This 31 minute broadcast chronicles the continuing advocacy efforts of Iowans for Equal Rights. A recap of events during and after the October 14, 2008 meeting of the Iowa Legislature’s Administrative Rules Review Committee. This broadcast highlights the extreme importance of smoking ban opposition advocates competently engaging the rulemaking process. There is a new strategy being employed by tobacco control that portends an entirely different focus for ban opponents if they are to be successful. The old ways of arguing Environmental Tobacco Smoke and/or property rights are rendered moot by the new tobacco control approach.
Iowa’s House File 2212, which created the Iowa smoking ban, includes language that statutorily declares smoking in public places to be a public nuisance. The Iowa Department of Public Health and the state Board of Health did not elect a threat to public health as the basis for the emergency declaration under which the current enforcement rules were adopted. An emergency declaration effectively precludes public comment which the health department has a legal duty to consider fully or respond to. The source legislation and health department rules do, however, authorize enforcement steps to abate a public nuisance. Once a public nuisance has been statutorily created by the legislature no proofs as to a threat to public health need be established created. Tobacco control merely states that the extent to which ETS is a bona fide public health threat is moot because they are merely seeking to abate a public nuisance, as has been statutorily declared by the legislature. In addition, recent changes to rules by the Iowa Health department expressly permit anonymous complaints. Proofs concerning public health or the validity of complaints are no longer required. A mere anonymous complaint and the statutory declaration of a public nuisance in House File 2212 are all that are required to suspend or revoke a business owners licenses and/or permits required to operate their establishment.
For an example of how the public nuisance issue can be and is applied by anti-tobacco please see Inside Bay Area.com, October 27, 2008, Dublin Couple May Have Set Anti-Smoking Precedent, by Sophie Kazmi:
DUBLIN — All Nancy and Chuck Sanders wanted was their downstairs neighbor to quit smoking near their home on Cottonwood Circle. But in their quest, they may have help set a national legal precedent. The Sanderses may be the first in the country to resort to getting a temporary restraining order against a neighbor to deal with secondhand smoke. Backed up by tough, new ordinances in Dublin, they won a court order to prohibit a neighbor from smoking within 25 feet of their residence, or in any room in the apartment complex that shares an air duct or ventilation system with their unit. The American Lung Association said it has not heard of anything like this happening in the Bay Area or nationally. "As far as I know, no one else has used the temporary restraining order route," said Serena Chen, policy director of the American Lung Association of the East Bay. With the order, signed in March by Alameda County Superior Court Judge Charles Smiley, the couple got permission to call the police to enforce the order or to arrest the neighbor. . . . The couple learned of Dublin’s ordinance declaring secondhand smoke a nuisance and decided to take him to court. The Dublin City Council approved the secondhand smoke ordinance in 2006 — the first city in the Bay Area to do so. With that declaration, neighbors who have issues with cigarette smoke would have an easier time making their case in small claims court.” (Underline added.)
Again in Dublin, California, as in Iowa under the current rules, no threat to public health form tobacco smoke need be established. The mere fact of the city ordinance declaring ETS to be a public nuisance is sufficient to grant a restraining order that can be enforced by police arrest.
Earnest opponents of smoking bans would be well advised to progress to addressing these new facts and strategies as advanced by tobacco control. Failure to do so assures that opposition concerning ETS, property rights and constitutional issues will predictably fail because anti-tobacco has engineered a way to stand in court and demand that a judge enforce what is statutorily provided for in the law, regardless of the public health facts.
The first places to start are understanding how to engage the rulemaking process and exploring the implications of public nuisance declarations in each state. This broadcast provides information about how to engage the rulemaking process. The implications of public nuisance have been previously published by Iowans for Equal Rights in their policy analysis paper Iowa 2008 Smoking Ban and Eminent Domain (stored copy).
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