After the Health Department finalized its draft in early October, a hearing before the Lincoln City Council was set for November 3, 2003. On October 14, the Lincoln-Lancaster County Board of Health held a meeting to recommend that the City Council approve the proposed law. The board’s president, Ed Schneider, said “It’s time we try to protect these innocent people who are not smokers . . . 80 percent of the public who have been adversely affected by secondhand smoke.”Despite the elimination of workplaces located in private residences from the requirements of being smoke free, Walt Radcliffe, the lobbyist for United States Tobacco, released a memo on October 23 that said that the enforcement provisions of the Health Department’s proposed ordinance would violate the Fourth Amendment of the United States Constitution.Specifically, Radcliffe felt that the language in the Lincoln Smoke free Air Act, which said, “The Health Director and law enforcement agencies are hereby authorized to inspect a place of employment or public place at any reasonable time to determine compliance with this Chapter,” would allow warrentless inspections that violated the Fourth Amendment.Within a few days, council members had introduced numerous amendments to weaken the proposed ordinance.Three members, Glenn Friendt, Annette McRoy and Jon Camp introduced amendments to allow smoking in bars with their amendments differing in how a bar was defined. Council member Patte Newman introduced an amendment to exempt truck stops and coffeehouses. At the time, Council member Terry Werner told reporters that he was considering introducing an amendment to allow separately ventilated areas where smoking was permitted,trimming cannabis a position promoted by the tobacco industry.Ignoring the fact that such ventilation systems do not address the health problems associated with secondhand smoke for employees, he stated, “There has to be a little room for compromise.

Maybe there’s a way to do it without compromising people’s health.”The reason why Werner felt ventilation was a possible compromise was because health advocates had not presented a united front in opposing ventilation. The American Cancer Society and a environmental health representative from the Health Department stated that the ordinance would better protect the health of the public in the form proposed by the Health Department but that ventilation would be an acceptable compromise.Other health advocates continued to reiterate their position that the ordinance should not be weakened in any way including ventilation. Werner would go on to introduce an amendment to allow separately ventilated “smoking rooms” in businesses,but he and Ken Svoboda were the two council members that were most supportive of passing a strong smoke free ordinance.Concerning the amendments, Ed Schneider, President of the Board of Health, said, “I think that [the adoption of the proposed amendments] will not give the protection to the public or employees we need. We have some empathetic, intelligent, caring council people. What we have to do is remain focused on the health issue.”With the Lincoln City Council already contemplating weakening the proposed ordinance, Jerry Irwin, the owner of a Lincoln strip bar called the Foxy Lady, began circulating petitions in 30 to 40 bars for patrons and employees to sign opposing the ordinance.166 Irwin stated that he was hoping to gather thousands of signatures to present to at the next City Council meeting. He said, “There will be a ton of people. The first hearing, that was just the first wave. There will be a lot of bar employees saying in not a problem.”By the second hearing on November 17, no changes had been made to the Health Department’s proposed ordinance but more than 15 amendments had been introduced by council members, almost all seeking to weaken the smoke free provisions within the ordinance. During the hearing, health advocates continued to focus on the health benefits to workers and the general public and testified against the tobacco industry positions raised by bar owners that their business would be harmed and that smoke free ordinances represented improper government inference.

The health advocates also argued that separately ventilated rooms were ineffective in protecting employees and the public from secondhand smoke. Following the second hearing, Lincoln Journal Star printed an editorial calling on the City Council to not weaken the proposed ordinance. It concluded, “Creating exceptions to the ban will only create problems and weaken its effect. Banning smoking in all workplaces is healthier, fairer and simpler. The City Council should approve the ban in its current form.”With the City Council still undecided, the original date for a final vote, set for November 24, came and went with no changes being made to the ordinance but no vote being taken either. Individuals from both sides of the debate continued to mobilize in support of their position by contacting the members of the City Council and the media. It was at the next meeting on December 1, that the City Council finally decided take action on the Lincoln Smokefree Air Act. Due to pressure exerted through the hospitality industry, Council Members Patte Newman and Annette McRoy, had introduced an amendment which sought to exempt bars. This amendment required that to receive an exemption the bar had to file an affidavit annually with City Clerk’s office stating that less than 60% of its gross revenue came from the sale of food. At this meeting, health advocates were able to convince the City Council to reject this bar exemption by a vote of 3 – 4 with Newman, McRoy and Friendt voting in favor.168 The turning point in the Lincoln Smoke free Air Act came after the City Council’s decision to not exempt bars. Instead of voting on the Health Department’s proposed ordinance, the City Council continued to seek a compromise position and then sets its sights on the amendment introduced by Terry Werner that sought to allow any workplace to have separately ventilated break rooms and “smoking rooms.”The language of the amendment did not make it clear whether these “smoking rooms” would be simply a room where people could go to smoke or whether it would serve as a smoking section for a restaurant or bar where employees would have to work. The amendment did limit the size of the “smoking room” by saying that it could comprise no more than 35% of the square footage of the place.

