Whibley was frustrated as four council members had changed their minds four months after voting the initial passage of the ordinance, comparing it to the failure of the General Assembly to pass smoking restrictions that Virginians overwhelmingly supported: “We dropped the ball like they did.”Soon afterwards, Lorene Alba of the ALA, Hilton Oliver of Virginia GASP, and Katie Pepe of ACS went on the record to question the Council’s reasoning. Hilton Oliver pointed out the fallacy of one of the main rationales in reversing the ordinance, that it would harm business, saying “[f]or every Norfolk resident who goes to a Virginia Beach restaurant to smoke, you’ll get four or five people from Virginia Beach.”After rescinding the ordinance, Norfolk did not consider a local smoking proposal again in light of the pending statewide law. The reversal of the Norfolk city council has parallels with tobacco industry efforts in other states, notably in California. In the late 1980s and early 1990s, several California localities attempted to enact local smoking restrictions. In 1990, the Los Angeles city council considered a total smoking prohibition in all restaurants in the city, a proposal which had been developed internally without prompting by tobacco control groups . The tobacco industry mobilized restaurateurs and smokers rights groups to oppose the legislation, and were successful because the voluntary health organizations were inactive on the issue.Because of a lack of sustained activity by health groups, the ordinance was defeated by the tobacco industry.In contrast, 1990 smoking restrictions in the city and county of Sacramento both succeeded despite significant industry opposition due to the concerted efforts of the ALA, which worked closely with city council members to educate them about the scientific harms of secondhand smoke.While the role of the tobacco industry in influencing the city council in Norfolk was unclear,vertical farm systems the health groups did not take any significant action to counter the claims of harm to restaurants that apparently influenced the council.
While VFHF provided technical support testimony at Norfolk City Council hearings in support of Whibley’s proposal, VFHF felt that Norfolk was hamstrung by the Attorney General’s opinion that Norfolk could not restrict smoking on their own.Cathleen Grzesiek, interviewed in 2010, felt that challenging the Attorney General’s opinion would require a costly lawsuit that VFHF could not afford.Despite the important precedential value of the Norfolk ordinance, VFHF chose to focus instead on state level smoking restrictions. With funding to properly support Norfolk’s innovative strategy by challenging the Attorney General’s opinion in court, public health advocates in Virginia could create a precedent for local action. During the discussions among the Norfolk city council concerning their proposed ordinance, Norfolk became part of an attempt to unite the surrounding Hampton Roads region in pushing for restaurant smoking restrictions. The discussions were headed by two council members, Barclay Winn from Norfolk and Rosemary Wilson from Virginia Beach. The proposal would have brought a unified block of around one million Hampton Roads constituents to bear on the General Assembly.The discussions included the cities of Norfolk, Virginia Beach, Portsmouth, and Chesapeake.All of the Hampton Roads cities except Norfolk determined that in order to introduce stronger restaurant smoking restrictions, they would have to ask the General Assembly to enact a law granting them the power to do so. After Norfolk’s efforts to enact their own separate ordinance fell apart in 2008 all of the cities agreed that asking for permission from the General Assembly was the correct approach. This push led several legislators to introduce bills sought to grant localities the ability to exceed statewide smoking restrictions in restaurants. Despite the regional effort in Hampton Roads, most of the bills did not specifically apply to one region, and would grant preemption restrictions to most or all localities in Virginia . None of the bills survived. There were some important changes in Virginia’s political climate in 2009 that increased the chances that health advocates would be able to enact legislation that year.This election coincided with a rise in Democratic influence in Virginia – Gov. Tim Kaine was elected in 2006 and Virginia supported Democratic Presidential candidate Barack Obama, the first time a Democratic presidential candidate had taken Virginia since 1964. Democrats were gaining influence, especially in suburban Northern Virginia.
Finally, House Speaker William Howell felt that his seat in his Fredericksburg district was vulnerable because it was becoming less conservative. Some House Republicans, most of all Howell, felt that they needed to project a different image. It is likely that this was a significant source of pressure upon Howell, and coupled with the VFHF campaign discussed below, caused him to shift his position on tobacco control legislation. In addition, the party in power after the election would be able to control redistricting in their chamber. Because the Democrats controlled the Senate, it was a political imperative for Republicans in the House to retain control.210 In addition, during the 2009 session some important changes were made to the composition of the House General Laws committee, namely that Del. Chris Jones replaced Terrie Suit who had retired, as the chairperson of the committee. The VFHF coalition, who had been repeatedly disappointed by the HGL’s consistent propensity to kill tobacco control legislation, felt hopeful that Jones would influence the committee to approach such legislation in a different light.Jones had openly supported clean indoor air legislation and also had stated his desire that clean indoor air bills be heard in the full committee.Prior to beginning the 2009 legislative session, VFHF decided to target Speaker Howell’s Fredericksburg district with pressure from their grassroots elements to force him to stop assigning legislation to the hostile ABC/Gaming subcommittee of the House General Laws Committee and allow it such bills to be heard in the full committee.They intended to capitalize on Howell’s vulnerability before the 2009 elections in a district that was becoming less conservative. VFHF hired a district organizer, Adam Bray, whose background was in community organizing around worker justice issues, to identify and mobilize constituents in and around the Fredericksburg district with phone banking and grassroots action. During the American Cancer Society’s Great American Smoke out in November 2008, Bray and VFHF took out a large ad in the Fredericksburg Free Lance–Star urging readers to call Howell and ask him to “make Virginia smoke free” . The campaign was successful in pressuring Howell, who reportedly referenced Bray’s campaign in a legislative caucus,industrial rack systems saying something to the effect of, “[if] they’re going to do this to me, what else could they do?”Howell sought out Gov. Kaine and they ultimately agreed in principle to a “compromise” restaurant smoking bill that allowed for smoking rooms and ventilation. Howell changed his position on clean indoor air bills directly because of the Fredericksburg grassroots campaign. Had VFHF been able to implement this tactic on a larger scale, it might have lead to a stronger restaurant smoking bill. VFHF was unable to do this because in 2009 they could only afford to hire a single district organizer;using their limited funds, they targeted the legislator who would have the greatest impact for the money spent.
