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House Kills Steiner Hayward’s Smoke Shop Certification Bill

Rep. Brent Barton led six moderate Democrats to join with Republicans to support the cigar lobby, helping them to avoid paying any fees to the state for their certification, and perpetuating an unseemly state policy that steals money from the tobacco prevention fund and uses it to promote tobacco smoking by allowing the shops to bypass the indoor clean air act.
July 3, 2015

In a surprise move, the Gladstone Democrat, Rep. Brent Barton, led the House to defeat physician-Sen. Elizabeth Steiner Hayward’s push to get smoke shops to pay for their own certification that allows people to puff secondhand smoke in their shops despite Oregon’s Indoor Clean Air Act.

With the death of Senate Bill 416, money to certify that these shops are complying with their exemption to the Oregon Indoor Clean Air Act will be robbed from a fund aimed at keeping kids from smoking.

Barton objected to allowing the Oregon Health Authority to set the fees through administrative rule for the smoke shops, noting the poor relationship the health regulators have with the peddlers of a product known to cause cancer, albeit a legal one.

“There is an awful tension between regulators and what they regulate. They have both not done a good job of working together,” Barton said. “This fee is too broad, given the acrimonious relationship between the shops and OHA. It should be explicit in statute.”

Rep. Phil Barnhart, D-Eugene, tried to salvage the bill in his floor speech, but in general the appeals from Democrats sticking up for the policy change were anemic.

“An industry should pay for the regulatory needs of the industry,” Barnhart said.

The smoke shops are certified with compliance by an exemption from the Oregon Indoor Clean Air Act. They must have a separate ventilation system from other businesses or residences, are only allowed limited seating, and prohibited from selling food or drink. Additionally, 75 percent of their revenues must come from tobacco products.

It’s a rare day when a bill gets voted down on the House floor, and when the Senate takes a more progressive stance than the House, but such was the situation on Friday in the dying days of the session as the last bills strive to cross the finish line.

“I’m always amazed when members of my caucus support tobacco,” Rep. Rob Nosse, D-Portland, said after the vote.

Knowing the bill was in trouble, House Majority Leader Val Hoyle, D-Eugene, made a last-minute motion to push the bill from Thursday to Friday, apparently hoping her caucus could cobble together the votes to pass it, or at least it wouldn’t get caught up in the emotions of other bills in the marathon session.

Prior to that motion, another bill, Senate Bill 228, nearly died when four Democrats opposed it.  That bill raises fees on X-rays and tanning beds to properly fund the Public Health Division’s Radiation Protection Program that governs them. Sen. Chip Shields, D-Portland, had raised concerns about that bill earlier in the session but supported it when it passed the Senate earlier in the week with bipartisan support.

The following six Democrats supported the smoke shops in opposing Steiner Hayward’s bill: Barton, Rep. Paul Evans of Salem; Rep. Jeff Barker of Aloha; Rep. Caddy McKeown of Coos Bay; Rep. Tobias Read of Beaverton; and Rep. Brad Witt of St. Helens.

Hoyle technically opposed the bill, but only so she could call for another vote.

Reached after the vote, Steiner Hayward immediately said it was dead this session, although a future consideration in another session could always be possible. “I’m happy with the progress we made on tobacco control this session,” she told The Lund Report, alluding both to the tobacco control debate that didn’t lead to new laws as well as the near-universal support for regulations of the e-cigarette industry and the ban on such devices for minors.

Noting he did not support the current policy using tobacco prevention programs to regulate the smoke shops, Barton suggested a path toward compromise -- if fees the Oregon Health Authority or another state regulatory body charged were set specifically in statute, so the state agency couldn’t set punitive fee levels. Sen. Chris Edwards of Eugene, another Democrat sympathetic to smoke shops, said he would have supported SB 416 if it didn’t make the smoke shops be recertified every five years.