The objections of these two organizations seemed to focus on the revised definitions and the removal of exemptions and not the enforcement section of LB 45. They complained that LB 45 would prevent convenience stores from creating smoking areas for their customers and that it would prevent smoking in private offices. As Keigher stated, “This is a total ban on smoking in convenience stores.”Senator Thompson was aware of all the changes to the implementing regulations that had recently been developed by Health and Human Services. Except for the enforcement clause, LB 45 was a clean-up bill that sought to harmonize the language of the Nebraska Clean Indoor Air Act with the rules and regulations that would enforce it.After the hearing she told reporters, “They can’t now , with or without LB45. LB45 simply puts in statute what is already in the new rules and regulations, so it is easier for people to read the law and know exactly what it does.”To reporters, Keigher and Siefken both seemed surprised to find out that the Health and Human Services changes had very similar effects as LB 45. “That’s news to me,” claimed Keigher. “It sounds to me like this is a total smoking ban. And it is banned by the rules. Interesting.”Siefken responded by saying, “That is amazing. They don’t have the authority to do that. They have to follow what the Legislature intended them to do.”According to Goedeker, Keigher and Siefken’s surprise was feigned. She said that Health and Human Services had conducted meetings and exchanged correspondence with both the Nebraska Petroleum Marketers and Convenience Store Association and the Nebraska Grocery Industry Association to explain the effect that the new rules and regulations would have for them so both organizations were aware that LB 45 simply sought to clarify regulations that were already in effect. “I believe it was a good press opportunity for them,” Goedeker said. “
They knew what was going on,how to dry cannabis they knew that it wasn’t effecting their businesses any differently than it had before, but it was a good opportunity to confuse the media and confuse the public.”The activities of the lobbyists seemed to have their desired effect on the language of LB 45. Two senators on the Health and Human Services Committee, Philip Erdman and Doug Cunningham , both stated publicly that they were willing to send LB 45 on to the full Legislature if everything but the enforcement section measure was stripped from the bill, which was what happened.The Health and Human Services Committee drafted an amended version of LB 45 that removed twelve sections so that only the enforcement section remained, and then the bill was passed by a vote of 7-0.To Senator Thompson, this was an acceptable compromise because she felt the enforcement measure was the important new piece of the bill. The next hurdle for LB 45 was concern over the fact that the original language of the Nebraska Clean Indoor Air Act stated that “any affected party” could seek to bring an injunction against an establishment that was not in compliance with the Nebraska Clean Indoor Air Act.Some legislators were worried that this language would allow any individual to take a business to court over its smoking policy. During the second round of debate, an amendment was passed that removed the ability of an individual or a local board of health to seek an injunction requiring a business to comply with the law.Instead, the new language allowed local public health departments to seek an injunction in court.Another change was that previously, proprietors were required to ask smokers to refrain from smoking “upon request of a client or employee suffering discomfort from the smoke.”Because LB 45 actually made such a provision enforceable against business owners, legislators decided to amend LB 45 so that proprietors of businesses were only required to ask smokers to refrain from smoking if the smoker was smoking in the nonsmoking section.After these changes were made, LB 45 was approved by the Legislature by a 43-0 vote on March 14, 2003. It was signed into law by the governor on March 20143.
Even with the compromises that were made to LB 45, the passage of the bill meant that the State of Nebraska finally has the means to ensure that businesses, and not just smokers, are in compliance with the Nebraska Clean Indoor Air Act. In 2003, the Lincoln-Lancaster County Health Department headed an effort to pass a 100% smoke free workplace ordinance for the city of Lincoln, the capital of Nebraska and its second largest city. The other groups who also fought for this ordinance were the Lincoln Lancaster County Board of Health, Tobacco Free Lincoln , the Lancaster County Medical Association and the Nebraska chapters of the American Heart Association, American Lung Association and the American Cancer Society, attempted to pass a 100% smoke free workplace ordinance for the city of Lincoln. However, the Lincoln City Council caved in to pressure from the tobacco industry and its ally, the hospitality industry, to pass a confusing and weakened ordinance that allowed separated ventilated “smoking rooms” and exempted bars. In preparation for an attempt to pass a smoke free workplace ordinance in Lincoln, the Lincoln-Lancaster County Health Department requested a study of the harm caused by secondhand smoke to workers in the hospitality industry in Lincoln. James Repace, a health physicist who had conducted numerous similar studies, was contacted to measure the cotinine levels present in the blood of workers in Lincoln.Cotinine is a biomarker for nicotine exposure which is used to predict health risks.On May 5, 2003, Repace’s finding were released, which found that the cotinine levels for nonsmoking bar employees in Lincoln were 18 times higher than the national median and based on these findings, he estimated that 17 hospitality industry workers in Lincoln die each year from the exposure to secondhand smoke they receive in their workplace.In an effort to protect the health of workers and the general public, the Lincoln Lancaster County Health Department announced in August 2003 that it would put before the city council an ordinance that would require all indoor places of employment and all indoor public places in Lincoln, including bars and restaurants, to be 100% smoke free.
