It was no surprise that a legislator representing the Hampton Roads area , like Sen. Northam, would support smoking restriction legislation. Most of the localities in that area were considering asking the General Assembly to pass legislation giving their locality the power to enact some sort of local restaurant smoking restriction and Norfolk had been seriously considering enacting local restaurant restrictions under the assumption that preemption did not apply to their municipality until backing off the proposal in 2008 .Lawmakers representing the Hampton Roads area, including Sen. Northam; Sen. Quayle and Sen. Mamie Locke also pushed for statewide laws that either repealed preemption statewide or allowed their locality greater authority to regulate smoking.On January 25, 2008, House Speaker William Howell referred all of the smoking related bills to General Laws Committee, notoriously hostile to tobacco-control legislation.Howell had close financial ties with the tobacco industry, having accepted $10,000 in campaign contributions since becoming Speaker in 2003.This is significantly more than the median tobacco industry campaign contribution to House Republicans from 1999-2007 . Del. Terrie Suit , who had previously supported Gov. Kaine’s restaurant smoking restriction proposal in the 2007 session, chaired the General Laws Committee. According to House rules, Del. Suit in her role as chair of the committee could have asked to have a bill brought before the full committee by using House Rule 18. Despite the fact that Del. Suit represented an area with a high support 250 for restaurant smoking restrictions, she refused to allow the bills to come before the full committee and instead funneled them into the hostile Alcoholic Beverage Control/Gaming Subcommittee ,indoor grow rack where they were all killed after no further action was taken.An editorial in the Virginian-Pilot questioned why her position had changed and raised several points as potential answers.

Del. Suit maintained that her support waned when many local restaurants in her district voluntarily went smoke free. The editors pointed out that many other areas, including whole communities in her district like Saxis, Big Stone Gap, and others, had very few smoke free choices. Despite the fact that Del. Suit did not accept, and on one occasion returned, tobacco industry contributions, she did owe her chair personship of the General Laws Committee to Speaker Howell. Public health advocates felt the same way. As Cathleen Grzesiek, co-chair of VFHF, described, once Suit “became chair of [the] General Laws [Committee] … all of a sudden she no longer supported clean indoor air laws.”Tobacco control advocates from the Virginia Beach area turned up the political heat on Del. Suit after realizing that she had the power to determine whether these bills were to die in committee. The primary group that pressured Suit was the Virginia Beach Restaurant Association , which urged its members — who were constituents of Del. Suit in the South Hampton Roads area — to tell her to reverse her decision.In addition, the VBRA took out a full-page ad in the Virginian-Pilot urging readers to pressure Del. Suit to move the bill out of subcommittee for the consideration of the full General Laws Committee.Noting that it seemed unfair that just seven legislators could keep a bill from the other 93 members of the House and that there seemed to be broad legislative support for such a bill, a past president of the VBRA stated that “we [the VBRA] feel all representatives should have a chance to vote on it.”Meanwhile, other hospitality industry groups, including the Virginia Hospitality and Travel Association, remained opposed to the bill.VFHF also employed phone banking to target Suit, as well as Speaker William Howell, Dels. Thomas Gear and David Albo who were members of the ABC/Gaming subcommittee. The primary activity against Suit, however, came from the VBRA.Advocates were outraged that the bills ended up in the ABC/Gaming subcommittee. Hilton Oliver, the executive director of Virginia GASP, said “[t]he issue of smoking in restaurants has nothing to do with ABC and gaming, but it has a lot to do with health.

They are playing games [there in the House], no question about it.”Virginia politics and the influence of Speaker Howell had placed the anti-smoking bills into hostile committees, like many other times before. VFHF held that at a minimum, the bills deserved a fair hearing by the full committee.The debate mirrored the same arguments that had been made in Virginia ever since the issue of smoking restrictions first emerged in the 1970s. Many on the General Laws Committee continued to point toward free market principles to justify opposing the legislation. For example, Del. Gear argued, “[i]t’s wrong for government to intervene and tell restaurants they have to do something.”Del. Suit argued that the General Assembly did not need to act on the proposal and that voluntary smoking restrictions were already happening.She stated “[t]wo years ago … I couldn’t find a restaurant that was smoke free. But because of this debate, the whole issue over the last few years has been elevated to the level that so many restaurants have gone smoke free, I no longer believe it’s necessary for the government to step in and do it.”As before, representatives from the Virginia Retail Merchants Association, Virginia Hospitality and Travel Association, and Cigar Association of Virginia spoke of the bill in terms of “choice and property owners’ rights.”Nathan Jones, a Richmond resident and owner of 13 restaurant franchises, claimed that a restaurant law in Indiana caused a 10- 15% drop in alcohol sales, which Mr. Jones claimed could “kill a small business” in a year.These often-repeated claims about the harm to small business interests from tobacco restrictions – the centerpiece of the tobacco industry’s efforts to generate local opposition to such laws since the 1980s – are false.In particular, a 2003 analysis of all the research on the economic impact of smoking restrictions on the hospitality industry, including bars and restaurants, showed no negative impact on revenue.Despite the pressure from several sides, Del. Suit did not change her position, and the legislative session ended in March with no tobacco restriction bills surviving.All the tobacco control bills before the ABC/General Laws Subcommittee were defeated unanimously by voice vote rather than a recorded vote.The reason, according to Gov. Kaine after the vote occurred, was that “[t]hese guys don’t want to be on the record on a matter like that.”Norfolk enacted their original smoking ordinance in 1988, which provided for nonsmoking sections in restaurants and many other public places, and prohibited smoking completely in many retail stores.

