure won't stand up.

"They don't have the authority to override state legislation," said Gene Vosberg, the group's president.

'Waiting to see the outcome'

Cities and counties across Washington are watching closely, and similar debates about state versus local power are going on in several other parts of the country.

"We're anxiously waiting to see the outcome," said Roger Valdez, manager of tobacco-prevention programs at Public Health — Seattle & King County. The department gave up on a similar smoking ban in 1998, after a preliminary attorney general's opinion concluded local governments couldn't adopt rules that conflict with the state law.

The city of Puyallup repealed its 1994 smoking ban when restaurant owners, bankrolled by the tobacco industry, threatened costly litigation.

The Pierce County health department has gained a reputation for taking on high-profile issues, with mixed results. The agency successfully challenged a state rule that would have ended a controversial program tracking AIDS patients. But it lost in court over a ban on storefront tobacco ads.

Despite strong opposition, the department mandated water fluoridation last year and was hit with lawsuits that are still pending before the state Supreme Court.

The fate of the county's smoking ban will depend on how courts interpret the 1985 Washington Clean Indoor Air Act. The law bans smoking in most public places, including retail stores, buses, museums, schools, theaters and government buildings. Bars, taverns, bowling alleys and restaurants are specifically exempt. The law says owners can designate smoking areas or allow smoking throughout the facility.

To protect workers, the state Department of Labor and Industries restricted smoking in offices in 1994, but didn't challenge the exemption for restaurants and bars.

"There's nothing vague about the law," said Vosberg, who says bar and restaurant owners should be free to respond to the market and their clientele. Nearly 85 percent of restaurants in the state are already nonsmoking because that's what customers prefer, he said.

But Cruz-Uribe says health departments have the responsibility and power to protect restaurant and bar workers, as well as the public, from breathing cigarette smoke in any workplace or public establishment. And when communities adopt smoking bans, overall rates of smoking drop an average of 5 percent.

Legally, Cruz-Uribe argues that the attorney general's advisory prepared for King County didn't delve deeply enough. When health-department attorneys researched the 1985 law, they discovered legislators considered — and rejected — a provision to bar local governments from writing their own smoking rules.

"It's pretty straightforward that was not the Legislature's intent," Cruz-Uribe said.

As smoking bans proliferate across the country, so do lawsuits, said Bronson Frick, associate director of Americans for Nonsmokers' Rights. Several states, including California, New York, Delaware, Florida and Maine, have adopted statewide bans that have survived legal challenges.

Many other states have laws like Washington's, which carved out exemptions for restaurants and bars. Efforts to override such state laws have failed in Iowa and New Hampshire, but were upheld in Texas and Kentucky, Frick said.

"Courts often determine that the state law merely sets a floor, instead of establishing a ceiling, since the goal is to protect public health."

Kevin Phelps, chairman of the Tacoma/Pierce County Board of Health, predicted a unanimous vote today, largely because the public-health arguments in favor of the ban are so strong, and experience across the country shows little, if any, economic impact.

Impact on business weighed

"To me, it's a no-brainer," he said. "This is something that is proven to have a dramatic impact, not only on protecting employees, but also in reducing the overall use of tobacco in communities."

Vosberg said individual bar and restaurant owners will lose money, which may be enough to drive some out of business.

"If a significant portion of your business goes away in this economy, good luck," he said.

Phelps estimated it could cost $200,000 to $300,000 to fight the restaurant association's lawsuit. Vosberg said the group receives no money from the tobacco industry, but wouldn't rule out the possibility of industry assistance in the legal action.

Cruz-Uribe said the department has $100,000 in a legal contingency fund. Another health-department official said anti-smoking groups might help to pay the legal bills, if necessary.

Kathleen Dorr hates the way the smell of smoke lingers on her clothes and hair after even brief exposure.

"I chose not to go into places because of the smoke," said the Tacoma nurse practitioner. Some of the patients she works with suffer from lung disease she believes was caused, or aggravated, by living with a smoker.

Jeff Fraychineaud owns the nonsmoking Parkway Tavern in Tacoma's North End, but also owns Hank's, a pub four blocks away with a smoking clientele. A nonsmoker himself, Fraychineaud opposes the ban, which he sees as government interference. "What's next?" he asked. "Maybe they won't let us sell French fries because those are bad for people."

He's also unhappy because Indian casinos could be exempt from the health-department rules.

Win or lose, Pierce County's efforts may help to spur the state Legislature to consider a statewide smoking ban, said Sen. Rosemary McAuliffe, D-Bothell, who sponsored an unsuccessful bill last session.

Cruz-Uribe said the Pierce County Health Department worked for years to promote a statewide ban, but finally decided to forge ahead on its own.

"Oftentimes, what spurs statewide initiatives is when a city or a county takes action."

Sandi Doughton: 206-464-2491 or sdoughton@seattletimes.com

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