Ordinance to ban smoking still up in the air

SAN ANGELO, Texas — The smoke-ban saga continues and could carry on after the November election. Here’s a quick summary of what’s happened, the latest update and a rundown of what might come next.

Per City Charter guidelines, the City Council has taken public comment on the version of the ordinance for which Smoke-Free San Angelo collected petition signatures.

That ordinance calls for an across-the-board ban of smoking in the city, including bars, restaurants and outdoor sports arenas. The charter also allows the city to create its own version of the ordinance, which it did after meeting with Smoke-Free representatives to talk about possible changes.

The version it came up with, which the City Council approved at its June 1 meeting, included an exemption of adult-only (i.e. 18 and older) bars from the ban, along with several more minor changes.

The Smoke-Free San Angelo committee rejected the city’s version of the ordinance at a meeting Thursday evening, and it will request its original version be put on the November ballot. The group had said it was open to negotiations but would not accept an ordinance that exempted bars because it believes in protecting all people from the harmful effects of secondhand smoke, and that it’s unfair to place the ban only on some businesses.

Bernay Sheffield, a committee member and owner of Zentner’s Daughter Steakhouse, said it should be “all or nothing” and that a partial ban would create an “unlevel playing field” for businesses — especially for restaurants with bars in them, which would have to be nonsmoking under both versions of the ordinance.

Even though the group didn’t accept the city’s recommendation, the City Council could respond in several ways to either counter the ordinance or change it to a version many have said is a true middle-of-the-road compromise.

Although some council members would probably really like to use the council’s power to pass the city version of the ordinance before the November election, the council has collectively supported the idea of letting voters decide. That would be one option, though.

Other options discussed by some City Council members have been to amend the ordinance after — and if — it is passed, or to put the city’s version of the ordinance on the ballot to let voters choose between the two versions.

City Councilman Paul Alexander said he thought the latter option would be the most likely to happen. Councilman Kendall Hirschfeld has also said it was an option, but some have said the council doesn’t have the authority to place an ordinance on the ballot.

Jim Ryan, a local government blogger who attends most council meetings, said he couldn’t find any part of the City Charter, election code or local government code in Texas state statute that says the council can put an initiative or referendum item on the ballot. But the absence of this authority is understandable because the council has the authority to simply pass an ordinance at any time, he said. After all, the initiative and referendum process is normally reserved as a way for citizens — not city councils — to try to get legislation passed.

“One of the reasons is, why would the city be given that authority? The city can, at any time it chooses, do this by a vote of 4-to-3. It’s not something they need,” Ryan said, adding that there may be some legal precedent that may grant this authority, but he hasn’t stumbled across one.

While the law may not explicitly allow the council to do this, what would stop them from it? It seems plenty of city- or council-generated legislation has been put to vote.

The council could also choose to amend the ordinance after — and if — it passes. Ryan said the aforementioned lack of authority for council to put an ordinance on the ballot is made even more unnecessary because the council has this option available to it. And if the committee’s ordinance doesn’t pass, the council won’t have to do anything. Neat.

What exactly would happen if both versions end up on the ballot and both pass? That’s also not explicitly addressed in the charter.

I discussed this earlier in the week with City Clerk Alicia Ramirez, who said if council is indeed allowed to put the city ordinance on the ballot and both pass, both ordinances would be null.

“You can’t pass some things that contradict each other. There’s no way to enforce it because it’s either yes or no,” she said, citing a conversation with the Secretary of State’s office.

You might be wondering why the city can’t give an answer to the legality speculation, but they don’t know either — something Ryan suggests is due to the rare use of, and unfamiliarity with, the initiative and referendum process. I agree.

The city said Friday afternoon it could not confirm whether council is allowed to put the city version of the ordinance on the ballot and that it was researching the option to see if it is legal.

Ramirez and City Attorney Lyssia Bowling were out of the office Friday, so I’m sure that didn’t help speed things along. I will let you know what I find out.

By Kiah Collier
San Angelo Standard Times, June 26, 2010

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