On the last afternoon of June one year ago I sat at a table in Thumbs sipping a beer. A half-dozen or so regulars were gathered up front inside the popular West Street bar that day, drinking and smoking and talking to the bartender. One topic soon came to dominate all conversation: the next day, when the patrons, much to their dismay, would no longer be allowed to smoke there. On July 1, 2008, after several months of political maneuvering at the Statehouse, the Iowa Smokefree Air Act was to become law. In the interest of public health, it would prohibit cigarette use at nearly all places of employment and state-owned properties and their grounds, a restriction praised by many but also troubling to many tavern frequenters and a number of business owners – particularly those operating bars – worried about a drop in clientele and frustrated over an exemption for casinos.
One year later now, the state is lauding the smoking ban as a big success. A June 30 press release from the Iowa Department of Public Health credited an effective educational effort for an exceptional level of compliance with the law, which the IDPH claimed is protecting employees from lung cancer and heart disease caused by secondhand smoke “in more than 99 percent of Iowa’s businesses, making it one of the most comprehensive in the nation.” The results of a state survey showing that just 14 percent of Iowans smoke – down from 19 percent two years ago and 41 percent in the 1960s – has been attributed to the ban in conjunction with a dollar-per-pack tax hike on cigarettes signed into law by Democratic Governor Chet Culver in March 2007.
At Thumbs, I’m told people don’t talk about the smoking ban much anymore. “Oh yeah, they’ve come around,” Ozzie Rodriguez, who has bartended there for the past three years, says. “With this place, we’ve got the patio. It’s what helps out. Business didn’t go down at all.” Under the law, bars – but not restaurants – are allowed to let customers smoke on outdoor patios, an incentive for customers reluctant to abandon their drink to go out front for a smoke. “It really sucks in the wintertime,” Thumbs regular Nick Maselli says of the ban, but the patio has won him over. It’s kept him away from bars in Campustown, where he works at Copyworks. “I don’t frequent those establishments like I should. I don’t want to go stand outside on the corner of Lincoln Way and have traffic driving by watching me smoke.”
Campustown is sandwiched between the Iowa State University campus to the north and fraternities, sororities, and apartments to the south and east. On busy school-year nights the bars still commonly fill to capacity, creating lines outside as people wait impatiently for others to leave. There are almost always groups gathered outside smoking, regardless of the weather. Some old regulars, like Maselli, have migrated to other bars because of the ban, and the few patioed establishments in the area, like Mickey’s Irish Pub, may have benefitted at the expense of others, but on the whole Campustown bars continue to have no problem bringing in customers thanks to a perennial supply of thousands of college students.
Downtown, on Main Street, DG’s Tap House bartender Alicia Miller has a more sobering account of the ban’s effect on business. “Right now it’s just hard to tell with the economy the way it is, you know, and the decline, I mean we’ve had a huge decline in business in general,” she says. “I would say we took a huge hit after the smoking ban, for sure.” DG’s is a second-story bar that sits on top of another bar, The Corner Pocket, both owned by Scott Griffin. The Corner Pocket, Miller said, has been around for nearly three decades, so longtime customers loyal to Griffin’s establishments are still unhappily adjusting to the new law. Smokers dislike walking down DG’s flight of stairs for each break, and patrons leaving the pizza restaurant Great Plains Sauce & Dough Company next door dislike the smoke outside. Miller says not having smoke blown in her face is nice, and that she doesn’t personally mind the law, but adds, “It doesn’t stink everywhere, you know. But that’s the only good thing I’ve heard about this whole smoking ban.”
Beyond anecdotal accounts, it’s difficult to get a good grasp of the economic impact the smoking ban has had on Iowa businesses. Herman Quirmbach, a Democratic state senator from Ames and passionate advocate of anti-smoking legislation, believes that once the ban undergoes critical review it will show there has been a negligible effect. “I think we’re going to find two, three years from now, four years from now, if Iowa is like every other place in the country where similar laws have been implemented and the impact has been studied, we will find that there has been no loss of business, no loss of revenue or profitability for the businesses that are affected,” he says. Most studies conducted in other states with smoking bans lend credence to the senator’s prediction. In a 2006 report entitled The Health Consequences of Involuntary Exposure to Tobacco Smoke, the U.S. surgeon general’s office cited this research, writing, “Evidence from peer-reviewed studies shows that smoke-free policies and regulations do not have an adverse economic impact on the hospitality industry.”
