By Jenny Neyman
Jerry Timmons was recently diagnosed with lung cancer. The Fairbanks business owner says he’s never smoked in his life, but worked around smokers through his 20-year career with the Bureau of Land Management in the 1970s and ’80s. He’d like to see younger generations of Alaskans have the freedom to work without being exposed to secondhand smoke.
“My life is severely impacted by secondhand smoke,” he said. “However, with this legislation I truly believe that we can either avoid it or reduce it for many people in the younger workforce that exists now. And in order for them to take a check home, put food on the table, no one should have to work in the secondhand smoke of others.”
Crystal Shonrock, owner of the Forelands Bar in Nikiski, thinks that freedom should lie with business owners to set their own secondhand smoke policies, just like it’s up to individuals whether they smoke, and customers whether they patronize a smoking establishment. She says that her dad lived to 100 and smoked Camels every day.
“So there you go, figure it out. So I just feel it should be up to the bar owners and their patrons to decide what they’re going to do in their establishment, being as how we all pay our taxes and our permits and licenses,” she said.
Where does a smoker’s right end and a bystander’s right begin? Kenai District O Sen. Peter Micciche thinks it’s in workplaces and certain public spaces, and introduced Senate Bill 1 to outlaw smoking in those locations statewide. The bill had its first hearing in the Senate Health and Social Services Committee on Feb. 11.
“There are places in our society where regulation is simply the right thing to do and it’s largely why we are here today,” Micciche said. “As judicial philosopher Zechariah Chaffe said in the Harvard Law Review in 1919, he said, ‘Your right to swing your arm ends just where the other man’s nose begins.’ SSSB1 helps to protect the rights of Alaskans who choose not to smoke.”
Micciche and staff member Chuck Kopp presented a litany of ills attributed to secondhand smoke as justification for the bill, saying that an average of 60 Alaskans die each year from secondhand smoke-related illness and there’s an annual economic loss to Alaskans estimated at over $1 million a year, based on information from the American Cancer Society.
“The reasons are simply to protect the lives of nonsmokers and the liberty to breathe clean air, as well as reduce the staggering health care costs of secondhand exposure to tobacco products. Many of these costs are borne by government and at great expense to taxpayers,” Micciche said. “… This bill does not remove the right of the smoker that chooses to smoke, rather it limits a smoker’s ability to adversely affect the health of Alaska’s nonsmoking employees. In other words, the bill simply asks smokers to take it outside in an effort to protect Alaska employees.”
The bill is an update of a measure that did not pass the Legislature last year. It would prohibit smoking in enclosed public spaces in workplaces statewide, even if privately owned. This would include office buildings, retail stores and shopping centers, restaurants, entertainment and sports venues, locations providing paid child care, educational facilities, heath care facilities, pioneer and veterans homes and common areas of apartments or other shared residential buildings.
It also includes vehicles that are places of employment, such as taxis and commercial trucks, and certain marine vessels, such as shore-based processors tied at dock. On marine vessels with employees out on the water, it would be up to the vessel operator to decide a reasonable distance for how far away a smoker must be before smoking is allowed.
The bill also would regulate smoking in various outdoor settings, such as around schools and in parks, outdoor arena seating areas and within certain distances from air-intake vents and windows of buildings where smoking is prohibited.
The Division of Health and Social Services would be tasked with enforcement and the required educational component of the bill, with the ability to delegate enforcement responsibility to other agencies — such as law enforcement.
According to Micciche, investigation and enforcement would be complaint driven and he said the measure isn’t meant to be heavy handed. Enforcement would be mostly passive, focusing on providing education and technical assistance to help violators come into compliance, according to Jill Lewis, deputy director of the Division of Public Health. However, law enforcement could issue citations for violations, and complaints could be filed in district court. Fines would be $100 for a first violation, $200 for a second violation within 24 months, and $500 for a third and subsequent violations within 24 months.
Current state law already prohibits smoking in public places. And Micciche said that half the population of the state already lives in municipalities that banned smoking in workplaces, similar to what’s being proposed in SB1, including Anchorage, Bethel, Haines, Skagway, Petersburg, Juneau, Barrow, Dillingham, Klawock, Nome, Unalaska and Palmer. SB1 would extend that coverage to the entire state, much of which lies in governmental jurisdictions that lack the health powers to enact such a measure.
“I believe Thomas Jefferson got it right when he said, ‘Legitimate powers of government extend to such acts only as are injurious to others.’ In this case I believe that both the right to breathe smoke-free air and the significant documented public health risks of secondhand smoke compel us to view the protection of Alaska’s labor force and their families as an important governmental responsibility,” Micciche said, equating the regulation of secondhand smoke to speed limits, seat-belt laws, electrical codes and other governmental measures meant to protect the public.
The bill seeks to prohibit the use of e-cigarettes in workplaces, as well. Manufacturers and marketers present the products as a safer alternative to cigarettes for delivering nicotine. Dr. Jay Butler, chief medical officer with HSS, conceded that research is lacking, but said that he thinks the state should take, essentially, a better-safe-than-sorry approach.
“I think there’s a great deal of uncertainty right now. I think there’s reasons to be concerned about e-cigarettes and many reasons not to assume they are safe. My own opinion is that until more data are available they should be addressed in same manner as cigarettes,” he said.
When asked by a senator if the measure would relate to smoking marijuana, as well, Butler said he thinks it should.
“So we’re not in a situation where marijuana smoking is legal but tobacco smoking is not, which I think then creates a lot of complications for enforcement in terms of sorting out, ‘So, what is it that you’re smoking?’” he said.
Fifty-five people signed up to give testimony on the bill, though the committee’s time limit meant only some were able to do so. Among them, Jackson Blackwell and Megan Silta, students at Soldotna High School, spoke in support of the bill, while Shonrock spoke against it. Micciche said that more than 800 businesses and organizations and many hundreds of individuals have signed on in support of the bill between last year’s version and the current bill.
Testimony was given in opposition, as well.
“A just government does not or should not have the authority to ban smoking on private property or to tell smokers to quit or punish them if they do not. Smokers are adults and deserve to have their choices respected by others,” said Carmen Lunde, director of the Kodiak chapter of the Alaska Cabaret, Hotel, Restaurant and Retailers Association. “… We believe and always have these choices should be made by the owners. I as a smoker will miss going into these nonsmoking establishments and they will miss the money I spend, but I simply cannot go out into the freezing cold Alaskan weather to smoke a cigarette. I believe the state’s money and time would be better served if they put their efforts into eradicating the massive illegal drug problems in this state and let the business owners make up their own decisions.”
Kathie Wasserman, with the Alaska Municipal League, questioned the bill’s feasibility.
“There is no way to do law enforcement in at least 115 of our municipalities. I just think, for instance, Pelican, it would be tough to get 50 feet away from a building, a window, a door, or anything else. … I think this is local control. Until the state feels safe to give the municipalities, the small ones, tools to enforce the laws that they have in place now, this seems futile. We don’t even have courts out there. So to call a trooper and say, ‘Excuse me, we just had someone who lit up a cigarette,’ would be totally useless for the small communities. They have no way to deal with this. And also I know Health and Human Services has trouble even reacting to communities that have rampant alcoholism or children’s issues, and to now pile this on top seems a little bit unnecessary,” she said.
Micciche said he welcomes the committee process and more public testimony.
“The bill before you might become a better bill as we go through this long process and we will listen to all your comments,” he said.
No action was taken on the bill Feb. 11. It awaits further discussion by the committee.