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Pre-emptive Strike 

Law barring smoking ban conflicts with new surgeon general's report

Julia Garnett lives in perpetual fear. Every time she leaves her home, she puts her life at risk due to her allergy to smoke. She's been rushed out of grocery stores and airports that claimed to be smoke-free. There aren't many safe places in Charlotte. She likes to grab a drink from time to time, and her choices are limited. Therapy, the swanky martini bar downtown is smoke-free, but it's only safe for Garnett on weekdays when they keep the inside door closed and smoke from outsiders can't drift in. She's thought about moving to a smoke-free state like California but in the meantime is mainly restricted to the confines of her home like a bubble person.

Julia's case is the extreme, but she's seen secondhand smoke's debilitating effects on others. Two of her heavy-smoking friends had infants pass away from sudden infant death syndrome, a disease in which secondhand smoke, according to the new US surgeon general's report released last week, has been proven to trigger the onset.

Standing in the way of Garnett and others who want smoke-free public places in North Carolina is legislation passed in 1993 known as a preemption law. In the early '90s, tobacco companies' lobbyists forecasting the national trend to ban public smoking began pushing lawmakers to ban the banning of smoking. In North Carolina, House Bill 943 dictates, with only a few exceptions, that a public place choosing to go smoke-free must also permit smoking on at least 20 percent of its space. House bill 943 also ensures no local law, ordinance or rule can contradict it.

In the last couple of years, Mecklenburg County activists and legislators have begun to take a stand. Before the 2005-2006 general assembly session, county commissioners voted six to one in favor of seeking the right to ban smoking in restaurants and other public places. The issue was given priority along with only a few others when the general assembly convened. The bill, which sought to give counties with populations above 650,000 local control over the smoking issue, was eventually stalled to a standstill.

County Commissioner Dumont Clarke says he was surprised by the attitude he received from members of the general assembly. "I went to Raleigh, I met with our delegation, and frankly I was more or less treated by, 'Why are you bringing this difficult issue to us at this time?'" While difficult, Clarke says passing exemptions to laws isn't out of the legislative norm. Clarke believes the surgeon general's strong warning against secondhand smoke exposure in the report released last week, will help support the effort.

The report, entitled The Health Consequences of Involuntary Exposure to Tobacco Smoke, quantifies what many suspected to be true. Secondhand smoke was shown to be developmentally damaging to children and harmful to adult's reproductive and respiratory systems. Continual exposure to secondhand smoke increases the chance of heart disease by 25 to 30 percent and lung cancer by 20 to 30 percent -- even infrequent exposure increases the risk of getting one of those life-threatening diseases.

The report did contain some positive news. The level of cotinine, a biological marker for second-hand smoke exposure in nonsmokers, dropped by 70 percent between 1991 and 2002. US Surgeon General Richard Carmona believes this decrease can be attributed to increased public health awareness and the proliferation of counties and states going smoke-free.

New Smokefree Mecklenburg chairman Dr. Michael Sloan has experience in the political arena for this issue. Sloan spearheaded the smoke-free efforts in Chicago. After three years of considered efforts, Sloan and others achieved a citywide ban on public smoking in late 2005. Politics in Chicago have a reputation for being fierce, Sloan says, but obdurate council members aren't as great of a challenge as the preemption law.

"We should be given the right to make the decision for ourselves. All we want is that right," Sloan says of the preemption law. "Do we really want to allow politicians to tell us we can't act for the health of ourselves or our loved ones?"

Currently 20 to 30 percent of Charlotte's bars and restaurants are smoke-free by choice, a number that Mecklenburg County's Tobacco Control Coordinator Kate Uslan says is low for a major city. A survey conducted by Smokefree Mecklenburg found 71 percent of Charlotte residents would prefer restaurants to ban smoking.

Many restaurant and bar owners believe having separate non-smoking areas in their establishments is the compromise solution. But just because you can't see the smoke doesn't mean it isn't harming you. A study in the new surgeon general's report measured high levels of carcinogens in the bodies of restaurant patrons sitting in non-smoking sections of restaurants. Air filtering devices once thought to be a solution have been found to be largely ineffectual as well.

Printed in snazzy font across the door of the martini lounge Therapy, are the words "smoke free environment." "I don't think a busy night goes by that someone doesn't come up to me and say, 'Thank you. We love the fact that you don't allow smoking,'" says owner Tim Low, who believes much of his success is due to Therapy's unique smoke-free policy

Chris Brown, part owner of the Visulite, is against any ordinance that would prohibit smoking. Brown says business at the bar suffers on nights when artists request no-smoking shows. "On our non-smoking nights, people go outside to smoke so they're not sitting around the bar buying drinks, buying whatever. If it's a real busy show, we can have over 100 people outside who've paid 20 dollars to see a band and they're outside most of the night because they're smoking."

Clarke, Sloan and other activists understand the importance of breaking the myth that a smoking ban would harm food and drink sales. A report conducted in 2003 by Cornell's Hotel and Restaurant Administration Quarterly found food and drink sales either stayed the same or increased after New York banned smoking. Studies in California, Massachusetts, Texas and Arizona have published similar results. Brown acknowledges that the long-term results of a citywide ban might not be a decline in sales after patrons adjusted to the new rules.

Sloan says the process to get the exemption in Mecklenburg County will involve grass-roots efforts as well as targeting the bigwigs. "What's the most important thing? Votes. What you need is people who will be champions for your cause. Then you need to find other supporters. Then you have to find a way to work through the process to fruition. We think with widespread decimation of this information and already knowing that many in the population support the idea, and that it's happening elsewhere, it's just a matter of being persistent."

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