In their proposed draft of the ordinance, entitled the “Lincoln Smoke free Air Act,” which was released on August 19,how to cure cannabis places of employment were defined as “an indoor area under the control of an owner that employees access during the course of employment, including, but not limited to, work areas, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, and hallways.The ordinance defined public places as “an indoor area to which the public is invited or in which the public is permitted.”The only exceptions to this smoke free ordinance were that hotel and motel rooms could be designated as smoking rooms and smoking was permitted if it was being conducted as part of medical research. By requiring that all places of employment and public places be completely smoke free, the Health Department sought to provide comprehensive protection from secondhand smoke to the general public but also more specifically to employees.The Health Department’s draft of the ordinance also sought to avoid some of the problems that had plagued the Nebraska Clean Indoor Air Act such as enforcing the law against individual smokers. The effectiveness of the Nebraska Clean Indoor Air Act had been weakened by the fact that it could only be enforced against individual smokers, until the passage of LB 45 in 2003, so the proposed ordinance addressed this area by providing for $100-$500 fines against the owners of businesses that failed to comply with the law as well as against individual smokers.The draft ordinance also stated that failure to comply with its provisions was a sufficient cause to justify the revocation or suspension of an license granted to that establishment by the City of Lincoln. Another section of the ordinance, as originally proposed, was its signage provisions, which required the posting of at least one “no smoking” sign at all entrances used by the public or employees.In the Health Department’s first draft, the only acceptable “no smoking” signs were ones provided by the Health Department or the State of Nebraska, but this was changed to any sign using the international “no-smoking” symbol of a cigarette with a red circle and slash. First, the law was to apply not only to establishments within Lincoln but also to establishments within three miles past the corporate limits of the city.150 The Lincoln City Council has zoning jurisdiction over this three mile area in order to deal with city growth, so by including this area the Health Department was attempting to expand the effect of the law as far as possible.The first draft of the Lincoln Smoke free Air Act also stated that if a business had a food establishment permit that included an outdoor area, then this outdoor area was also required to be smoke free.This outdoor area provision, which mainly affected outdoor cafes and beer gardens, was included at the recommendation of Tony Messineo, a restaurant owner and member of the Lincoln-Lancaster County Board of Health. Following the announcement by the Health Department that it would propose a smoke free workplace ordinance, it became clear that the debate in Lincoln would be little different from the debate over the passage of the Nebraska Clean Indoor Air Act in 1979. At that time the tobacco industry and its allies in the hospitality industry had argued that the Legislature should not establish separate smoking and nonsmoking areas because they said there was little evidence that secondhand smoke was harmful, that it would have a harmful economic impact and that it was unreasonable government interference into private businesses.
The tobacco industry used these arguments in 1979, because, as Ray Oliverio, the Director of Public Affairs for the Tobacco Institute, said, “All of these arguments play well in Nebraska.”In 2003, over twenty years later, the tobacco industry and its ally, the hospitality industry, would use these same arguments to successfully oppose the passage of Lincoln smoke free workplace ordinance. The subtitle for the Lincoln Journal Star’s article the day after the announcement of the Health Department’s proposed ordinance for Lincoln accurately captured the nature of the debate that would continue for months in Lincoln. It read, “The Health Department and supporters call it an issue of employee health; to opponents, it’s a matter of free choice.”In the article, Brian Kitten, co-owner of a Lincoln bar named Brewsky’s, echoed tobacco industry rhetoric saying, “My belief: There will always be a market for an environment where a smoker can go in and have a meal and have a drink. Why make that illegal?”Kitten also said that he was skeptical about the harm caused by secondhand smoke. He asked, “Who do you believe?” and stated that different studies came to different conclusions.In the coming months, Kitten would serve as the primary spokesperson for the opponents of the local smoke free ordinance.Throughout the debate over the proposed 100% smoke free workplace ordinance, these two papers would maintain these positions with the Journal Star supporting smoke free environments while the Daily Nebraskan sided with the tobacco industry’s position that smoke free workplace laws violated the rights of business owners. Following hearings with business owners that were sparsely attending and after receiving comments from other city officials, the Health Department decided to make some changes to the draft of the ordinance. At the request of Lancaster County Board of Commissioners, the three mile area outside the city limits was removed so that only businesses within Lincoln would be effected.According to County Commissioner Larry Hudkins, this request was made not because the board disagreed with the intent of the proposed law but because they felt extending the smoke free changes further into Lancaster County only complicated the issue. Another change was the elimination of outdoor areas at restaurants and bars from the smoke free requirements, which was taken out after health advocates were unable to find research that specifically addressed the effect of secondhand smoke in an outdoor setting.Businesses that were located in private residences, which included daycare centers, were exempted from the smoke free requirement to avoid legal concerns about inspecting private homes without a warrant.