Smoking is a workplace issue

In the 1950s, shoe stores used machines called floroscopes to show that shoes fit well. These devices consisted of a wooden cabinet, a hole for a customer to put his or her newly shod foot inside, and three viewing ports, one for the salesman and one for the customer, plus one for a parent if the customer was a child.

“This device, by means of its X-ray attachment, makes it possible to see the bones of the foot inside the shoe and shows clearly any deformation or misplacement of the bony structure,” read a sales pitch for one such machine.

It turned out that shoe store floroscopes had widely fluctuating levels of radiation and that some of them gave what U.S. Center for Devices and Radiological Health official Thomas Shope called “fairly high exposures.” It is suspected that some people died as a result.

Inevitably, when there are recollections of this ritual, someone always wonders whether the customers suffered a higher than normal cancer rate.

But it was the shoe salespeople who had to repeatedly operate the devices who were really at risk.

The same kind of indirection accompanies the current debate over Nevada’s anti-smoking law.

“Bar and tavern owners, as well as customers, have expressed anger and confusion over the law since it was enacted,” reported the Las Vegas Review-Journal last week.

Owners and customers. Is someone missing from that survey?

“I have to shower—really well, including shampooing—before my wife will let me into bed,” says one Sparks Nugget dealer.

“I can’t smell it on myself after a shift because I’m so used to it,” says a casino worker at Harrah’s. “But I know it’s on me from the way people back away from me after the end of shift.”

“Tourists are in and out,” said a Circus Circus worker. “I breathe that stuff all night.”

Workers say the state anti-smoking law does them more good than it does customers, who are normally in a casino or restaurant for a relatively short time. Workers are there for a full shift—giving them extended exposure to involuntary inhalation of second-hand smoke.

Studies have shown that second-hand smoke can be a factor in asthma, heart disease, sudden infant death syndrome, cancer, stroke and premature death.

But extended exposure to second-hand smoke increases risks. One study found an increase in cotinine (a metabolite of nicotine) in the saliva of bar workers after they have endured three hours’ exposure to second-hand smoke. The California Environmental Protection Agency has reported that younger women can contract breast cancer as a result of extended exposure, and one study noted, “Women who work as waitresses receive the maximum exposure to second-hand smoke.”

In November 2006, 53.9 percent of Nevada voters approved a citizens’ initiative petition prohibiting smoking in restaurants, grocery stores, bars that serve food and public places open to children. Smoking is still permitted in casino gambling areas, strip bars and stand-alone bars. Anti-smoking forces turned to an initiative after state legislators and casino lobbyists defeated all their attempts to accomplish the same thing by legislation. Tailored not to arouse the opposition of casinos, the partial smoking ban was complicated and difficult to understand but clearly reduced allowable smoking and was approved by voters.

In a legal battle at the state district court level shortly after the measure was approved, District Judge Douglas Herndon permitted the smoking ban to stand but threw out criminal penalties. Civil fines can still be imposed. Herndon’s ruling was not appealed and the law took effect.

But the favoritism to casinos in the drafting of the initiative petition came back to haunt proponents. Non-casino businesses argued that they were losing trade to the casinos.

At a Senate legislative hearing in Carson City last week, business lobbyists and owners offered sweeping claims of damage they have suffered as a result of the partial smoking ban—dozens of bars closed, hundreds of workers laid off.

But some legislators point out that the same thing is true of virtually all businesses. Herbst Gaming, operating under the name Terrible’s (formerly Terrible Herbst’s), owner in Reno and Sparks of the Sands Regency and Rail City, is among the casino corporations lobbying to water down the smoking ban. But Herbst’s financial troubles clearly go beyond losing smokers. The company, which operates gambling and non-gambling businesses in four states, has a billion dollars in debt and is in Chapter 11 bankruptcy.

Gold Gaming exec Steve Arcana treated the pro-smoking measure as a recession relief bill: “Let’s put Nevadans back to work.”

Health care lobbyist Lawrence Matheis countered the claims of business setbacks with figures showing Nevada’s rate of smoking fell sharply from highest in the nation to 16th.

Senate Bill 372 would allow smoking in stand-alone bars with restaurant facilities that have gambling licenses. It would permit businesses to build separately ventilated smoking rooms. It would also shift enforcement from local to state health officials and would actually prohibit local officials from adopting tougher restrictions on smoking than the state provides. It would permit tobacco use at conventions or trade shows that are not open to the public and are held by a trade group and involve the display of tobacco products. At press time, an amendment was being drafted that eliminated at least the portions that shift enforcement to the state.

Business lobbyists called 372 a mere “clarifying” of the voter-approved law, while health lobbyists said it undercuts the initiative.

The Nevada Constitution bars lawmakers from changing the voter-enacted law for three years after its enactment. That period has not yet elapsed, but legislators claim they can pass a law now that takes effect later. That issue, too, is being litigated. A writ was filed with the Nevada Supreme Court seeking to block the lawmakers from doing anything on the anti-smoking law until the three years have ended.

Michael Hackett, representing the American Cancer Society, said merchants made the argument in the 2006 campaign that they would face economic hardship if the measure was enacted, and voters enacted it anyway. Legislators should not now overrule that judgment, he said.

“It rolls back a significant public health advancement and opposes the will of the voters,” Washoe County health officer Mary Anderson testified.

Lee Radtke of Carson City testified using an artificial voice box. He said that he never smoked but was heavily exposed to second-hand smoke in his workplace, resulting in throat surgery.

But they were opposed by a Mt. Rushmore-like phalanx of some of the state’s top contract lobbyists like Tom Clark, Michael Alonzo and Jim Wadhams representing businesses and trade groups.

Interestingly, while Wadhams is seeking state changes in the law, in May last year he was characterized in the Las Vegas Business Press this way: “Attorney Jim Wadhams questioned the authority of the state’s right to interpret or add to the Nevada Clean Indoor Air Act.”

Six members of the Senate Judiciary Committee, including Maurice Washington of Washoe County, voted to approve the measure. The sole vote to keep the law intact came from Clark County Sen. Valerie Wiener.

In one unusual action, public officials opposed the law approved by the public. Officers of the Las Vegas Convention and Visitors Authority supported repealing the voter-approved law outright because it bars advertising tobacco products at trade shows as well as prohibits smoking at convention centers.

Casino workers declined to allow their names to be used in speaking for anti-smoking measures because their corporations are lobbying in the other direction. “I wouldn’t have a job if they knew,” one said. “I just hope the unions are taking this on.”

Nevada AFL/CIO lobbyist Danny Thompson said his organization has not taken the issue on in part because it has not been pushed to do so by the membership and in part because members are on different sides of the issue. He said individual unions have on occasion pressed some employers to install ventilation equipment to protect their workers.

“We have not taken it on as an issue” in the legislature, he said.