Kansas Health Institute | Information For Policy Makers. Health for Kansans.

Kansas today became the 35th state in the nation to restrict smoking in public areas.

The Kansas Legislature debated the issue for four years before approving the ban in February.

Provisions of the new law have been challenged in recent weeks, with court actions in Topeka and Wichita that have halted enforcement of the ban in a handful of mostly bars and private clubs.

But today, smoking will no longer be allowed in most of the state’s public places and work sites.

“The July 1 celebration of Kansas being a smoke-free state is actually the culmination of years of work,” said Mary Jayne Hellebust, executive director of the Tobacco Free Kansas Coalition. “Starting with the first clean air restaurant ordinance in Salina in 2002, and then moving to the first comprehensive ordinance in Lawrence, now we’re at 36 cities and three counties across the state who passed their own laws. And now, this is the time. It took a long time to reach this point.”

What it will mean

The new law makes it illegal to smoke in indoor public places, including job sites, restaurants and bars. It’s also now illegal to smoke within 10 feet of a doorway or open window of an establishment where smoking is prohibited.

Smoking will continue to be allowed in tobacco shops where at least 65 percent of revenues is from tobacco sales. Also exempt from the ban are up to 20 percent of hotel and motel rooms, designated smoking areas of long-term adult care homes, and certain areas of private outdoor recreation clubs where minors are prohibited. Smoking will also be allowed on the gaming floors of state-owned casinos and in private class A and B clubs licensed before Jan. 1, 2009, that have notified the Kansas Department of Health and Environment that they wish to continue to permit smoking.

History

Former State Sen. David Wysong, a Mission Hills Republican, said in January 2007 that “it was time” to start the discussion on restricting smoking in public places. At that time, about 20 states, 17 Kansas cities and one county had passed some form of smoking restrictions.

The legislative debate centered first on local control issues. Wysong’s bill, which originally would have exempted cigar bars and private clubs, died after an amendment was added that would have allowed counties to vote to “opt out” of the smoking ban. Anti-tobacco advocates, including Wysong, withdrew their support, saying the measure wouldn’t be enough to protect the public’s health.

In 2008, five senators returned to the Legislature with a proposal calling for a county-by-county vote on a zero-exemption law. But that also failed after opponents added a number of exemptions including bars and gaming facilities.

By early 2009, 23 states, 33 Kansas cities and two counties had adopted anti-smoking restrictions. With that momentum, a smoking ban bill passed the Kansas Senate – twice.

The Senate approved Senate Bill 25 early in the session. After three days of hearings in the House Health and Human Services Committee, it was tabled for the session. The Senate then removed the contents of House Bill 2221, a child care bill, and inserted the language from SB 25.

The measure was then sent to a conference committee where House and Senate negotiators were unable to reach agreement.

In February of this year, House members voted 68-54 to concur with the Senate’s position and Gov. Mark Parkinson signed the bill in March.

Still under review

The law, however, hasn’t completely taken effect in all areas of the state.

This week, Shawnee County District Court Judge Frank Theis issued an injunction against enforcement of the ban in 31 private clubs across the state licensed after Jan. 1, 2009.

The new law would exempt only private clubs licensed on or before that date, which was chosen by legislators in 2009 in an attempt to keep bars from relicensing as private clubs to skirt the ban.

The injunction was sought by Downtown Bar and Grill in Tonganoxie, a class B club licensed after the cut-off date. Gavin Young, a spokesman for Attorney General Steve Six, said the state would not enforce the ban in the state’s other 30 class A and B clubs until the legal issue is resolved.

“The guidance we will provide local officials and club owners, pending final resolution of this case, is the order will be interpreted to apply to all similarly situated clubs,” Young said.

A separate case in Sedgwick County District Court resulted in a temporary restraining order against enforcement of the smoking ban in Wichita businesses that have been licensed by the city as “smoker friendly” establishments. That restraining order is valid until July 15.

Attorneys for Wichita businesses fighting the new law have said that its exemption for casino gaming floors, among other things, creates an unfair business advantage for the state, because people may smoke, drink and gamble in state-owned establishments.

The casino exemption also has been decried by public health advocates.

Economic impacts

Business owners continue to voice concern about the effect the new smoking ban will have on sales.

The owner of a bingo hall in Wichita, one of the four businesses who asked for an injunction against the statewide ban, estimated in court documents that 90 percent of his customers smoke. And, he wrote, based on his conversations with patrons, 40 to 50 percent of his customers have said they would go elsewhere to play bingo, if they could no longer smoke inside his establishment.

A Kansas Health Institute study from 2009 of Lawrence bar and restaurant sales before and after that city’s smoking ban took effect found no evidence of an economic impact on the community as a whole.

“There are clearly winners and losers in the rough-and-tumble marketplace of the restaurant and bar industry” the report’s authors concluded. “However, there are no studies in scientific, peer-reviewed journals that document a consistent negative, community-wide impact on restaurants and bars following the implementation of a smoke-free ordinance.”

Health effects

A report issued in 2006 by then-U.S. Surgeon General Richard Carmona found that “there is no safe level” of secondhand smoke.

The report was “pivotal” in ending the debate over the danger of secondhand smoke across the country and in Kansas, said Paula Clayton, director of the Bureau of Health Promotion at the Kansas Department of Health and Environment.

“The science was clear with the release of the surgeon general’s report that secondhand smoke is a serious health hazard that clearly causes premature death in adults and children,” she said. “And it showed that everything we try to do to minimize secondhand smoke just is not as effective. Separate ventilation systems don’t work, separate seating sections don’t work.”

And, she said, the report changed the arguments for and against restrictions on smoking.

“It moved from being a personal choice and a right to smoke to a discussion on how to protect the population’s health,” she said. “The discussion became more about protecting the non-user.”

Secondhand smoke can cause heart disease, lung cancer and a number of other ailments, according to a 2009 KDHE report on secondhand smoke. About 400 Kansans die each year from secondhand smoke, according to the report.

“Even a short time in a smoky room can cause blood platelets to become stickier and damage the lining of blood vessels,” the report stated. “Nonsmokers exposed to secondhand smoke at home or work increase their risk of developing lung cancer by 20 to 30 percent and heart disease by 25 to 30 percent.”

Other impacts

Some cities are revisiting their local ordinances in light of the new state statute.

Last month, the Lawrence City Commission adopted a new ordinance that reflects the statewide ban. The commission, for example, added the language from the state law that requires smokers stay 10 feet or more from doors and open windows but kept provisions from the city’s ordinance that were stricter than the state lawn. The Lawrence ordinance includes no exemption for gaming floors and empowers the city fire department to enforce the ordinance. It also bans the smoking of any “non-tobacco vegetation.”

The Topeka City Council is also revisiting its local ordinance, said city spokesman David Bevens.

The city is considering a new ordinance similar to the state law and which would also clarify the definition of “tobacco shop” to make it clear they cannot be located inside a bar, Bevens said.

A Topeka tobacco shop owner whose business is inside a pool hall is suing the city after being cited for smoking infractions.

The debate over smoking in public places is far from over, Hellebust predicted.

She said state lawmakers likely would discuss the measure again over the next two years.

“We know this has been a contentious issue for many people, particularly for some businesses,” she said. “We’re intending to maintain the gains we have achieved and intend to move further to improve the public health in Kansas.”