Others, of course, beg to differ. Jonathan Tomlin, an economist at the consulting firm LECG, is one of them. His peer-reviewed article, “The Impact of Smoking Bans on the Hospitality Industry: New Evidence from Stock Market Returns,” studied a proposed smoking ban in India. In an article published last month at Forbes.com, he contended that “many prior studies of smoking bans are riddled with statistical shortcomings,” citing imprecise analyses that often neglect outside factors. He also wrote that “it is . . . a possibility that any ban will lower smoking patrons’ demand for the services of bars, restaurants and gaming establishments where smoking is not permitted. Basic economic theory maintains that such lower demand could lower the profits of any bar or restaurant subject to such a ban.”
Although proponents of smoking bans will contend that new non-smoking customers more than make up for any otherwise lost demand, Tomlin’s conclusion is undoubtedly one with which Brian Froehlich would sympathize. Froehlich runs Fro’s Pub and Grub in Wilton, a town of about 2,800 people in eastern Iowa, and is among the state’s most vocal opponents of the smoking ban. In anticipation of the new law, he founded the Iowa Bar Owners Coalition in February 2008, the same month the Iowa House first voted on a draft of the bill. “That idea was started by me, trying to have a way to get our legislators to listen to us,” he tells me. “You had to be somebody. You had to be with somebody, because as a private citizen they pretty much told me to my face that they really didn’t care about my feelings.”
On February 19 last year, the House, by a 56-44 vote, passed the bill‘s initial draft to the Iowa Senate. Eight Republicans voted for the bill and eight Democrats against it. At this stage, similar to the eventual law, the bill proposed banning smoking in most businesses and at events held on public property but exempting casinos and some private clubs, including veterans’ homes. On the 27th, the Senate voted 29-21 mostly along party lines to rescind the casino and veterans’ homes exemptions. The House relaxed the bill’s restrictions on March 12, exempting the Iowa Veterans Home in Marshalltown as well as bars, restaurants, and casinos that barred individuals under the age of 21 from entrance. By a 27-23 vote, the Senate rejected the new revisions, landing the bill in a conference committee comprised of six Democrats and four Republicans. The final bill, approved by the Legislature on April 8 and signed by Culver on April 17, charged the IDPH with implementing enforcement guidelines. With 10 weeks to go, the state scrambled to create a system to handle violations, and to clarify vagueness in parts of the law to confused business owners. By July 1, most questions had been answered as the ban, which allows smoking on gaming floors of casinos, at the Veterans Home, and in a small handful of other places but not in bars or restaurants, went into effect.
Still, Froehlich says, because of the “behind closed doors” nature of the committee process, lawmakers “dropped the bombshell on all of this.” When the specifics of the law were unveiled on June 2, Froehlich’s IBOC partnered with Choose Freedom Iowa, Clinton’s Organized Bar & Restaurant Owners, and Froehlich Properties, Inc., to file a lawsuit against the ban and request an emergency injunction. Initially, the partnership sought out the assistance of attorney (and former Governor) Tom Vilsack, who saw a potential constitutional question of equal protection in the casino exemption. Ultimately, Froehlich and six others involved in filing the injunction chose against asking Vilsack, who now serves as President Obama’s secretary of agriculture, to represent them. “He wanted to basically go after all exemptions and we wanted to basically get our exemption,” Froehlich says.
The group instead settled on former Republican State Representative George Eichhorn, who was introduced to Froehlich by fellow IBOC member Joe Sturgis, owner of the Rusty Nail bar and grill in Davenport. The two met at a rally held by Sturgis during his unsuccessful bid – inspired in part by the smoking ban – to unseat Democratic State Representative Cindy Winckler, who voted for the ban. “We had discussions with George and appreciated his understanding of the Constitution,” says Froehlich, who considers his fight to be a matter of civil rights as much as it is to protect his business interests. “As soon as he was chosen and hired he filed the paperwork immediately.”
Froehlich’s coalition didn’t get its day in court until shortly after the smoking ban had taken effect, at which point a judge refused to grant an injunction against the law on the grounds that there was not sufficient evidence of financial hardship. With the lawsuit itself still alive, Froehlich decided to take a test drive in civil disobedience by allowing his customers to continue smoking at Fro’s. Soon, he received his first notice of potential violation (NOPV). “It’s not a fine; it’s not a notification that you’ll ever even receive a fine,” explains Aaron Swanson, an executive officer with the IDPH Division of Tobacco Use Prevention and Control. “It’s an educational letter that’s generated as a result of our department receiving a complaint from an individual who feels they’ve observed a violation of the Smokefree Air Act.”
