City Vs. State

Leigh Greden wants to ban smoking in bars and restaurants in his hometown. He is looking forward to the day when he can walk into the eatery of his choosing and come out smelling like something other than an ash tray or worrying about his lungs looking like one. But the Ann Arbor City Councilman knows there is a difference between what he wants and what will happen in the foreseeable future.

Greden says his constituents frequently approach him about the initiative to prohibit smoking in bars and restaurants. In their minds, if the state legislators can't get their act together enough to make Michigan the latest state to enact a ban why not start at the grass roots level in Ann Arbor where there appears to be a groundswell of support for such a measure.

If New York City can send smokers to the streets, why not Ann Arbor or Mt Clemens or Wyandotte? Greden loves the enthusiasm but knows the reality of the situation.

"New York is different than Michigan," Greden says. "Our state law is very strict on what we can and can not do."

Communities in a Catch-22

One of the things local municipalities can't do is ban smoking in restaurants or bars. Or so says Michigan judicial system.

Marquette outlawed smoking in restaurants in 1997, which prompted a lawsuit from local restaurateurs and the Michigan Restaurant Association. The local circuit court, state court of appeals and state Supreme Court ruled against the no-smoking ordinance, putting the decision in the state's hands. That means this issue and many others have found themselves on the backburner while the state legislature continues to cook the state budget's books, a seemingly endless process.

Smoking bans aren't the only local initiatives lost in a cloud of bureaucracy. Want to require builders to use more environmentally friendly techniques and technologies? Sorry, not at the local level. How about requiring them to support affordable housing? Nope, better luck with the state legislature.

This leaves the state in a Catch-22 situation where it
encourages its local communities to be more independent with policies like Home Rule and revenue sharing, but ties their hands in making their own decisions. This type of tall, top-down style of management is more reminiscent of the old corporate giant frame of mind where customers could have any color Model T they want as long as it's black.

Which begs the question, if individual cities want to push the envelope on certain issues whether it is smoking or taxes or sustainable practices, should they have to wait for the whole state to catch up? In Michigan, making that change usually means waiting. And changing that means waiting a long time to acquire the means to do it.

“It would have to be a radical change in the law,” Greden says. “There is not any one thing that would have to be changed. I don’t see it happening. It’s a culture thing.”

David (city) vs. Goliath (state)

Michigan's power structure is more tall than flat, so state decisions trump local ones. This centralized configuration is common in the U.S. State authority normally overrules that of local while the federal government supersedes state. But it doesn't always have to be that way at the state level.

"There are quite a few limitations," says Andy Schor, a legislative associate with the Michigan Municipal League. "There are quite a few state laws that limit what local communities can do."

Greden points out that other states, more of which are west of the Mississippi than east, give their local governments more decision-making clout. That allows nimbler and more innovative local governments while giving louder voices to citizens.

For example, he points out that a major handicap to local governments are state laws that dictate how much local government can tax and where those tax dollars can be spent. He argues these caps on taxes limit the creativity of local officials and thus their governing options.

"The way we structure them is dependent on the caps," Greden says. "A lot of the math we do is based on the state caps."

He adds that the amount of power local officials have is directly proportionate to the decibel level of the voice of the people. The resident with an issue, say cable TV rates, has to deal with less bureaucracy at the local level than at the state level. At least, that used to be the case until recently when cable regulation was switched from the local to the state level.

The same can be said with the proposed smoking ban. It's much easier for the grass roots to roll that boulder up the local hill than the mountain that is state government. Greden practically guarantees smoking bans in bars and restaurant in not only Ann Arbor but also Washtenaw County if local officials and residents could decide.

"It’s a lot easier to influence local government than state government," Greden says. "It’s a lot easier to speak to me."

One state, one law

Like so many things, the state vs. local issue isn't black and white. Empowering local government comes with its own baggage. If anything Jack McHugh thinks the locals have more power than they let on or need.

The senior legislative analyst for the Mackinac Center for Public Policy, a Midland-based free-market think tank, argues empowering local government makes doing business in Michigan more chaotic than uniform.

One law or one regulatory agency for the state is much more streamlined and efficient, i.e. cheaper, than dozens of different fiefdoms going in their own direction. He points out how many different cities have varying living and prevailing wage laws, which makes it harder for bigger companies to do business across the state. Not to mention that some local governments find creative ways to reinforce the goober stereotype of small-town officials.

"Different cities have different levels of professionalism," McHugh says. "As a result it's just not a good thing to have this balkanization (of laws and regulations)."

Smoking in restaurants is one of the many things he would not want to see balkanized by a tangled web of competing local government regulation. While many proponents of the proposed smoking ban see it as a health issue, McHugh argues it's a property rights issue.

Business owners should have the right to allow or prohibit smoking in their establishments. If consumers demand smoke-free bars and restaurants, the free market system will provide it. He points out how thousands of bars and restaurants have gone smoke free in recent years. With such choice, why force a ban?

"It's his restaurant darn it," McHugh says. "If he chooses to allow smoking it's his restaurant, not your restaurant. If you want to ban smoking start your own restaurant."

Blindly trusting the free market has its pitfalls, too. Robert Chapman, executive director of the Detroit-based WARM Training Center, a non-profit specializing in sustainable development, agrees to a point about McHugh's balkanization argument. However, Chapman adds that regulations are created "in the community's best interests."

For example, Michigan's energy-efficiency codes in regards to home building are some of the lowest in the country. Those codes are the minimum standard and usually what is built in affordable housing. The people who occupy such housing aren't very discriminating buyers with lots of options. The bottom line is the people who need the energy savings the most usually don't get it because it's not required by code. Houses could be built cheaper still if the fire codes weren't as stringent either.

"We have to ask ourselves, what is in the community's best interest rather than say let the market decide," Chapman says. "The market only works for the informed customer."

Putting it out

Ray Basham doesn't want to start his own restaurant. The state Senator, D-Taylor, just wants to be able to go into any one of his choosing and not breathe in someone else's toxic discharge.

Basham has been fighting for a law prohibiting smoking in bars and restaurants since he came into the state House in 1997 and is one of the main backers of the initiative in Michigan today. To the former smoker (less than a pack a day for 5 to 10 years) it is a black-and-white issue.

"I think smokers have rights but I believe those rights end when they go up the nostrils of someone else," Basham says.

Naturally, opponents to the bill don't see it that way. Andy Deloney, director of public affairs for the Michigan Restaurant Association, argues a smoking ban will hurt the state economically. As an example he says Casino Windsor lost revenue to Detroit's casinos when Ontario banned smoking a few years ago. He sees Detroit's casinos losing business to tribal casinos in Michigan, and tax revenues, if the state bans smoking.

To him and other opponents the current process of letting the market decide ain't broke and definitely doesn't need fixing. "They're in the business of providing the customer what they want," Deloney says. "Those that do provide it will succeed and those that don't won't succeed."

The success of the bill in Michigan is what's in question right now. Earlier this year, when Democrats took control of the state House, the bill made its way out of committee in the state House and Basham expects a vote on it by end of the year. If and when the bill is passed by the state House, it must navigate through the Republican-controlled state Senate before it can go to the governor's desk. That means the legislation still has a long way to go, but Basham remains optimistic.

"I'm the eternal optimist," Basham says. "I'm hopeful we'll not only get a hearing but a vote and a new law by the end of the year that will make everyone breathe a little easier."

Jon Zemke is the editor of metromode's Development News and a Detroit-based freelance writer. His previous feature for 'mode was Size Matters.


Courtesy istockphoto

Photographs by Marvin Shaouni

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