Despite the fact that the language of the amendment did not make its intent clear, the City Council decided to adopted it by a vote of 4 – 3 with Werner, Svoboda, Cook and Camp voting in favor and the three council members who wanted to exempt bars entirely voting against it.Because the City Council had adopted this amendment,drying and curing cannabis the vote on passing the ordinance was delayed for another week for to allow for further examination of the modified ordinance.The City Council’s decision to weaken the law by allowing ventilation and the subsequent delay that it caused would have further ramifications for the outcome of the ordinance. Neither side was happy with this compromise and since the vote was delayed, both health advocates and members of the hospitality industry continued to press the City Council. At the next meeting, on December 8, Patte Newman reintroduced her amendment to allow smoking in bars that took in less than 60% of their revenue from food sales. Having already rejected that amendment the previous week, some council members were surprised at Newman’s action. Council member Werner stated, “This certainly wasn’t typed up in the last five minutes. Why didn’t we have it? . . . It certainly gives the appearance of trying to hide something.”During the meeting, Newman placed a stack of petitions gathered by bar owners about 1 ½ feet high in front of her and, ignoring the polling data released by health advocates, said, “I believe the community has spoken. The exemption for bars is an exemption the community wants to see.”Despite its failure the week before, the Lincoln City Council decided to adopt the amendment to exempt bars by a 4 – 2 vote with Jon Camp switching his vote in favor.Jonathan Cook was absent from the meeting due to illness. Camp said that he decided to change his vote after he sequestered himself from the public for several days to read a book about personal freedom and responsibility written by his late father.During this meeting, the City Council also decided to remove the language limiting smoking in motel and hotels rooms to no more than 20% of the total number of rooms and 35% of total square footage for the separately ventilated “smoking room.” They replaced these hard limits with language similar to the Nebraska Clean Indoor Air Act so that the area were smoking was allowed was to be “reasonably proportionate to the preference of the users.”Because of Council member Cook’s illness, the City Council decide to delay its vote until the next week’s meeting on December 15. With the ordinance now exempting bars and allowing separately ventilated “smoking rooms” in other places, health advocates were angered by the actions of the City Council. Following the City Council meeting, Cindy Wostrel, chairperson of Tobacco Free Lincoln, told the press, “This defeats the intent of the legislation and the will of city voters.” With these changes, the health advocates stated that it would be better for the ordinance to be defeated than to pass in its current form.

Ed Schneider, the President of the Lincoln-Lancaster County Board of Health, said, “We’d rather not have any ordinance at all. This does not protect the health in this form.”The City Law Department was also critical of Newman’s amendment. They stated, “This amendment lacks consistency between exempted places of employment and public places. This amendment is also inconsistent with the intent of the proposed ordinance and the Nebraska Clean Indoor Air Act. In addition, this amendment raises many legal concerns.”The legal concerns that the Law Department were referring to were that the City could be open to lawsuits from businesses claiming that the ordinance created unequal treatment.168 Another problem with the amended ordinance was that the City Council still had not clarified whether or not employees would have to work in the separately ventilated “smoking rooms.” Regarding smoking break rooms, the ordinance stated, “The smoking break room shall not serve as a work area and no employee shall be required to enter the smoking break room in order to reach the employee’s work area. The prohibition shall not apply to employees providing janitorial and maintenance within the smoking break room,”but the only protection provided to in employees regarding the “smoking rooms” was a section which stated, “No member of the public nor any employee shall be required to enter the smoking room in order to access common areas of the place of employment or public place, including but not limited to, hallways, restrooms, lobbies, and waiting rooms.”At the next meeting on December 15, health advocates attempted to get the City Council to vote up or down on the original draft that was submitted by the Health Department. Council member Werner made a motion to adopt the original form of the ordinance but it was rejected 3 – 4 with Werner, Svoboda and Cook voting in favor.Following this setback, the health advocates tried at the meeting to get the weakened version of the ordinance defeated, but once again, they were unsuccessful. The Lincoln City Council voted 5 – 2 in favor of adopted the ordinance that allowed separately ventilated rooms and exempted bars.The two opposing votes were from Werner and Svoboda. The members of the hospitality industry were thrilled by their victory. “I’m excited. I think it was a good compromise. I think the democratic process was followed,” said Brian Kitten.On August 18, 1995, the Omaha Police Department again conducted tobacco compliance checks on 84 businesses; 24 of these merchants sold to minors.During this set of checks, several Baker’s Supermarket stores sold to minors, a second offense at four locations; therefore, they were required by the city ordinance to suspend selling tobacco for at least one day.Angered by this requirement to suspend sales, Fleming Supermarkets, the parent company of Baker’s, filed a lawsuit in the District Court of Douglas County against the City of Omaha and the Administrative Board of Appeals of the City of Omaha on the grounds that Omaha’s ordinance conflicted with state law.