Meanwhile, Fairbanks was demanding direct policy decisions from city councils instead of waffling on whether or not to go ahead with a smoke free ordinance. In February 2002, as the Tempe smoke free initiative entered the crucial phase of the campaign when it encountered an opposition campaign organized by local bar owners, Fairbanks observed, “If people think something’s happening on a regional level, they might say, ‘We don’t want to be too hasty in Tempe.’”As the Tempe campaign geared up, the conflicting efforts between the health voluntaries and ACAS grew. ACAS focused on passing the Tempe ordinance and the health voluntaries attempted to recoup the investment in time and energy spent in the long previous months, desperately trying to bring the East Valley chambers of commerce back to negotiate on a regional anti-smoking ordinance after Phoenix made clear it would not participate.The opposition, Tempeans for Freedom to Choose, was chaired by Arizona Licensed Beverage Association President Bill Weigele with Roger Egan as treasurer. Egan was owner of McDuffy’s Sports Bar in Tempe and was one of the Tobacco Institute’s contacts for its 1994 Arizona plan to counter OSHA’s proposed clean air rule.In an interview in 2006, Fairbanks speculated that the concerted group of bar and restaurant owners comprising Tempeans for Freedom to Choose did not take direct contributions from the tobacco industry both because they thought they could defeat the ordinance on their own, and because they feared the public backlash tied to accepting industry funds.The smoke free initiative, called a “divisive issue” that had “split the city” by the media, led to the public asking candidates for City Council elections their opinions on the proposed ban shortly before the election.Candidate Carol McKnight remarked “I think its going to impact businesses, and I’m in favor of businesses,” an example of the vague statements expressed by the candidates.The Arizona Republic also opposed the initiative,sliding grow tables essentially reiterating in their April 24, 2002 opposing editorial the reasons ALBA President Bill Weigele had mentioned in an opinion editorial a few weeks prior.
Tempeans for Freedom to Choose also secured the Tempe Chamber of Commerce’s opposition to Smoke-Free Tempe. Tempeans for Freedom to Choose spent $100,000 on their “no” campaign.Tempeans for Freedom to Choose reformed as Citizens for Fair Non-Smoking Laws to weaken and repeal the smoke free ordinance. Citizens for Fair Non-Smoking Laws’ proposal would have allowed smoking in bars, restaurant bars, restaurants with separate smoking sections, bowling alleys and pool halls. Bankrolled by Rich Bank, CFNSL president and landlord of a local bar, the organization used litigation, city council lobbying, and gathered signatures to attempt to undo the ordinance and force a re-vote.After failing to convince the Tempe City Council to repeal or weaken the smoke-free ordinance, CFNSL filed 22,316 petition signatures with the Tempe City Clerk in early December 2002 to place their weakened smoking ordinance before voters at the next election. While this attempted referendum did not prevent Tempe’s smoke free law from going into effect, CFNSL tried to use the signatures as leverage to force the City Council to immediately pass CFNSL’s proposed initiative into law and threatened legal action if the council failed to immediately reconsider the ordinance already in effect.214 The city attorney stated that because of the 1998 Voter Protection Act , the city council did not have the authority to comply with Citizens for Fair Non-Smoking Laws’ demand. The only way to repeal a citizen enacted law would be to take it back to the voters. Despite Rich Bank threatening to sue the council if it failed to comply with his group’s wishes, the issue was never brought before the Council.After it became clear to Bank that the City Council had no intention of overturning the smoke free law and replacing it with the weak CFNSL ordinance, CFNSL pushed the City Council for a special election, first trying for May 2003 and then hoping for September or November 2003. While normally Tempe ballot measures would have to wait until the next election cycle to be voted on, CFNSL’s media attention on the ordinance and aggressive demands for a sooner election caused the City Council to consider a special election.
When the $115,000 cost for a special election became an issue, CFNSL offered to pay for a special May election. Rich Bank already had started raising money for a privately-funded public election in May 2003 and had persuaded a majority of the city council, members Pam Goronkin, Barbara Carter, Leonard Copple and Mark Mitchell, to consider accepting the funds for the special election.The special election never happened, however, because members of Tempe’s government, including mayor Neil Giuliano and Councilmember Dennis Cahill refused to run a privately-financed election. Various irregularities with CFNSL’s petition signatures also soon became a more pressing issue.When it became clear that Citizens for Fair Non-Smoking Laws’ petitions only achieved 61% validity in the random small random sample of the signatures examined by the City Clerk, barely enough to qualify for the ballot without a full review , Arizonans Concerned About Smoking got involved. In early January, 2003, ACAS meticulously examined the signatures gathered for the referendum and uncovered enough “irregularities” in the validity of the signatures gathered to eventually disqualify CFNSL’s repeal attempt.ACAS’s discovered findings included petitions illegally circulated by felons , illegally tricking people into signing the petition by telling them it would support the Proposition 200 Tempe smoke free law, illegally having circulators use others to circulate their petitions where the person who was actually gathering the signatures from citizens was different than the person whose name was printed on the reverse of the petition , names copied out of the telephone book in order , repeats of up to six times of the same name with differently styled signatures, signature forgeries , and illegible names and information. After finding repeat signatures, nonexistent addresses, and other non-qualifying signatures in CFNSL’s petition, ACAS filed a suit with the Maricopa County Superior Court challenging the legality of many CFNSL’s signatures gathered, demanding that the invalid signatures be removed. Rich Bank admitted in testimony before a superior court judge that several of those employed to gather signatures were convicted felons and thus not legally eligible to do the gather signatures for a ballot initiative.While Judge Mark W. Armstrong had the power to throw all of the 22,316 signatures out if he decided the many irregularities warranted such action, he ordered a second sampling count after invalidating 4951 signatures.