Despite the antipathy of the Virginia Restaurant Association , many restaurant owners supported the idea of comprehensive clean indoor air legislation covering restaurants. The largest restaurant organization to start supporting restaurant smoking restrictions was the Virginia Beach Restaurant Association . One of the more active restaurateurs in Virginia supporting restaurant smoking restrictions was Matt Falvey, a Virginia Beach restaurant and owner of several restaurants including Hot Tuna and Shore break and former president of the VBRA. Falvey had made his three restaurants smoke free in 2007. In a 2009 interview, Falvey explained that he supported smoking restrictions in restaurants for several reasons. First, it was a public relations move; noting vocal public support for restaurant smoking restrictions, Falvey felt it would help VBRA members to support rather than oppose further restrictions.He also was unhappy that workers in some workplaces in Virginia were protected from secondhand smoke and that restaurant and bar workers were not. He felt that voluntary restaurant smoking restrictions were ineffective. In addition, Falvey knew that restaurant associations generally resisted any additional regulation and that libertarian attitudes about individual business rights were prevalent among Virginia restaurateurs. Without guidance from a group like the VBRA, Falvey felt that restaurateurs would have a “knee-jerk reaction” and fight further regulation of smoking in restaurants.As a member of VHTA, Falvey’s advocacy for smoke-free restaurants led the VHTA to stop opposing clean indoor air legislation for one year, during the 2003 session. After VHTA returned to active opposition in 2005, Falvey and other VHTA members resigned and took their concerns to the VBRA.236 The VBRA embraced the tobacco control position and approached Sen. Bell to support SB 1161.Bell put the VBRA members in touch with the VFHF, and the VBRA joined the VFHF coalition in 2007.Falvey lobbied for VBRA members to support VFHF efforts by arguing that, despite the traditional opposition of restaurateurs to any government regulation, that smoking was “the one area that is a major health concern that [the government] had chosen not to regulate us,” which was unfair to restaurant workers and patrons.Falvey also argued that restaurants did not share a common interest in fighting this particular regulation with the tobacco industry, because the tobacco industry was using restaurants to be “the face of anti-tobacco legislation. They’re kind of standing back.”Falvey also had some early contact with VFHF, but particularly with Keenan Caldwell, the ACS co-chair of VFHF, who worked with Falvey and others. However, Falvey was more supportive of local incremental progress than were the voluntary health organization advocates, which was a source of disagreement.HB 1703 was offered by Del. John Cosgrove on January 14, 2009 and was similar to a bill he had filed in 2007. Instead of the VICAA requirement of reasonable smoking in government owned or operated buildings, smoking was prohibited. Restaurants with 50 more seats constructed prior to July 1, 2010, were still required to have a no-smoking area “sufficient to meet customer demand.” Restaurants constructed after July 1, 2010, would be required to confine smoking to a structurally separate, ventilated smoking room. Additionally, there was a provision that required employee consent before a worker would be required to work in a smoking area. HB 1703 was not a strong tobacco control bill. The employees and patrons of all restaurants existing before July 1, 2010, were not protected. Restaurants built after that date would allow smoking in ventilated smoking rooms, an ineffective protection against the harms of secondhand smoke.The bill would have done little to protect the health of Virginians. Cosgrove had been traditionally hostile to tobacco control legislation, but credited his choice to sponsor HB 1703 to constituent pressure, pointing to VFHF-sponsored polling data that showed a large margin of support for such legislation.270 Introducing a bill like HB 1703 that gives the appearance of strengthening tobacco control laws while providing little substance is a standard tobacco industry tactic to undermine effective smoking restrictions. HB 2483 was introduced by Del. Albert Eisenberg as a “minors provision” law. Eisenberg’s bill would allow smoking in any restaurant or bar that posted signs that prohibited minors, with up to a $250 fine for violation by the proprietor. However, the proprietor was given affirmative defenses, preventing liability if the proprietor had asked the minor to leave the establishment. The bill also did not prevent minors from being in outdoor areas of restaurants or bars that allowed smoking. SB 1382 introduced by Sen. Kenneth Stolle was also a “minors provision” bill. The bill prohibited smoking in restaurants, except those that only allowed entry to persons 18 years of age or older. It allowed any bar, or bar area of a restaurant, to allow smoking. All restaurants built after July 1, 2009, could only allow smoking in designated smoking rooms. If any restaurant allowed smoking, they were required to have a no-smoking area of an unspecified size. The fine schedule for violations was similar to HB 2483, and proprietors were allowed an affirmative defense to violation if the proprietor had asked the violator to move from the prohibited area and posted signs stating “No Smoking” and minors were prohibited in designated smoking rooms. This “minors provision” language was a variation of the standard industry “red light, green light” tactic.