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Can I Have Some Salt With My Diesel Exhaust?

If you've read this blog for any amount of time, you likely know I occasionally enjoy a good cigar. But not with my food. Or, for that matter, anybody else's food.

Many of you don't either, even in Tasmania. But I'm getting slightly off track.

You'll understand, then why it was a bit surprising to read that the Washington Supreme Court doesn't agree. They decided not to enforce a local ban prohibiting smoking in restaurants in favor of a state statute that allowed businesses to make the the decision whether to allow smoking or not. I'll get to the legal issue in a moment, but one immediately interesting aspect of reading this case was who disagreed with the Washington Supreme Court:

The American Cancer Society, the American Heart Association, the American Lung Association, the AMA, and a lesser-known group, Americans for Non-smoker's Rights, along with a host of other amicus curiae.

To understand this decision, we begin at the beginning. The State of Washington enacted the "Clean Indoor Air Act" back in 1985. So what does the act prevent?

Smoking indoors in a public place. Or so it would seem.

Don't get too far ahead: there's an exception for restaurants.

The local health board in Tacoma was not too happy with the exception, and passed a stricter ban that prevented smoking in restaurants. The Entertainment Industry Coalition in Washington challenged this ordinance enacted by the health board: "{S}moke free air is mandated in all indoor public places, including a presumptively reasonable minimum distance . . . of twenty-five (25) feet from entrances, exits, opening windows and ventilation intakes . . . ."

The EIC claimed that the state's Clean Indoor Air Act allowed restaurants to designate smoking areas, but the ordinance eliminated their ability to do so under state law. They screamed "conflict preemption," arguing that a local agency cannot enact legislation that prohibits what is permitted by state law.1 State law, they said, has to control.

The health board countered with a novel argument. It claimed that by allowing business owners to determine whether and where to designate smoking areas, the state impermissibly delegated its legislative authority to private parties. I would have added to that argument that if the state had delegated such authority to private parties, then the health board's regulation of such conduct was within its legislative authority to regulate local activity. That last argument likely would have lost, too.

The Seattle Post-Intelligencer printed an article about the decision this past Thursday. It featured an interesting statistic not cited by the Washington Supreme Court:

"Sitting in a smoky bar exposes people to more air pollution than sitting behind a diesel truck at rush hour, according to a study published in the September issue of the Journal of Occupational and Environmental Medicine."

Just think. When you eat at a restaurant in Washington, you might as well just sit outside at a truck stop.

Footnote

1 If you're following that bouncing ball, here's where we are: An ordinance regulating an exception to a ban. In other words, the health board tried to eliminate a loophole in the state's smoking ban statute. back

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Saturday, February 12, 2005 at 09:50 Comments Closed (0) |
 
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