Pre-emption and Local Control Bill Roach, Office of the Attorney General Threase Harms-Hassoun, CAFE Iowa CAN

Smoking Prohibition Chapter 142B of the Code of Iowa prohibits smoking in public places or public meetings except in designated smoking areas. The term “public place” is defined as “any enclosed indoor areas used by the general public or serving as a place of work” at least 250 square feet in size.

The definition also sets forth a list of additional places included All restaurants with seating capacity greater than 50. All retail stores, lobbies, malls, offices, waiting rooms, and other commercial establishments. Public transportation within the state. Educational and health care facilities. Theaters, auditoriums, indoor arenas and meeting rooms.

Exceptions Tobacco stores. A private enclosed office occupied by a smoker. Dorm rooms. Hotel/motel rooms. A resident’s room in a health care facility. Factories, warehouses, and comparable workplaces not usually frequented by the general public (employee cafeterias are covered).

Preemption NO PREEMPTION = LOCAL CONTROL. “Preemption” refers to the power of state government to forbid localities from passing ordinances relating to certain subject areas. NO PREEMPTION = LOCAL CONTROL.

Preemption Language “Enforcement of this chapter shall be implemented in an equitable manner throughout the state. For the purpose of equitable and uniform implementation, application, and enforcement of state and local laws and regulations, the provisions of this chapter shall supersede any local law or regulation which is inconsistent with or conflicts with the provisions of this chapter”. [Iowa Code 142B.6]

Chronology Prior to 2000 ---- Iowa was presumed to be a preemption state.

The Law Also Says “Smoking areas may be designated by persons having custody of control of public places, except in places in which smoking is prohibited by the fire marshal or by other law, ordinance (emphasis added), or regulation.” [Iowa Code 142B.2 (2)]

Chronology November, 2000 ---- Attorney General Tom Miller issued an opinion indicating that state law in regard to SHS did not preempt local regulation.

Chronology August, 2001 --- The City of Ames passed the first Iowa ordinance increasing the secondhand smoke protections beyond those set forth in state law. September, 2001---- Some Ames restaurants, with the financial backing of Phillip Morris, sued the city.

Chronology February 2002 ---- Iowa District Court judge ruled that the ordinance was valid, and that there was no preemption. May 7, 2003 ---- Iowa Supreme Court overturned the District Court saying that Iowa communities are preempted from adopting ordinances inconsistent with Chapter 142B.

Proposed Language to Change State Law A city or county may provide for the enforcement, by ordinance, of standards and requirements that are higher or more restrictive than those imposed by this chapter. A local law may eliminate or limit the exemptions specified in subsection 1 of section 142B.2, may prohibit designated smoking areas notwithstanding subsection 2 of section 142B2, and may eliminate or limit the provisions of subsection 3 of section 142B.2.

Until the Law is Changed, We Cannot Add or subtract from list provided by the legislature as to where smoking is allowed or prohibited. Change the balancing of rights and prerogatives decided by the legislature in Chapter 142B.

Be We Can Conduct educational programs to inform about the dangers of second hand smoke. Restrict SHS in public places (buildings, vehicles) where the city council or board of supervisors is acting as custodian. Enact strong tobacco policies in schools by act of school board acting as custodian. Inform and persuade businesses to voluntarily go smoke free.

Local Action is Important Important part of comprehensive plan. Social change occurs at the local level. The campaigns themselves are as important as the result. Big Tobacco can’t be everywhere. State changes have occurred only after local communities have led the way.

Attorney General’s Office Assistance Technical assistance on matters of law, strategy, communications and planning. Some limited assistance with direct communications.

We Are Winning! 4,811 U.S. cities now have some form of 100% workplace ban as the result of local or state action. 35% of U.S. population is covered. Public opinion is with us.

CAFE Iowa Citizen Action Network Looking ahead to plan for the next year to move us through the end of the next legislative session. We have to get the groundwork laid over the interim to prepare to be in a mobilization mode for the 2005 legislative session We know from conversations with legislators this year that they are prepared to address this issue next session, so we need to inundate them with contact and support on this issue and display the work that is being done at the local level.

Overview Mission Local Control v. Statewide Ban History Goals Accomplishments 2005 Legislative Plan What can WE do What YOU can do

Mission CAFE Iowa CAN supports restoring local control to Iowa communities to protect the health of Iowans by passing and enforcing tobacco free environment policies. CAFÉ Iowa stands for Clean Air for Everyone The citizens action network was created to bring together local groups to approch restoring local control to the statewide forefront.

Local Control v. Statewide Ban Ease of enactment Industry has more money and influence at the state level than the local level Big Tobacco prefers to fight one battle at the state level Ease of enforcement and compliance Local enforcement agencies are accessible Compliance rates are higher for local ordinances Many of you are probably asking yourself the same question that legislators and the general public often question when they are approached about local control for clean indoor air, that’s great but I think they should ban it all together like California or New york, I visited there last winter and it was great. Or something like, I think they should just make the whole state smoke-free if so many people support it. There are many reasons why CAFÉ is working to support restoring local control to communities in Iowa rather than going for a statewide ban. If you look at the history of tobacco control initiatives is states like California and New York you will find a lengthy list of local towns and cities that worked at the local level to enact strong meaningful ordinances that truly protected the health of their citizens. Slowly, community by community the momentum was built in order to pursue an effective statewide ban. This did not happen overnight, that is where we feel Iowa is at, the building process

Why local control Supports a larger goal: societal rejection of tobacco use. Education, Education, Education The current state law forces people to accept a one-size-fits-all state standard that does not protect health. Local control gives communities the power to find a solution tailored to the concerns of people in the area. Local standards are easier to enforce because they emerge from a community discussion about what works best for that area.

History May 2003 Supreme Court Decision Fall 2003 founded CAFE Iowa and CAFE Iowa CAN CAFE Iowa CAN as a grassroots organization CAFE Iowa as an education organization Communities joined initiative Established SWATT Teams Introduced legislation 2004 session Established 501(c)3 and 501(c)4 status

Goals 5,000 members Educate communities across the state Pass law allowing for local control Provide technical assistance Implement clean air ordinances in local communities Secure additional funding

Accomplishments 21 communities have joined the effort 250+ individual members Secured legislative and grassroots counsel Introduced bi-partisan legislation Engaged media in issue Secured grant funding

2005 Session Roadmap Demonstrate public support Mobilize CAFE members Secure individual bi-partisan legislative support

What can CAFE Iowa & CAN do Provide training and technical support through consultants and SWATT members Legislative updates Be your voice at the Capitol Keep you informed through monthly updates Networking opportunities

What YOU can do Join CAFE Iowa CAN Organize a coalition in your community Recruit others to join Demonstrate public support Mobilize others

Demonstrate Public Support Letters to the editor Opinion editorials News stories Circulate petitions Organize a coalition to work on SHS issues in your community Legislative district meetings Community Forums

Mobilize CAFE Members Attend legislative forums Contact your legislators for a personal visit Respond to action alerts Attend legislative breakfast Attend special events Trainings Fundraisers

Secure Legislative Support Monitor feedback Collaborate with member organization lobbyists Grasstops mobilization ID grasstops in your community

We CAN do it! We are a resource for local communities. Please don’t hesitate to contact us for general information or technical assistance. We have a wealth of resources that are available to you. Please help us build our network. We will not be able to accomplish our goals if we don’t have members and if we don’t mobilize.

Mark Your Calendars January 10, 2005 Start of the Legislative Session February 3, 2005 CAFE Iowa CAN Training and Legislative Reception

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