The notices are the cornerstone of the state’s educational approach to the law, and first-year results suggest that they are successful. Just over one percent of Iowa’s more than 82,000 businesses have received any (53 percent of them were bars and restaurants) and, Swanson tells me, of those thousand or so places only 79 percent have received subsequent notices. But Froehlich scoffs at this approach. The notices include information about the smoking ban and a state-partnered community contact to approach for additional advice. Where Froehlich lives, that contact is the American Cancer Society (in Ames, it’s Youth and Shelter Services), which contacted him upon his second NOPV. “Which I think is a crock,” he tells me. “You’ve got a private agency in cahoots with a public agency here, totally wrong.”
Multiple complaints phoned in to the IDPH yield more than a courteous reminder of the law. They also often result in increased scrutiny from law enforcement officials, whose sole authority it is to issue civil penalties for violations they witness, and from the state’s Alcoholic Beverages Division, which has the authority to suspend and revoke liquor licenses. A ticket of first offense for a business has a price tag of $100. The second within the same year is $200, and the third and subsequent violations within the year are $500 apiece. Individuals caught afoul of the law are charged $50. “That premise is why I chose to temporarily defy the law and practice civil disobedience,” Froehlich says. “I felt, well, a hundred dollar fine is better than losing 85 percent of the clientele, or them not coming in as often or staying as long.”
Although Froehlich is quick to tell people that his willful noncompliance with the law was transitory, it was nevertheless enough to land him in front of an ABD administrative judge in Ankeny. In hopes of minimizing damages – an extended liquor license suspension, for obvious reasons, can be fatal to a bar – several business owners have compromised with the state for a seven-day suspension and $1,000 fine. But Froehlich, who was facing a 21-day suspension, appealed the decision and was subsequently slapped with a 30-day suspension by ABD Administrator Lynn Walding on April 8, a decision he is now appealing to Iowa district court. That same day, Larry Duncan, owner of Otis Campbell’s Bar & Grill in West Burlington, on appeal for his own 30-day suspension for intentional disregard for the law, had his liquor license revoked.
In May, a Polk County judge dismissed the lawsuit filed last year by Eichhorn after Froehlich’s coalition chose to withdraw it. Rather than signaling a white flag, however, Froehlich hopes his personal appeal, in tandem with Duncan’s continuing legal battle, will take the lawsuit’s place and lead to a hearing in front of the Iowa Supreme Court. (Meanwhile, both men’s businesses are permitted to continue serving alcohol while under appeal, and although Froehlich has his own personal lawyer, he says Eichhorn continues to offer legal advice.) Should the appeals reach Iowa’s high court, the best legal argument will likely be the one that caught Vilsack’s eye last year: that the smoking ban is in violation of Iowa’s equal protection clause because it allows smoking on the gaming floors of casinos. Quirmbach, who also opposes the casino exemption, calls that “the only potential constitutional argument, that we’re not treating people in equal circumstances equally.”
Instead of seeking the end result of eliminating the casino exemption, as Vilsack proposed, Froehlich would contend that there is not a significant enough difference between bars and casinos to warrant their disparate treatment under the ban. They are both adult entertainment venues, he would say, and therefore the law should be thrown out altogether. But Quirmbach believes that this argument would ultimately fail. “Unless they want to say that there should be gambling in every bar then they have to recognize that the Legislature does have the authority to draw distinctions as to what’s allowed and not allowed between bars and casinos,” he says. “Given that we’ve created the legal distinction, if we can’t attach additional conditions to it, well, it would be an astonishing ruling of our Supreme Court.” Even if the court did rule that way, he says, it would only be a matter of time before the Legislature retooled the law to eliminate the casino exemption, in the process also eliminating opponents’ sole case against a renewed ban.
Regardless, Quirmbach predicts that within five years the casino exemption will be gone. As he himself alludes to, it was a political concession (“politics being the art of the possible”), presumably to lawmakers worried about losing millions in state tax revenue and campaign funds from industry lobbyists. Otherwise, casinos could be the Smokefree Air Act’s poster child. It’s hard to imagine a better example of smokers’ bad health on perpetual display than a casino’s gaming floor, where rows upon rows of slot machines are occupied by individuals in close quarters, many of whom chain-smoke with one hand as they insert their coins, operate their levers, and, in more instances than one might think, adjust their oxygen tanks with the other for hours on end. And there is broad scientific consensus that prolonged exposure to secondhand smoke can cause the same health detriments as smoking. Statistics collected by the federal government’s Centers for Disease Control and Prevention show that the smoke contains at least 50 cancerous chemicals and results in the deaths of tens of thousands of non-smokers every year.
