Monday, May 23, 2005

The Ultimate Unlevel Playing Field: Florida Legislature Approves Smoking Ban Exemption for One Restaurant

The Florida legislature has passed a bill that expands the exemption of certain restaurants from the statewide restaurant smoking ban that was approved by Florida voters in 2002. That statewide initiative bans smoking in restaurants, but excludes stand-alone bars, which are defined as establishments that derive no more than 10% of their revenues from the sale of food. Senate Bill 1348, passed by the legislature on May 5, expands this exemption to certain establishments that derive up to 20% of their revenues from the sale of food.

The Rest of the Story

What are the "certain establishments" that the bill allows to derive up to 20% of their revenues from the sale of food and still be exempt from the smoking ban? The answer is quite simple: establishments that are listed on the National Register of Historic Places, and which had applied to be on this register no later than 90 days following the effective date of the legislation.

Why this seemingly crazy legislation? The answer is apparently quite simple: to provide an exemption from the smoking ban for a single establishment - Sloppy Joe's of Key West - a restaurant/bar in a historic district which derives 17% of its revenues from the sale of food and is thus subject to the current smoking ban - but which, lo and behold, has just applied to be listed on the National Register of Historic Places!

While I have argued previously that from a public health perspective, it is important to promote a level playing field such that workers at all establishments are treated equally in terms of health protection, this is far beyond even the unlevel playing field that I had envisioned. The idea of a state legislature, which is entrusted with protecting the health and welfare of the entire citizenry of the state, enacting a measure to exempt a single establishment from a statewide public health law is not only irresponsible but absurd.

The measure awaits Governor Jeb Bush's signature or veto. There are some indications that he may veto the bill, as he apparently indicated that he finds the exemption for a single restaurant to be inappropriate. And the legislature is unlikely to override any veto, since the House only approved the bill by a 60-50 vote. However, the damage has already been done. The bill sends a message to bars and restaurants throughout the state that the legislature is ready and willing to provide exemptions, so long as you have the right contacts and the right political clout.

While this story will likely simply go down as a crazy anecdote in legislative history, it should send an important message to public health advocates. We must make it clear that health protections are to be applied to all employees and all establishments equally. We must not, ourselves, be in the business of promoting exemptions for certain types of facilities. Doing so sets a terrible example that legislators are sure to pick up on. What is needed and appropriate is a level playing field that provides adequate health protection for all workers.

This story underscores the folly of Georgia health groups' decision to support the recently enacted legislation that exempts adult-only restaurants from the state's clean indoor air law and which allows an additional exemption for separately ventilated smoking rooms in restaurants. That decision is going to backfire in the long run. For I'm afraid it sets an example that other states will follow. It sends a message that public health advocates are fine with the idea of setting an unlevel playing field that exempts certain establishments. As long as you're on the long end of the stick in this political game, your restaurant can end up allowing smoking. Health regulation becomes a political game, rather than a matter of principle.

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