The concerted attack on LB 648 at the hearing had the tobacco industry’s desired effect. As Oliverio relates in his letter to fellow Tobacco Institute executives three days after the hearing, “The day following that hearing the Committee met in executive session and voted 5 to 1 not to report the bill out of committee. Significantly, the only senator on the Public Health and Welfare Committee to vote in favor of reporting the bill out of committee was not present at the hearing on the previous day.”The success of the tobacco industry against LB 648 may have led them to become overconfident in their attitude towards future legislative attempts at clean indoor air laws in Nebraska. As Oliverio wrote to senior executives throughout the tobacco industry, “LB 648 is dead for this year and because of the overwhelming vote against it we are hopeful that it will not be reintroduced next year.”The head of the Public Health and Welfare Committee apparently did nothing to dissuade this opinion. Richard Safley, the Field Sales Manager for Lorillard Tobacco stated in a letter sent on October 24, 1978, to Art Stevens, a member of the Legal Department at Lorillard, “The opinion expressed by the Committee Leader was that unless stimulated by anti-[smoking] group movements, the bill probably would not be introduced at the next session.”This would not be the case; at the next session, Senator Stoney would sponsor LB 344, which was passed as the Nebraska Clean Indoor Air Act.While the tobacco industry was still concerned about LB 344 because of the strength of the bill, this legal decision by the attorney general only increased the tobacco industry’s confidence that the bill would be defeated. In a memo dated May 11, 1979 from J. Kendrick Wells, a lawyer for Brown & Williamson, to numerous executives within his company, Wells points out that LB 344 would have a broader reach than legislation that was pending in New York, Connecticut and Massachusetts. He goes on to say, “Important Nebraska allies joined the tobacco industry’s opposition to the bill during the week of May 7 and,pruning marijuana although the nose count is close, we do not expect the passage of the Nebraska bill.”
Although it is not clear if Wells meant the Attorney General when he referred to new allies, his memo indicated that the tobacco industry still thought LB 344 would be defeated. Not to be outdone, Senator Stoney asked the Judiciary Committee Staff to review the constitutionality of the bill. On May 14, the Judiciary Committee Staff disagreed with the finding of the Attorney General that Section 10 and 11 were constitutionally suspect and commented, “There is . . . convincing case law to the contrary which would indicate that the language of LB 344, uses language which would meet constitutional guidelines.”In the same memo, the Judiciary Committee Staff cited court cases from four other states and one case from Nebraska which they believed supported their claim that LB 344 did not violate the Nebraska Constitution by improperly granting legislative authority to the Department of Health. The day after the Judiciary Committee Staff issued their opinion, LB 344 was passed by a vote of 30-18-1.While the Attorney General stated that the language of LB 344 was constitutionally suspect because the bill was too vague and thus granted legislative authority to the Department of Health, this did not prevent its passage by the Legislature. However, this was an argument that would be used later to weaken the rules and regulations that were adopted by Department of Health. After losing in the Legislature, the tobacco industry set their sights on convincing Governor Charles Thone to veto the bill. Once again, the services of the law firm of Crosby, Guenzel, Davis, Kessner & Kuester were utilized to write a four page letter on behalf of the Tobacco Institute that was to be hand delivered to the governor.It was also blind carbon-copied to the Tobacco Institute’s Raymond Oliverio. Since Oliverio was directly involved with the effort to get LB 344 vetoed, it is not surprising that the arguments in the letter correspond to talking points drafted by Oliverio early on in the campaign against LB 344. For example, the fifth paragraph of the letter from the Lincoln law firm states, “Although the possibility of enforcing such an unrealistic extension of governmental regulation is virtually nonexistent, such an analysis clearly shows the unprecedented reach of the government of the State of Nebraska into the private lives of its citizens.”
This argument refers to two of the four talking points that Oliverio said would play well in Nebraska, specifically, “There is no estimate of the cost involved to implement LB 344,” and “This is a further example of government intrusion into the private sector.”Another talking point was used when the letter claims, “For many years activist anti-smoking groups have asserted that non-smokers are harmed by smokers. Such an assertion has never been supported by credible evidence.”This tactic of attacking science that shows.As required by LB 344, the next step to putting Nebraska’s new law into effect was for the Department of Health to develop the regulations that would actually detail how businesses were to comply with the law. For example, LB 344 required the posting of signs and the arrangement of seating to limit the amount of smoke to which individuals in the nonsmoking section were exposed, but the law did not specify where signs were to be posted or what constituted an acceptable seating arrangement.After being signed into law, the task of developing such rules and regulations fell to the Department of Health. Initially, the Department of Health decided to utilize the rules and regulations that were adopted in Minnesota for their clean indoor air law.Since the Nebraska Clean Indoor Air Act had been modeled on its Minnesota counterpart and the rules and regulations developed for Minnesota Clean Indoor Air Act had been implemented with little controversy,it was reasonable for the Department of Health to use the Minnesota regulations as a template. It was at the Department of Health’s first public hearing that the tobacco industry’s strategy became clear. The Nebraska Restaurant Association and the Nebraska Licensed Beverage Association mobilized to fight against the effectiveness of the new law.At the first hearing, the contested issue was what constituted an “acceptable smoke-free area.” In the first draft, the Department of Health modeled their rules and regulations on Minnesota’s so that nonsmoking areas were to be separated from smoking areas by at least a 56 in high barrier or a 4 ft wide space. This requirement was supported by Senator Stoney and the Nebraska chapters of the American Lung Association and the American Cancer Society.The Nebraska Restaurant Association, the Nebraska Licensed Beverage Association, and other business groups’ idea of a nonsmoking area was an area where signs were posted designating it as such or an area that was mechanically ventilated.They argued that requiring restaurants and bars to create a physical barrier using a 56 in high barrier or a 4 ft wide space would be prohibitively expensive.
