Ban Furor Now up in Smoke; Three years after Taking Effect, Limits Gain Acceptance

DOVER – As the state’s indoor smoking ban marks its three-year anniversary Sunday, Delawareans have largely adapted to cigar- and cigarette-free environs.
Complaints and violations have fallen steadily and surrounding states are getting close to enacting similar restrictions.
The Division of Public Health and Department of Labor, which enforce the ban, received 557 complaints in 2003, the first full year the ban was in effect.
That number dropped to 240 last year, and as of Nov. 16, the state had received 128 complaints this year.
Investigators use the complaints to decide which establishments to visit and inspect for violations.
In 2003, 45 fines were issued. Last year, the state handed out 25 fines, and so far this year, 10 have been levied.
“There has been a drop off in complaints and violations and it seems people are becoming accustomed to the Clean Indoor Air Act,” said Thom May, director of the state’s health protection systems unit, which investigates the complaints.
“As long as we receive complaints, we will continue to investigate. If we find violations of the Clean Indoor Air Act, we will assess a penalty.”
Delaware’s ban, officially known as the Clean Indoor Air Act, withstood a legal challenge in August when a Superior Court judge ruled the restrictions did not violate constitutional principles.
Frank Infante, owner of Bulldozer’s saloon in Smyrna, argued the ban violates the state constitution’s equal-protection clause by banning smoking in some places and not others.
The ban outlaws lighting up in bars, casinos, restaurants and other indoor public places, but allows it in private clubs and fraternal organizations such as an Elks Lodge.
Superior Court Judge Robert B. Young ruled in August that the legislature’s intent to promote public health by banning smoking while not intruding into private organizations was constitutionally acceptable.
“Equal protection does not require that the legislature eradicate all evils or none at all,” Judge Young wrote in his opinion.
“A legislature may even intentionally prohibit some evil in a piecemeal fashion if it so chooses. Accordingly, the General Assembly may regulate smoking in certain areas and not others.”
California and Delaware were the first states to implement smoking bans, but outlawing lighting up tobacco products is catching on.
New York City and Prince George’s County, Md., have outlawed smoking indoors, as have other municipal and county governments.
Legislatures in two nearby states will consider anti-smoking legislation in their upcoming sessions.
In Maryland, anti-smoking groups, buoyed by the newly adopted ban on smoking in bars and restaurants in Prince George’s County, will try to make the ban apply statewide when the General Assembly meets in January.
Maryland Senate President Sen. Thomas V. Mike Miller, however, is resisting suggestions that he use his influence to round up the votes needed to pass the bill.
In New Jersey, legislative leaders said last week that they were close to a compromise that would ban smoking inside public places throughout the state except gambling areas of casinos.
The ban, which could become law during the legislature’s December session, would include casinos’ shops and restaurants.
Acting Gov. Richard J. Codey has promised to see a ban passed before he steps down as governor in mid-January.
Delaware’s casinos, which lost customers because of the First State’s smoking ban, would prefer similar restrictions in New Jersey, where gambling representatives and some legislators are pushing for the gambling-area exemption.
“The people who were real smokers left and they are in Atlantic City or West Virginia,” said Dover Downs President and CEO Denis McGlynn.
“The customers we have now are happy the way things are, and everybody’s dealing with it. What we need now is for surrounding states to do the same thing so we are on a level playing field.”
Gov. Ruth Ann Minner, who championed legislation to implement the smoking ban, said she has received calls from officials in other states and localities asking for advice on implementing no-smoking laws.
“Mostly I say to them what I have said to everybody,” Gov. Minner said.
“This is not just about smoking. It’s about health. This will help everyone’s general health because people will no longer be exposed to second-hand smoke.”
Though Gov. Minner says members of the public often come up to her with suggested enhancements for the ban, she hasn’t decided to propose anything yet.
“Everyone said all the bars and restaurants would close, and they didn’t, and people said all the casinos’ customers would go away, but they haven’t,” Gov. Minner said.
“Believe me, I get a lot of people offering me suggestions. People have very strong feelings about what we should and shouldn’t do.
“We want to make sure we have all the information about the impact this has had before we do anything else. We are looking at different things but haven’t made any decisions.”
According to the Division of Public Health, two Downstate bars are the main violators of the ban.
Bulldozer’s in Smyrna has received eight fines, with the last five reaching $1,000 apiece. Last year, two other fines were dropped after Mr. Infante successfully appealed the state’s findings.
The state has fined Irish Mike’s in Dover six times, the last two being $1,000 citations, though the establishment has not been penalized since Dec. 8, 2004.
Carrie Leishman, president of the Delaware Restaurant Association, which represents more than 100 establishments and heavily opposed the ban, said the state’s eateries have largely accepted the restrictions.
“The fabulous thing about our industry is that we are adaptive to change,” Ms. Leishman said.
“We have to be adaptive because it is an ever-changing business. It’s not to say restaurants haven’t been hurt by the smoking ban. Does it mean they are making less profits? Probably.
“Our industry respects authority and respects the law. They do what is asked of them.”
The Clean Indoor Air Act authorizes $100 fines for the first violations and a penalty of at least $250 for future transgressions.
Before hitting the $1,000 mark with Bulldozer’s and Irish Mike’s, the establishments received fines of $250 and $500.
Public health’s Mr. May said he had “no guess” if fines would go higher for future violations.
“We talked to our legal department about the amount we should assess and arrived at $1,000,” he said.
“At this point, there have been no discussions about going higher but I’m not saying it’s off the table.”
Mr. May’s unit announced earlier this year it would begin fining individuals for the first time, instead of only levying fines against establishment owners.
This was done, he said, because in some cases customers testified they were smoking in a bar but the owner shouldn’t be fined because the bartender wasn’t aware of the illicit lighting up.
If such a scenario transpires in future cases, Mr. May said, the customer could be the one paying a fine.
So far, no individuals have been penalized, he said.
Originally written By: Joe Rogalsky 
Delaware Staff writer

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