The hearings in June 2003 led Tempe Mayor Neil Giuliano to remark in the Arizona Republic “This whole thing is a mess” and that the petitions “should be thrown out and they should have to start all over again.”Tempe City Clerk Cathy Matz, who was charged with certifying the petitions, called the petitions submitted “the biggest mess I’ve ever seen.” Attorney Lisa Hauser represented CFNSL in court and attempted to defend the illegal signatures and CFNSL’s hiring of Kim Dixon,4×4 flood table grow a petition gatherer for CFNSL who had five felony fraud convictions and listed five different addresses when signing her petition affidavits, by claiming Dixon may have been dyslexic.Hauser would represent the RJ Reynolds Non-Smoker Protection Act, Proposition, in 2006,and was Gov. Fife Symington’s Administrative Counsel, present when Gov. Symington met with 6 attorneys and lobbyists from Philip Morris, RJ Reynolds, Brown and Williamson, and the Tobacco Institute the day before Symington demanded Arizona Attorney General Grant Woods drop the state’s suits against the tobacco industry.In July 2003, as CFNSL struggled to keep its qualified signatures, Click’s Billiards sued the City of Tempe over the constitutionality of the smoke free ordinance, claiming discrimination against smokers because they alleged there was no substantiated evidence that secondhand smoke is harmful if air systems are installed. U.S. District Court judge Roslyn Silver dismissed the case, which challenged the constitutionality of the smoking ban, ruling that the ordinance “easily passes constitutional muster.”This type of legal challenge against clean indoor air acts is a routine tobacco industry strategy, which almost always is unsuccessful.Tobacco industry documents show that Click’s Billiard participated both in an RJ Reynolds Camel Notes Central Exchange Initiative Program 1991 and was on a Phillip Morris Field Action Team Campaign and Mobilization/Supplemental Contacts list in 1996. The second random sampling of the remaining 17, 365 signatures, conducted in September 2003, found 63.6% of these signatures to be valid, leaving enough valid signatures to get CFNSL’s initiative on the ballot. Yet, ACAS, based on the recurring pattern of invalid signatures in their own recount of the signatures, persuaded the Tempe City Clerk to hand check every signature. When the City Attorney, the City Clerk, a city- hired temp staff, and mostly, ACAS members counted the signatures one-by-one, they found barely 40% of the signatures submitted were actually valid.After reviewing every signature submitted by CFNSL, on December 5, 2003 the Maricopa County Recorder’s Office “determined that the petitions contained 9,816 valid signatures, which is less than the minimum number of signatures required” to place the proposal on the ballot . On December 5, 2003, more than 20 months after the original Tempe Proposition 200 passed, Tempe’s City Clerk and City Attorney sent a letter to Rich Bank and CFNSL informing them that their initiative measure “failed to qualify for Tempe’s March 9, 2004 election ballot.”After this defeat, Rich Bank declared that CFNSL had exhausted its funds. Citizens for Fair Non-Smoking Laws spent around $159,000 on gathering signatures for a repeal initiative and in lawyers fees in suing for discrimination both Leland Fairbanks and the City of Tempe. In mid-March, 2004, almost two years after Proposition 200 passed, the CFNSL dropped its lawsuits against the city and Fairbanks. The Tempe City Attorney Marlene Pontrelli in March 2004 prohibited CFNSL from any further efforts against the Tempe clean indoor air ordinance given the waste of city time and money the group caused.Despite the drawn-out opposition to Tempe’s clean air ordinance defenders such as Mayor Neil Giuliano and Dennis Cahill maintained the ordinance Tempe voters approved and became advocates for other communities toenact similar ordinances in Prescott and Flagstaff based on the positive experience of smoke free Tempe.
After October 2002, when the ordinance finally went into effect, Tempe experienced 100% clean indoor air, beginning a trend all of Arizona would soon follow.The Chandler City Council passed a partial clean-indoor air act April 24, 2003 that made workplaces and restaurants smoke free. The council perceived the clean indoor air issue as ”dollars vs. health.”In an effort to support adoption of clean indoor air in Chandler, tobacco control advocates hoped Chandler would include smoke free bars and, thus, inspire other Arizona cities to do the same. An Arizona Republic article reported that “Fairbanks says other cities are watching Chandler because its smoking ban would be stricter than all others except Tempe’s and Guadalupe’s.”Chandler’s Blue Ribbon Committee on smoking policy, a voluntary advisory ad hoc committee formed in 2002 by the Chandler City Council to research the possibilities for Chandler to have a smoking ordinance, voted 10 to 2 on February 11, 2002 to send three options to the mayor and council. These three options were making 1) all workplaces and public places including bars, smoke free by October 2003, 2) all workplaces smoke free by October 2003 and phase in bars October 2005, or 3) workplaces and restaurant smoke free, but exclude bars altogether.A group of nurses, led by Lama E. Celaya, wrote the Chandler Mayor’s Smoking Committee urging the adoption of a 100% smoke free ordinance including bars.To the chagrin of local tobacco control advocates, the City Council adopted the weakest of the recommendations, exempting bars altogether. Starting October 1, 2003, Chandler created smoke free workplaces and restaurants, while exempting bars, bowling allies, and restaurant bars physically separated and ventilated. After unresponsiveness from city leadership, Prescott addressed the issue of smoking with an initiative, also called Proposition 200, which was very similar to Tempe’s except for a two-year delay for bars and restaurant bars. Passed November 4, 2003 with a margin of less than one percent, the Prescott ordinance made workplaces and restaurants smoke free and phased in bars in November 2005.In response to the health advocates’ efforts, ALBA filed a competing initiative, Proposition 201, which would only have required restaurants and bars to post whether they were smoking or non-smoking establishments.