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Smoking-Ban Rules Reach Beyond Intent of the Law PDF Print E-mail
Commentary/Politics - Guest Commentaries
Wednesday, 20 August 2008 02:11

Marguerite Day Regardless of your opinion on Iowa's smoking ban, some of the temporary administrative rules - such as the distinction between bars and restaurants - go beyond the intent of the law. As the end to the commenting period approaches, the Iowa Department of Public Health (IDPH), which is in charge of making and changing the rules, needs to be more reasonable.

In April, both the House and the Senate approved the Iowa Smokefree Air Act, which prohibits smoking in enclosed areas of places of employment, public places, and certain outdoor locations, such as outdoor seating areas of restaurants and sports arenas, school grounds, and grounds owned by the state. Representatives approved the bill with a 54-45 vote, while the Senate passed it 28-22.

While the Smokefree Air Act can only be changed through legislative action, the law isn't the final word. Every law has sections that need interpretation or explanation, so an assigned agency creates a set of administrative rules laying out how it will be implemented and enforced.

Usually the government follows a procedure of at least 108 days to make administrative rules. But because Governor Chet Culver signed the Smokefree Air Act in April and the law had an effective date of July 1, it was subject to emergency rule-making, said Brent Saron, IDPH community health consultant. Under emergency rule-making, a state agency first creates the rules, and then takes public comment after the law has taken effect. After hearing comments, the department can amend the rules.

IDPH is holding public hearings on the Smokefree Air Act through August 22. A Quad Cities hearing was scheduled for August 20 at 9:30 a.m. in Room 300 of the Kahl Educational Center, 326 West Third Street in Davenport. People may also submit comments through After the public comment period ends on August 22, IDPH will decide if it will change the rules.

Once IDPH adopts the "final" rules, the legislative Administrative Rules Review Committee (ARRC) reviews them. The governor and the legislature have the power to rescind rules, and of course lawmakers can amend the act to clarify their intent.

Both the legislature and IDPH are to blame for the problems implementing the Smokefree Air Act. Legislators didn't make their intent clear enough in the law, and IDPH was too aggressive in how it interpreted the law it was given.

One of the main differences between intent and interpretation is the distinction between bars and restaurants. In the law, legislators prohibit smoking in outdoor seating or serving areas of restaurants, but bars can allow smokers to light up in their patios or outdoor seating areas. Obviously, legislators intended for bars to permit smoking outside.

However, instead of being explicit in their definitions, legislators defined bars as venues where serving food is "incidental" to the consumption of alcohol, but they didn't define "incidental." This ambiguity allowed IDPH in the rules to limit incidental food service to ice, prepackaged snacks (such as chips and candy bars), popcorn, peanuts, and reheated commercially prepared foods (such as frozen pizza). But the department's definition means that bars serving burgers, chicken, or anything requiring a grill are considered restaurants.

The Iowa law was already more strict than the one in Illinois, which permits smoking in almost all outdoor locations, including the outdoor seating areas of bars and restaurants. But the interpretation by IDPH pushed Iowa's rules to the extreme.

Even Iowa lawmakers are saying this interpretation is not what they intended. Before the administrative rules had taken effect, Representative McKinley Bailey, a Webster City Democrat, told the Des Moines Register: "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 [division between bars and restaurants] is an absolute perversion of the legislative intent. Period."

According to a June 11 meeting brief by ARRC, bar owners protested the proposed definition of "incidental food service," stating that food sales are a small portion of business, and that they were assured that bars would be permitted to have smoking outdoors. Although the committee sided with the bar owners, it didn't object to the rule, and IDPH decided to keep the rule as proposed.

The brief said the department told ARRC that defining restaurants based on food sales as a percentage of gross sales - which Illinois and some other states do - is problematic.

The main reason is that states with this rule have a system in place to collect the necessary information, but Iowa doesn't, and it doesn't have the resources to implement one, said Bonnie Mapes, division director of tobacco use, prevention, and control for the Iowa Department of Public Health. Iowa would have to collect financial records from businesses that show the percentage of alcohol sales versus food sales, but not everyone has this information because no state department collects it, she said. Some cities do, but the "cites that do have it are few and far between and they aren't all consistent," she said.

Even though using percentages are problematic, Iowa legislators should have ensured their intent by differentiating between bars and restaurants themselves instead of leaving it up to a state agency.


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