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Harder to Breathe: A Glimpse at Clean Indoor Air Preemption in the 40 Largest Cities

Harder to Breathe: A Glimpse at Clean Indoor Air Preemption in the 40 Largest Cities

For our CityHealth project, we recently decided to improve the language describing our scoring criteria for each dataset topic. Sometimes when we originally draft coding questions, we are overly concerned with making sure that the language is accurately portraying the law. After researching a legal topic for weeks and reading different state laws nonstop, it’s difficult for us to take a step back and consider whether the language of a question actually makes sense to an outside viewer. It’s definitely a necessary step, especially when a dataset is intended to be published for a non-lawyer audience. But it certainly gets a little tricky when trying to simplify a complex legal topic like preemption.

Specifically, I’m trying to improve the language for our preemption questions within our Clean Indoor Air dataset. To start this process, I’m taking a closer look at the actual preemption laws affecting five of the forty cities. In our dataset, we ask about preemption in two ways: (1) whether a state law preempt the city from enacting a smoking ban; and (2) whether a state law preempt the city from enacting a stricter smoking ban. Preemption does not necessarily prevent a city from receiving a medal based on our scoring criteria; rather, a preempted city would be scored based on the state clean indoor air law that applies to the city. And as Cate explained in Clean Indoor Air Laws in the 40 Largest Cities, all of the forty cities have either a state, county or city clean indoor air law that applies to the city.

Three of the cities (Jacksonville, Memphis, and Nashville) are prevented from enacting a city smoking ban entirely. Two cities, Oklahoma City and Virginia Beach, can enact their own clean indoor air law, but it cannot be “stricter” than the state law. This acts as a sort of “de facto” preemption: the city cannot ban smoking in any locations beyond what the state has already done. So for our purposes with the CityHealth project, a city that wants to improve their medal standing but is preempted by state law is kind of stuck. They would need to lobby at the state level for stronger state clean indoor air laws or a repeal of the preemption law.

Here’s a closer look at the individual preemption laws in these five cities:

Jacksonville, Florida

Fla. Stat. § 386.209 “expressly preempts regulation of smoking to the state and supersedes any municipal or county ordinance on the subject.” The law does, however, allow school districts to further restrict smoking on their respective properties. The state clean indoor air law does earn Jacksonville a bronze medal, but any improvements would need to occur at the state level.

Memphis & Nashville, Tennessee

Pursuant to Tenn. Rev. Stat. § 39-17-1551(a), any local law or regulation of tobacco products enacted or promulgated after March 15, 1994 is considered void, with a few exceptions carved out for county government buildings, airport authorities, hospitals, utility districts, and special school districts. This law would void any laws passed by the cities of Memphis or Nashville after March 15, 1994. Interestingly enough, Memphis’ smoking ban was enacted in 1986 and Nashville’s was enacted in 1975. But the combination of these older city laws and the state clean indoor air law results in neither Memphis nor Nashville earning a medal. The state and city laws combine to allow exemptions for bars, restaurants, and long-term care facilities. And thanks to Tenn. Rev. Stat. § 39-17-1551(a), neither city is able to improve their city clean indoor air laws – any improvements would need to be made at the state level.

Oklahoma City, Oklahoma

Okla. Stat. tit. 63, § 1-1527 allows local governments to enact and enforce laws prohibiting smoking, but the provisions of these laws are required to be the same as those provided in the state clean indoor air law and certainly “shall not be more stringent” than the state law. The state legislature reasons that this will help standardize the laws that control smoking. The Oklahoma laws earned a bronze medal: while smoking is banned in public places and places of employment, there are still exemptions for smoking in restaurants and bars.

Virginia Beach, Virginia

According to Va. Code § 15.2-2831, local laws are preempted if they regulate smoking in private conferences, private workplaces, enclosed shopping centers or malls, or hotel lobbies. Virginia Beach did not earn a medal for clean indoor air: smoking is not banned at places of employment and bars and restaurants are exempted.

While the following examples did not amount to preemption by our coding standards, there were some important nuances to note:

  • Charlotte, North Carolina: Pursuant to N.C. Gen. Stat. § 130A-498, North Carolina prohibits local governments from banning smoking in hotels, tobacco retail stores, and cigar bars. These specific local preemptions did not affect coding questions tied to our scoring criteria. Charlotte earned a silver medal.
  • Philadelphia, Pennsylvania: 35 PA. Cons. Stat. § 637.11(a) preempts local governments from passing laws on smoking in a public place. But 35 PA. Cons. Stat. § 637.11(b), exempts cities of the first class from that preemption. Philadelphia is a city of the first class, so it is permitted to pass its own clean indoor air laws. These laws earned Philadelphia a silver medal.

And interestingly enough, some of these laws actually encourage local governments to pass stricter Clean Indoor Air standards:

  • Denver, Colorado: Colo. Rev. Stat. § 25-14-207 allows cities to make anti-smoking laws, as long as the law is stricter than the state law. Denver earns a gold medal for its clean indoor air laws.
  • Kansas City, Missouri: Mo. Rev. Stat. § 191.777 allows local governments to pass more stringent ordinances. Kansas City earns a gold medal for its clean indoor air laws.

What medal did your city earn for its clean indoor air laws? Find out at cityhealth!

Topics: CityHealthClean Indoor Air