Multiple Smoking Measures Raise Clouds Of Confusion


Contrary initiatives in Kirkwood, a referendum in St. Louis County, may have to be sorted out by courts


July 31, 2009
It appears likely that a proposal to ban smoking in most indoor, public places in Kirkwood will be decided by voters come November.

The results of the November vote, however, may not represent the final word on the status of lighting up in the Greentree City. That's because there are currently two other smoke-related initiatives making their way through the political process pipeline.

One comes from a group calling itself Choose Kirkwood, which began collecting signatures last weekend toward an initiative that would permit smoking in Kirkwood eating and drinking establishments, provided that informational signs are posted in entry ways.

The other comes from St. Louis County, with efforts currently underway toward a possible November ballot measure that would ban or set limitations for smoking in public places throughout the county, including municipalities.

Following actions by the Kirkwood City Council on July 16, the Healthy Air for Kirkwood (HAK) measure appears headed for Kirkwood's Nov. 3 ballot.

It's possible, but unlikely, that Choose Kirkwood's counter petition initiative will meet the Aug. 25 deadline for inclusion on the November ballot. That's because a minimum of 1,035 signatures must be collected, validated, then acted upon by the city council, which has 60 days to consider the matter.

Joe Toenjes is one of the leaders of Choose Kirkwood. He has asked that HAK withdraw its proposal, saying that Kirkwood voters in 2006 rejected a city-wide smoking ban.

"We are hoping to compete with the HAK proposal. I want to reiterate emphatically that we did not want to go with this option. But HAK has refused any real dialogue. They have forced citizens of Choose Kirkwood to protect our rights and put up a competing proposal," Toenjes said.

Healthy Air for Kirkwood supporters say that the current proposal differs from the one rejected by voters in 2006. The initiative deals only with indoor public places, and questions concerning smoke from barbecues, fireworks, etc., are allowed.

Confusing Ballot Scenarios

Should both initiatives appear on the ballot in November, Kirkwood City Attorney John Hessel said the city's charter is clear. The initiative receiving the greatest number of votes would win.

Other scenarios are far less clear, according to Hessel. For example, it's likely that the Healthy Air initiative will appear on November's ballot, but the opposition's initiative will not.

The question becomes: If voters pass the Healthy Air initiative and it becomes law, does the city allow the second initiative to appear on a future ballot? Hessel said once the smoking ban becomes law, a referendum -- not an initiative -- would be required to repeal it. The Choose Kirkwood forces may have to begin their petition process all over again.

"That's because an initiative calls for an ordinance that doesn't previously exist. Once that law exists, they (Choose Kirkwood) would have to repeal the law by submitting something in the form of a referendum," Hessel said.

But what if the Healthy Air initiative is passed in November but does not become law before the choice initiative is certified for the February or April ballot?

"I don't know of any legal precedent for this, and I am uncertain what I would do. I would hope to find some legal precedent to guide me, but I doubt that such a precedent exists. This may be decided by a judge," Hessel said.

Should Healthy Air be rejected by voters in November, the city council has the option of passing a smoking ban ordinance on its own, vote to adopt the initiative petition from the Choose Kirkwood group, or act to place it before voters.

Adding to the confusion is the current effort by St. Louis County Council Member Barbara Fraser, D-University City, who on July 21 introduced a bill to outlaw indoor smoking in public places in St. Louis County. Depending on whether the county council acts quickly on the measure, Fraser expects the referendum to appear on the November ballot.

When it comes to public safety, St. Louis County is entitled to enact laws which take legal precedent over municipal laws. Hessel said proponents of smoking bans will certainly argue that the dangers of second-hand smoke constitute a public safety issue. Should voters pass a county-wide smoking ban in November, Kirkwood's local efforts toward a ban, or to allow for choice, may be rendered meaningless.

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