This argument ignored the fact that the 4 ft wide space could still contain tables where patrons could be served, but the buffer area would not be considered part of the acceptable smoke-free area and individuals seated within this section could not smoke. Echoing the Attorney General’s decision,trimming weed plants these tobacco industry allies told officials from the Department of Health that requiring physical barriers exceeded their authority.At the first hearing on July 24, 1979, the opposition to the physical barrier requirement was so vehement that the Department of Health removed it from their second draft.At the second public hearing in August, it was the tobacco control advocates’ turn to attack the rules and regulations. Presented with the second draft which did not contain the physical barrier requirement, Senator Stoney and the health groups protested. At the hearing, Stoney said a “well-organized and handsomely paid” group of opponents were trying to “destroy the intent” of his bill by watering down its provisions.Alan Wass, Director of the American Lung Association of Nebraska, commented on the new draft saying, “The NebraskaClean Indoor Air Act would be emasculated by this second draft.”He also stated his opposition to the ventilation provision because he said that ventilation does not address the issue of the health effects of carbon monoxide present in secondhand smoke that would not be removed by ventilation.Achieving smoke free state facilities in Nebraska was not a short process. One of the first steps occurred in 1993 when several state senators sought to prohibit smoking in the legislative chamber of the State Capitol Building. This effort was headed by Senator C.N. “Bud” Robinson who had the lung and kidney ailment called Wegener’s disease.Robinson and several others surveyed the senators to see if they would support a rules change to accomplish this goal.One of the senators that was highly supportive of such an action was Don Preister who was a first-year senator in 1993. Preister had been a victim of carbon monoxide poisoning and was sensitive to secondhand smoke.Throughout the years, he would be a key proponent of smoke free state facilities. Robinson and Preister were successful in garnering wide support for making the Legislative Chamber smoke free and over 30 senators sponsored the rules change which passed by a vote of 40-1. While these actions were proceeding in the Legislature, the student government of the University of Nebraska – Lincoln , following a trend for universities around the country, formally urged the administration to make university buildings smoke free; however, the student body president stated the resolution did include dormitory rooms.At the time, UNL’s smoking policy limited smoking to designated areas in dormitories and building lounge and private offices that contained a filtering device.After some consideration and consultation with the student government and school officials, Chancellor Graham Spanier announced that smoking and smokeless tobacco would be prohibited in all university buildings and vehicles.Of particular note was the fact that Spanier’s initial plan was to include Memorial Stadium, home field for the Nebraska Cornhuskers. After receiving some complaints from smokers about including Memorial, Spanier weakened the changes so that smoking would be permitted in designated areas that were inside the stadium but were not near seating areas.In 1994, Senators Preister and Robinson again sought to strengthen smoking restrictions regarding state facilities. They sponsored LB 1064 which would have made virtually all state buildings and vehicles smoke free.The bill included any buildings or vehicles that were owned, leased or occupied by the state.Preister told reporters that his main reason for sponsoring this legislation centered on children. He said, “I am particularly concerned about children who come to the Capitol to view the Legislature. They pass through the Rotunda, which on a given day is filled with smoke.”Preister said that he was also concerned about the example that this set for these schoolchildren and about the damage cause to the Capitol and its artwork by the smoke. Despite the efforts of Senator Preister and Senator Robinson, LB 1064 was not successful. The next year, in 1995, Senator Preister introduced another bill that was very similar to LB 1064. Designated LB 121, it prohibited smoking within 50 feet of the entrance to a state building in addition to making most state buildings and vehicles smoke free.University residence halls, veterans’ homes, state prisons and overnight facilities at state parks were exempted. At its hearing before the Health and Human Services Committee, LB 121 was supported by the American Lung Association. It was opposed by Bill Peters, a lobbyist for the Tobacco Institute, who cited the tobacco industry’s claim that accommodation is the proper stance for governments by stating that there was no need to change the law because both nonsmokers and smokers were accommodated by the current situation.LB 121 was advanced out of committee by a vote of 4-1 but after being debated for three straight days, it fell short of passing the first round by four votes.In 1996, officials at the University of Nebraska-Lincoln decided to make Memorial Stadium smoke free.Three years earlier, the chancellor attempted to make Memorial Stadium smoke free along with the rest of the University but he had decided to allow designated smoking areas away from the seating areas after receiving complaints about the new policy.