Blowing smoke at the ban

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Editor’s note: On the eve of effective date of the Colorado Clean Indoor Air Act, otherwise known as the smoking ban, the Business Journal tried to trace the process by which the act became law. Specifically, CSBJ tried to find out just how state casinos managed to win an exemption from the law, and which legislators supported the exemption.
What we found was a baffling hall of mirrors, where nothing is as it seems, few legislators who were willing to talk on the record and a labyrinth of powerful lobbyists working quietly to bend lawmakers to their will.

In 2005, the Colorado Senate killed a proposed smoking ban by two votes on the last day of the legislative session. Supporters vowed that they’d reintroduce the legislation — and at the beginning of the 2006 session, HB1175, The Colorado Clean Indoor Air Act, was introduced.
Sponsored by two powerful legislators — Republican Mike May in the House and Democrat Dan Grossman in the Senate — the bill enjoyed substantial bipartisan support, reflecting statewide polls.
Supporters of the bill, citing numerous studies that, they claimed, showed the dangers of second-hand smoke to non-smokers, asserted that the state had a duty to forbid indoor smoking in public places. The fundamental task of state government is to protect the health, safety and welfare of its citizens — so, given the inherent risks of indoor smoking, the ban seemed to be a reasonable and proper use of the state’s police power.
Opponents disagreed, citing a variety of reasons.
Some argued that ban would infringe upon individual liberties. If smoking is legal, so goes the argument, business owners and/or property owners have the right to permit it within their premises.
If you, as a customer, don’t want to be in place where others smoke, you can simply choose to take your business elsewhere. After all, it’s free country — isn’t it?
Others opposed the ban on practical grounds, arguing that the legislation would devastate small businesses, particularly bars and taverns.
But before the bill had even been assigned to committee, a loose coalition of legislators and lobbyists came together to oppose it. Lobbyists for bars and taverns, for casinos and for the tobacco industry began to work quietly behind the scenes to kill the legislation.
It wouldn’t be easy. Most polls showed that a comprehensive ban on indoor smoking would be supported by more than 60 percent of the electorate. Moreover, 2006 is an election year, and a vote against the ban could be risky for legislators in swing districts.
Somewhere along the way, the casino interests changed sides and offered to support a bill that provided them with an exemption.
As the bill wound its way through the legislature, debate was spirited — even nasty, particularly when exemptions were proposed.
Sen. Jim Dyer, R-Centennial, said the exclusion of casinos made the bill — aimed at protecting the health of service industry workers — “pure hypocrisy.”
“We’re going to tell hundreds of small businesses, bars and taverns, VFW’s that your clientele can’t make the decision to smoke and you don’t have the legal right to allow them to smoke but you can go to a casino and smoke your head off because they probably have better lobbyists and they’ve got more pull down here,” Dyer said.
He wasn’t the only legislator to question favoring casino over other groups.
“People go to bingo halls to gamble, just like they go to casinos and racetracks,” said Sen. Lois Tochtrop, D-Thornton, who sought to exempt bingo halls. “Bingos also are run by nonprofits to support worthwhile projects around the community.”
But the bill’s sponsor disagreed, arguing that families and children are put at risk inside poorly ventilated bingo halls.
The Denver Post reported the following exchange between Grossman and Dyer:
“Make no mistake about it, this is not clean money,” said Dan Grossman. “This is money that’s stained with the sweat of the pathetic souls who have not been able to kick the nicotine habit.”
Grossman accused Sen. Jim Dyer, R-Centennial, of flip-flopping on his vote to help kill the bill.
Dyer shot back that Grossman had only himself to blame for his bill’s free fall. He said when Grossman agreed to an initial deal to exempt casinos and cigar bars and smoking lounges at Denver International Airport, he opened the door for the myriad exemptions that followed.
But after all the angry bloviating, the bill eventually became law.
Introduced in the House in January, it was sent to the Senate with a single significant exemption: casinos.