This made it stronger than the subsequent state law passed in 1990. In May 2006, Theresa Whibley, a physician,vertical growing racks was elected to the Norfolk City Council. After being elected, Whibley began to push for an ordinance that would that would completely prohibit smoking in restaurants after reading the 2006 Surgeon General’s Report “The Health Consequences of Involuntary Exposure to Tobacco Smoke,” which among other findings reported that eliminating indoor smoking fully protects nonsmokers from harmful effects, while ventilation and separation of smokers from nonsmokers within an enclosed space did not.What Whibley read in the Surgeon General’s Report dovetailed with her personal convictions and experience as a physician that second hand smoke was harmful.No other Hampton Roads area city had smoking restrictions at the time and Whibley felt that the city “need[ed] to take the lead” on the restaurant smoking issue.When she joined the Norfolk City Council, she began inquiring whether the Council could prohibit smoking in restaurants.Whibley sought help from City Attorney Bernard Pishko, who informed her that Norfolk’s charter allowed the city to implement a restaurant smoking restriction without requiring permission of the General Assembly. Pishko argued that neither Dillon’s Rule nor the preemptive language of the VICAA impinged upon Norfolk’s inherent police powers granted by its charter. Therefore, any ordinance that correctly invoked Norfolk’s police powers would be valid. While the VICAA explicitly preempted stronger local regulation of restaurants or bars, Whibley and Pishko had compiled a great deal of evidence that demonstrated that no level of secondhand smoke exposure was safe, and that because of this no law that required no-smoking sections could adequately protect the health and welfare of patrons or workers.Based on this fact, the Norfolk city attorney’s office drafted language for the proposed ordinance that simply required any nonsmoking area to be “effective.” Because the only effective protection for workers and patrons would be a 100% smoke free interior space, Whibley and Pishko were confident that their “effectiveness” language was a valid exercise of the city’s police powers.

Both Pishko and Whibley expected the ordinance to be challenged in court if enacted but felt that they could argue successfully that this approach was consistent with both Dillon’s Rule and the requirements of the VICAA. Whibley and Pishko were the primary motivators for the proposed ordinance, but, after learning about their proposal, the Virginia chapters of the national voluntary health organizations offered material support and publicity, primarily to identify and promote restaurants that were smoke free.After discussing the idea with the City Council in December 2006, the Council voted to endorse the idea but to hold off on enacting any ordinance until it became the results of the debate about statewide legislation affecting restaurants would be.City Manager Regina Williams scheduled hearings in January, 2007 for restaurant owners to address their concerns, as a majority of restaurateurs had come out as opposed to the ordinance, primarily based on concerns that the ordinance would harm their business. These concerns were echoed by some on the Council, such as Vice Mayor Paul Riddick, who was concerned that it would affect the livelihoods of small business owners.The Norfolk Restaurant Association opposed the proposed ordinance, but in a 2009 interview Whibley characterized their complaints as not very vociferous.On July 10, the state Attorney General’s office released an opinion by Virginia Attorney General Bob McDonnell that stated that such restrictions would violate the VICAA’s preemption language, which was issued in response to a request from Del. Bill Janis . In response, Norfolk’s City Attorney, Bernard Pishko, told the press his opinion was that the police powers inherent in Norfolk’s charter were sufficient to allow the restrictions to be implemented without asking the General Assembly for permission.In August 2007 the City Council decided to go forward with their plans to restrict smoking in restaurants within the city despite McDonnell’s opinion, based on Pishko’s advice to the council that it made no difference as to their ability to enact stronger local restaurant restrictions.In October 2007, the Council voted 7-1 to implement an ordinance that completely prohibited smoking in restaurants and bars . As passed, the 2007 ordinance was significantly stronger than state law, completely prohibiting smoking in restaurants and bars, with an exception only for establishments conducting a private function in the entire space. It maintained many of the other provisions of the 1988 ordinance. By completely prohibiting smoking in restaurants or bars, Norfolk’s ordinance not only would have protected the health of workers and patrons, but it was also significantly stronger than the 2009 statewide legislation, which allowed for both smoking rooms and ventilation. However, the ordinance would not have gone into effect until July 2008, and before that date arrived the Council shifted its position in early 2008 on the restaurant smoking restriction issue. Five council members rethought their support, citing the failure of statewide or regional smoking restrictions in the General Assembly.Barclay Winn, a council member whose interactions with Virginia Beach led to the Hampton Roads regional approach, said that he wanted a “minor revision for sports bars … I just want to be sure we get a level playing field.”Another council member, Vice Mayor Anthony Burfoot, wanted to include a provision that allowed restaurants the ability to appeal the restriction if they can show resulting economic damage.Council member W. Randy Wright felt that the Council “can’t put our establishments at a competitive disadvantage.”As the five council members backpedaled, Whibley expressed frustration and hoped that the law would be implemented unchanged.Ultimately, despite Whibley’s efforts, the Council moved steadily towards a vote rescinding their earlier ordinance. At the end of March 2008, the Council voted to rescind the restriction, partially because it seemed that a statewide restaurant smoking restriction would soon pass .