Iowa Lawmaker Says Smoking ban rules overstep legislative intent

From Des Moines, Iowa:

The state’s proposed rules to regulate a statewide smoking ban treats hundreds of bars as restaurants, which means customers won’t be able to smoke in outdoor patio areas, some business owners and a few legislators said today.

"In my mind and in the minds of just about every single legislator I’ve talked with in the past week – and that’s about 20 or so – this is an absolute perversion of the legislative intent. Period," said Rep. McKinley Bailey, a Webster City Democrat.

The state's administrative rules are intended to help clarify and implement laws and spell out details of enforcement. The Legislature's Administrative Rules Review Committee discussed the proposed rules for the smoking ban today.

The Legislature this year approved a ban on smoking in almost all public places, including bars and restaurants, effective July 1. One provision in the law allows bar owners to permit smoking in their outdoor patio areas but prohibits restaurants from allowing outdoor smoking.

The rules, also effective July 1, say that bar food is limited to ice, pre-packaged snacks, popcorn, peanuts and the reheating of commercially prepared foods that do not require assembly, such as frozen pizza.

Under that definition, bars that have a grill and serve a burger, for example, would be considered a restaurant.

The draft rules were recommended by the Iowa Department of Public Health, along with a number of other state agencies, including the attorney general's office and the Department of Inspections and Appeals.

"This is a clear case where a state agency is going beyond the scope of the intended legislation," said Tom Baldwin, owner of Drink, a Clive bar.

Roughly 3 percent of Drink’s sales are from food. But because of the proposed rules, the facility would be considered a restaurant for the purposes of enforcement of the statewide smoking ban, he told the rules committee today.

The Iowa Board of Health is expected to vote on the rules at 2 p.m. today The rules are likely to be put into place by July 1 even though a public comment period will continue through Aug. 6, said Don McCormick, a spokesman for the Department of Public Health.

State officials involved in the rules committee could revise them as a result of public input, even after the July 1 start date, he said.

More information on Iowa Anti-Smoking Laws:

RULES: The rules, including information about the rule-making process and how to send state officials a comment about the law, can be found at www.iowasmokefreeair.gov.

Smoking ban details

PLACES WHERE SMOKING IS BANNED: Bars; restaurants; restaurants' outdoor seating areas; financial institutions; public and private educational facilities; health care provider locations; laundries; schools; public transportation facilities, including buses and taxicabs, and the ticketing, boarding and waiting areas of these facilities; reception areas; aquariums, galleries, libraries and museums; retail food production and marketing establishments; service establishments; retail stores; shopping malls; entertainment venues, including theaters, concert halls, auditoriums and other similar facilities or sports arenas; polling places; convention facilities and meeting rooms; waiting rooms; public buildings and places of public assembly owned, leased or operated by the state; private residences when used as child care facilities or health care provider locations; and child care facilities.

PLACES WHERE SMOKING IS ALLOWED: Outdoor areas of bars; veterans organizations, except at functions where the general public is invited; farm tractors and trucks; fairgrounds; designated areas of National Guard facilities; designated areas of correctional facilities; areas of casino gambling; some hotels; tobacco stores; semiprivate rooms in long-term-care facilities; many outdoor areas that are places of employment; most limousine services; and homes, except those used as child care facilities.

Smoking ban enforcement

FINES: A person caught smoking in a banned area is subject to a $50 fine. Employers or caretakers of public places who fail to enforce the law are subject to a $100 fine for the first offense, $200 for a second offense, and $500 for other violations within one year.

EMPLOYERS: An employer who fires, refuses to employ a worker, or retaliates against an employee who complains about a violation is subject to fines of $2,000 to $10,000.

SIGNS: The proposed rules outline the responsibilities of property owners or government officials to post no-smoking signs.

COMPLAINTS: The state's health department designates each law enforcement department in the state to help with enforcement. A toll-free number will be set up for people to complain about violators. Complaints may also be filed with state officials online at www.iowasmokefreeair.gov.

RULES: Once legislation is signed by the governor it becomes part of the Iowa Code. Some laws require or authorize a state government agency to adopt administrative rules, which are the regulations the agency uses to implement the law.

EXPEDITED: The state's standard rule-making process takes at least 108 days and frequently lasts six months or longer. Because the smoking ban was signed into law by Gov. Chet Culver on April 15 and takes effect July 1, state officials are using an emergency rule-making process.

HEARINGS: The process involves public hearings and public comment periods. State health officials will hold at least five public meetings throughout the state. The public may comment now through Aug. 6. The dates of the public meetings will be posted online at www.iowasmokefreeair.gov.

PUBLIC: Even though the rules may be adopted, public comments made before the Aug. 6 deadline will be considered and could play a part in revisions to the rules. Revisions would probably be made in October.