The Senate process was identical, except that further exemptions were approved. These were stripped away in conference, leaving the bill as written. Since both the House and Senate had approved the casino exemption, it was not even discussed in conference.
On March 27, Gov. Bill Owens signed the law, which became effective July 1.
Stunned, the bill’s opponents mobilized to fight the law. Their wrath was directed less at the legislators who had voted for the law than at their supposed allies, the casinos.
Joe Becker is a lawyer for the Mountain States Legal Foundation, which represents bar and tavern owners seeking to overturn the law on the grounds that, by capriciously exempting casinos, it denies other businesses/individuals equal protection of the law.
“Apparently it’s not enough that casinos have a state-granted monopoly on gambling — now they have a state-granted monopoly on smoking as well,” he said.
Stephanie Steinberg of Smoke-Free Gaming of Colorado was equally furious. Having testified before the Senate that casino workers often get sick from secondhand smoke – “the casino crud,” she calls it — she couldn’t understand why legislators sided with the gaming industry.
“[Their arguments] are absolute pure speculation, but everything we say is backed on evidence,” she said. “They’d say that their business would drop 20 percent, but they never gave any evidence. There was no data. The legislators just succumbed to their statements.”
But the truth may be a lot simpler. According to House sponsor Mike May, the casino industry simply outmaneuvered and outsmarted everyone else.
“Well, they knew that New Jersey had voted a ban with a casino exemption — and they knew the courts had upheld the exemption,” he said. “And they knew that if no ban passed, the supporters might run an initiative without any exemptions — and the voters would probably pass it. So they made their arguments for a singular exemption.”
Lobbyists for the casinos asserted that if gamblers are forced to leave the gaming floor to smoke, they have to stop gaming — they can’t take their slot machines with them.
Inevitably, revenue will decline because customers will spend less time gambling. That’s bad, not just for the casino business, but for Colorado as well. Casino gambling was instituted by a vote of the people, and tax revenue from casino gambling was allocated to specific purposes by that same vote.
To pass legislation which would reduce that revenue flow would contravene the clearly expressed will of the voters.
“Pretty early on, the casino folks realized that the bill might pass without any exemptions, although it’d be close,” May said. “So they started to work legislators to pass it — with a casino exemption.”
In Colorado, casino operators have not been major contributors to legislators, since the legislature has little power to alter the voter-approved constitutional amendment which legalized gambling in Cripple Creek, Blackhawk and Central City in 1990.
But the political power of the industry was evident when, in 2003, Colorado casino operators spent more than $5 million to fight an initiative that would have expanded gambling to five racetracks in Colorado, including one in Colorado Springs.
The initiative was defeated overwhelmingly.
As one lobbyist, who refused to speak on the record, said:
“Nobody wants to get in a fight with the casinos — they’re tough, they’re smart, they have a ton of money — so why bother? May and Grossman knew that the casinos could take the ban down, so they went along with the amendment. They were smart. They gave up those crappy little towns, and got the whole state. Nobody cares about the gamblers anyway.”
So which legislators helped the casinos? That’s not an easy question to answer.
Despite recorded votes at every step of the process, the motives of many lawmakers are unclear. Some voted for the casino exemption because, they claimed at the time, they doubted whether a bill without exemptions could pass.
In recorded committee votes, some members who supported the casino exemption subsequently voted against the amended bill, while others did the opposite. Not surprisingly, no legislator admitted to being influenced by the position of the casino industry.
In the final tally, the House voted to approve the bill as amended by a margin of 41-24, with 16 Republicans and eight Democrats in opposition. In the Senate, it passed 21-14, with 14 Republicans in opposition, and 3 others joining all 18 Democrats in support of the bill.
In the El Paso County delegation, only Reps. Mike Merrifield and Mark Cloer supported the ban.
As one of the legislative champions of the original bill remarked, “I guess it came down to some nasty special interest maneuvering — but at least it was bipartisan special interest maneuvering.”
John.Hazlehurst@csbj.com