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Kicking the Can on Smoking Ban

Mayor Euille’s proposed smoking ban is OK for now, but just wait until next year.

In Alexandria, the word "reenactment" is typically associated with costumes. An actor portraying Thomas Jefferson might reenact during an inaugural ball or an interpreter dressed as George Washington might welcome visitors to Mount Vernon. But at City Hall, the word has taken on a new meaning — just wait until next year. Voting unanimously for a "one-year reenactment," members of City Council promised to vote on the proposed smoking ban next year.

"None of us are under the impression that we need to be irrational," Euille told a packed chamber on Saturday morning. "But we would not be having this discussion if the state would take on this responsibility."

During a contentious public hearing on the proposed ban — one in which a screaming woman was threatened with eviction from the council’s chambers — an array of consequences were considered if the ban were implemented. The discussion included inquiries into freedom of choice, fears of a potential lawsuit from Phillp Morris USA and a unanimous determination to avoid a giant sucking sound from smoking establishments in Arlington. In the end, the City Council voted unanimously for a smoking ban that includes a "one-year reenactment" provision, requiring the council to vote on the issue again next year before it takes effect.

"The purpose of this ordinance is to create a healthier environment for restaurant patrons," said Rich Josephson, deputy director of the city’s Zoning Department, before Saturday’s public hearing on the issue. "We feel that prohibiting smoking from restaurants will, in the long run, enhance business in the city of Alexandria."

TO ACCOMPLISH THE goal of banning smoking in Alexandria’s bars and restaurants, City Attorney Ignacio Pessoa crafted an unusual plan that uses the city’s regulatory authority to force compliance with the city’s goal of eliminating smoking. In February, Pessoa presented City Council members with a plan modeled on a similar effort in Seattle that would use a text amendment to the city’s Zoning Ordinance as a method for force action. By bypassing a direct ban on smoking, which was rejected earlier this year by the General Assembly, Pessoa’s text amendment avoids Dillon Rule restrictions in Virginia that prohibit localities from many facets of self-governance.

"The rationale for the proposal is that restaurants which receive a zoning permit or some other benefit from the city must, as a condition of receiving or retaining that permit or benefit, agree to operate as a smoke-free establishment," wrote Pessoa in a Feb. 13 letter outlining the proposal. "Existing restaurants which do not agree may continue to operate, but will be severely restricted and in some cases effectively precluded from making any significant changes or improvements to the restaurant, and may be required to cease existing operations after seven years."

During Saturday’s heated debate about the proposed smoking ban, many speakers said that Pessoa’s text amendment was a misuse of the city’s zoning authority. Cathy Puskar, a land-use attorney who frequently represents developers before City Council, said that she felt Pessoa’s plan violated the purpose of the Zoning Ordinance. She said that circumventing the commonwealth’s Dillon Rule would be problematic in Richmond, and that the text amendment would invite a potentially expensive lawsuit.

"The purpose of the special-use permitting process is to mitigate impacts of use," said Puskar. "It’s not supposed to be used to regulate social behavior."

SUPPORTERS OF THE proposed ban praised the innovative nature of the proposal, congratulating Euille and Pessoa for pushing the envelope in an effort to improve public health. During Saturday’s hearing, several speakers said that the toxic nature of secondhand smoke warranted bold action. Alexandria resident Robert Keelin said that he was suspicious of those who opposed the proposal.

"The arguments against the smoking ban are misleading, self-serving and without merit," said Keelin. "No one — and that includes business owners — has the right to harm the health of another human being by purposely exposing them to toxic substances."

Speakers representing the American Heart Association and the American Cancer Society spoke in favor of the text amendment, referencing a 2006 report from the surgeon general titled "Health Consequences of Involuntary Exposure to Tobacco Smoke." In the report, the Surgeon General Kenneth Moritsugu concluded that "massive and conclusive scientific evidence documents adverse effects of involuntary smoking on children and adults, including cancer and cardiovascular diseases in adults and adverse respiratory effects in both children and adults." Many of the proponents of the city’s plan said that the surgeon general’s report indicated the need to limit exposure to secondhand smoke.

"Ventilation technology cannot be relied on to prevent health risks from secondhand smoke," said former Del. Marian Van Landingham (D-45), chairwoman of the Partnership for a Healthier Alexandria. "Separating smokers from nonsmokers, cleaning the air and ventilating buildings cannot eliminate exposure. It just distributes smoke through the buildings."

OPPONENTS OF THE ban included a broad cross section of business leaders and restaurant owners. During Saturday’s public hearing, several of them said that the proposal would initiate an expensive lawsuit. Furthermore, they said, adding more red tape to the city’s permitting process would serve to exacerbate the city’s reputation as a place that is not business friendly.

"This will create one more uncertainty," said Lonnie Rich, a former member of City Council speaking on behalf of the Chamber of Commerce. "In the end, the uncertainly will be bad for business."

Business owner Roger Fons said that business owners should have the freedom of choice to determine if patrons can smoke. Smoker Annabelle Fisher said that taxpayers will be stuck with the bill when a lawsuit against the ban is filed. And Alexandria resident Karen Kimberly said that the anti-smoking efforts are being funded by the smoking cessation industry that is eager to profit from reduced levels of smoking.

"You must be out of your minds if you think that Arlington is going to follow suit," said Pat Troy, Irish restaurateur and Republican stalwart. "I am mad as hell about this."