South Dakota - smoking ban one more possible appeal..

November 23, 2009 - Backers of a statewide smoking ban say they expect to be outspent by opponents in what's expected to be a hard-fought campaign after deciding Thursday not to appeal a judge's ruling. The decision makes the prospect of a November vote more likely.

However, Attorney General Marty Jackley says he and Secretary of State Chris Nelson will meet today to discuss a possible appeal. A decision is likely within a week.

Jackley said the American Cancer Society's decision not to appeal "is certainly a consideration" as he and Nelson decide the state's course. The latest development came Thursday when the American Cancer Society decided not to appeal Circuit Court Judge Kathleen Trandahl's ruling that opponents of the smoking ban passed by the Legislature and signed into law in March had secured enough valid petition signatures to allow voters to decide the matter next November, 2010. (South Dakota - American Cancer Society won't appeal judges decision..)

If, as Don Rose (bar owner against the ban) suggests, the state follows the cancer society's lead and decides not to appeal, the 2010 referendum will follow. Opponents of the ban such as Rose say this is what they've wanted all along. Rose owns Shenanigan's Pub, is a district director of the Licensed Beverage Dealers of South Dakota and was a key organizer of the referendum petition drive that ended up before Trandahl after the Cancer Society challenged the validity of thousands of signatures.

"A vote of the people is what they should have done in the first place," Rose said.
"Our deal was we always wanted to be able to let the people vote," added Mark O'Neill, president of the Licensed Beverage Dealers of South Dakota.

The Deadwood Gaming Association is another member of the coalition opposing the smoking ban. Ken Gienger is president of the group and general manager of Deadwood's Celebrity Hotel. "When we talk to customers, they say that's all they wanted, a chance to vote on this issue," Gienger said.

Mike Trucano, a Deadwood business owner who in 1988 helped lead the successful referendum that allowed gaming in Deadwood, also is a smoking ban referendum organizer. He said "win lose or draw, this is America. There is nothing more sacred than the right to vote on an issue. I think it is wise of the Cancer Society to not go forward. I'm a little disappointed in them taking the steps they've taken until now."

Referendums have a volatile history in South Dakota. Bids to ban video lottery and abortion have bitterly divided the state. Bar and casino owners will be energized even more by economic studies from other states with smoking bans that show bar or casino business dropped 30 percent, he says. Rose predicts that fear will ensure the smoking ban coalition has plenty of money to mount a referendum campaign.

Jennifer Stalley, the society's government relations director: The Cancer Society will rely on strong grassroots support from a majority of South Dakotans who want to see smoking banned in public places. She also suggests the issue will become entangled with gubernatorial and legislative races. "I think all the candidates are going to be asked to respond to it from their voters," she said. "The Legislature approved this law, and the people who supported legislators who put this law in place will ask questions of those who didn't."

Stalley and smoking ban opponents agree the referendum campaign will not begin until next year. "I don't think South Dakota wants to hear about this issue for the next 12 straight months," Stalley added.

Rose says it won't get going until after the legislative session. He's watching to see whether the Legislature when it meets early next year imposes new taxes on things such as video lottery. That could affect the strategy of a smoking ban referendum campaign, he says.

Reference: Pricey fight over ban expected, Peter Harriman (,, 11/20/2009.

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