Pricey fight over ban expected
Backers of a statewide smoking ban say they expect to be outspent by opponents in what’s expected to be a hard-fought campaign after deciding Thursday not to appeal a judge’s ruling. The decision makes the prospect of a November vote more likely.
However, Attorney General Marty Jackley says he and Secretary of State Chris Nelson will meet today to discuss a possible appeal. A decision is likely within a week.
Jackley said the American Cancer Society’s decision not to appeal “is certainly a consideration” as he and Nelson decide the state’s course.
The latest development came Thursday when the American Cancer Society decided not to appeal Circuit Court Judge Kathleen Trandahl’s ruling that opponents of the smoking ban passed by the Legislature and signed into law in March had secured enough valid petition signatures to allow voters to decide the matter next November.
If, as Don Rose suggests, the state follows the cancer society’s lead and decides not to appeal, the 2010 referendum will follow. Opponents of the ban such as Rose say this is what they’ve wanted all along. Rose owns Shenanigan’s Pub, is a district director of the Licensed Beverage Dealers of South Dakota and was a key organizer of the referendum petition drive that ended up before Trandahl after the Cancer Society challenged the validity of thousands of signatures.
“A vote of the people is what they should have done in the first place,” Rose said.
“Our deal was we always wanted to be able to let the people vote,” added Mark O’Neill, president of the Licensed Beverage Dealers of South Dakota.
The Deadwood Gaming Association is another member of the coalition opposing the smoking ban. Ken Gienger is president of the group and general manager of Deadwood’s Celebrity Hotel.
“When we talk to customers, they say that’s all they wanted, a chance to vote on this issue,” Gienger said.
Mike Trucano, a Deadwood business owner who in 1988 helped lead the successful referendum that allowed gaming in Deadwood, also is a smoking ban referendum organizer. He said “win lose or draw, this is America. There is nothing more sacred than the right to vote on an issue. I think it is wise of the Cancer Society to not go forward. I’m a little disappointed in them taking the steps they’ve taken until now.”
The Cancer Society decided against an appeal to focus on winning a ballot measure, according to Jennifer Stalley, the society’s government relations director.
“We didn’t enter into the lawsuit lightly. We didn’t enter into the decision not to appeal lightly,” she said. “But at the end of the day, the judge has ruled, and we’ll abide by that decision.”
Personal liberty
In the Silver Moon bar, where the texture and tang of cigarette smoke overpowers oxygen in the air, the prospect of smoking being banned is difficult to comprehend.
“Ninety percent of people in here smoke. If they can’t smoke, they won’t be back,” said Roger Cash, tending a cigarette over an ash tray.
“If somebody smokes, they should be able to smoke in a public place,” Marlon Hogan says.
The intrusion on personal liberty a smoking ban represents is a bigger issue here than the ongoing legal and political process that is bringing the state closer to the day smoking might not be allowed in bars, restaurants and casinos.
Mark Weets suggests smoking ought to be a property right. He, Cash and Marlon and Tonya Hogan predict places such as their local haunt will lose business if smoking is banned.
“I wouldn’t come to the bars as much,” she said.
Lost bar business will ultimately mean less tax revenue for the state, Cash says.
“Then they’ll raise taxes. I’m tired of it,” he said.
“They’re taking away all our other rights. They might as well take this too,” Tonya Hogan said.
Weets finally does give some consideration to the drawn-out process of deciding the ban’s fate.
“I wish I knew the answer,” he said, absently holding a smoldering cigarette. “I guess it’s good it’s dragging on.
“If the answer is what I think it’s going to be, it’s not the one I want.”
Volatile history
Referendums have a volatile history in South Dakota. Bids to ban video lottery and abortion have bitterly divided the state.
“Our goal is to be civil and understanding. I certainly expect this to be a South Dakota nice-type campaign,” Stalley said. O’Neill agrees.
“I don’t think it’s going to be that galvanized, that emotional,” he said.
Others predict a hotter race.
“Absolutely. Absolutely,” Rose insisted. “People all over are going to try to tell you what’s good and bad.”
Bar and casino owners will be energized even more by economic studies from other states with smoking bans that show bar or casino business dropped 30 percent, he says. Rose predicts that fear will ensure the smoking ban coalition has plenty of money to mount a referendum campaign.
“I’m certainly going to put money into it like the other bars will,” he said. “I know I can’t take a 30 percent hit.”
Stalley expects to be outspent but says the Cancer Society will rely on strong grassroots support from a majority of South Dakotans who want to see smoking banned in public places.
She also suggests the issue will become entangled with gubernatorial and legislative races.
“I think all the candidates are going to be asked to respond to it from their voters,” she said. “The Legislature approved this law, and the people who supported legislators who put this law in place will ask questions of those who didn’t.”
Stalley and smoking ban opponents agree the referendum campaign will not begin until next year.
“We wanted to get over this hurdle first before we discussed the campaign,” Gienger said of the potential appeals. The coalition of smoking ban opponents is not even expected to meet before next year, he says.
“I don’t think South Dakota wants to hear about this issue for the next 12 straight months,” Stalley added.
Rose says it won’t get going until after the legislative session. He’s watching to see whether the Legislature when it meets early next year imposes new taxes on things such as video lottery. That could affect the strategy of a smoking ban referendum campaign, he says.
By Peter Harriman, November 20, 2009
Reach reporter Peter Harriman at 575-3615.
Tags: Tobacco Control