Another common contention from smoking ban opponents is that of just compensation, that private property has been harmed for public use and business owners are legally entitled to reimbursement for lost income. But it’s difficult to prove damages. Coupled with the economic downturn that began to complicate business trends before the law took effect (and, some say, provided an excuse for the ban’s proponents) and the lack of success this argument has had in other states, it presents a strong rhetorical plea for smaller government and civil liberties but little potency as legal recourse. “The truth of the matter is that restaurants and bars in particular are already regulated from door to dumpster,” Quirmbach says. “So one more regulation that is well grounded in demonstrated concerns for public health is clearly within the purview of the state Legislature to enact. Clearly within the purview.” He adds, “I think that we have a damn good law, I really do.”
If Duncan’s and Froehlich’s appeals do reach Iowa’s Supreme Court, they wouldn’t be the first to demand of it a ruling on the constitutionality of smoking bans. On March 6, 2001, when Quirmbach sat on the city council, Ames voted to disallow smoking from 6 a.m. until 8:30 p.m. in restaurants and bars that earned more than 10 percent of their profits from non-alcoholic food and drink, making it the first town in Iowa to pass such an ordinance. With financial backing from cigarette manufacturer Philip Morris, seven businesses – later joined by an eighth – concerned about losing income filed suit seeking an injunction about two months after the ban took effect in August 2001. A Marshalltown judge denied the injunction that October, and another district court later also ruled in the city’s favor, but the legal wrangling continued until May 7, 2003, when the high court struck down the Ames ban and a similar one in Iowa City on the grounds that they ran counter to state law. (After the ruling, Ames kept the unenforceable ordinance on its books, and some businesses chose to voluntarily continue to comply.)
It appears unlikely that the Statehouse will reexamine the Iowa Smokefree Air Act in the near future. Attorney General Tom Miller said as much at a press conference on the anniversary of the ban. He suggested that if the state did take another look at the law it should be to further reduce the percentage of smokers. “The trend is there,” he said, “and we need to accelerate the trend.” Either way, Quirmbach says he thinks it will be at least a couple years “until a consensus emerges for changes.” As Froehlich reminds me, Democratic majority leaders were quick to stifle further debate to protect their law following its long, convoluted journey into being. He believes that once Republicans regain control of state government they may roll back some of the ban’s restrictions but not the entire bill, “because nobody wants smoking in restaurants, smokers and non-smokers alike.” Were that to happen, contentions of equal protection violations would almost certainly continue to arise.
Some prominent Republican lawmakers see Culver’s support for the smoking ban as a potential liability when he runs for reelection in 2010, including U.S. Representative Steve King and former lieutenant gubernatorial candidate Bob Vander Plaats, both of whom are commonly mentioned as potential Culver challengers. Although King’s or Vander Plaats’s eccentricities would probably be a much larger liability, if the ban does become a campaign issue it is ripe for evocative campaign attack ad fodder – Mari Culver was caught illegally smoking in a state-owned vehicle last November by The Des Moines Register.
If the law is given another look, there are a number of peripheral issues that could be addressed. Because the ban required the removal of ashtrays in smoking-prohibited places, cigarette butt pollution has increased considerably. Enforcement on university campuses isn’t easy; ISU’s Director of Public Safety Jerry Stewart says it’s hard to say whether the 145 written warnings and 40 citations on campus in the law’s first year have had a deterrent effect. Angie Jewett, ISU’s Environmental Health & Safety emergency preparedness coordinator, tells me, “We have 1800 acres that we are expected to police, and in the state of Iowa we have many small towns that are smaller than that. You can imagine what the outcry would be if we had a small town and told them they couldn’t smoke anymore.” On that note, anecdotal evidence seems to suggest that the law has a disproportionate impact on rural Iowa.
For all the complaints voiced about the law, there are those who will step up in its defense. Regardless of the outcome of Froehlich’s court battle, the issue is sure to remain a volatile one for many years to come. But in Ames at least, a lot of business owners and employees seem to be shrugging it off as a minor nuisance. Back at Thumbs, Rodriguez jokes, “We’ve got the same old shitty jokes from the regulars. ‘Hey, you got an ashtray in here?’ And like, ‘Yeah, outside, come on, let’s go.’ And sometimes when I take a break I have to keep the door open or it’s five minutes of self-service in there.” Still, although he comes across as genuinely indifferent to the law in general, he tells me, “But yeah, you’re at a bar. You’re here to drink, and drinking’s already not good for you, so why not let people smoke in bars?”