Prepared exclusively for BPAA by Berman and Company
October 2005

Arizona

Firms choking on smoke ban; Groups iffy on initiative petition
Mary Jo Pitzl, The Arizona Republic, October 26, 2005

The passionate and divisive issue of smoking restrictions has induced paralysis in many of Arizona’s business groups.

As anti-smoking forces are gathering signatures on petitions that would put a workplace smoking ban on the 2006 ballot, the only clear position from business groups is no position.

“I don’t think you’ll be able to find a consensus,” said Farrell Quinlan, a vice president with the Arizona Chamber of Commerce, which represents companies that collectively employ more than 250,000 people.

“We’re kind of split,” said Barry Aarons, who represents the Arizona Tourism Alliance and its 100-plus members.

“It’s not likely that we’ll take a position,” said Michelle Bolton, state director of the National Association of Independent Business.

Indecision is the biggest response to the Smoke Free Arizona initiative, being pushed by a coalition of health groups. It would ban smoking at most indoor workplaces.

As business groups weigh their positions, they are balancing the economic interests of their members with the health concerns of employees and debating whether a single, statewide standard is preferable to city-by-city restrictions. And they question whether a statewide law would create a level playing field, since Indian reservations and their casinos would be exempt and because it would mandate basic restrictions that only local governments could exceed.

The initiative falls in line with a trend that has been wafting across the nation over the past decade.

In Arizona, backers have until July to gather the signatures of 122,612 registered voters to get the issue on the November 2006 ballot.

There is speculation that lawmakers might be asked to enact a narrower smoking ban to compete with the initiative being pushed by health groups.

The clearest-cut opposition comes from bars and some restaurants, which fear that a smoking ban would cut their revenues and potentially drive them out of business.

The strongest support comes from a coalition of health groups concerned about dangers to customers and employees.

In between are businesses seeing both ends of the debate.

Some in the tourism alliance want a statewide standard, instead of the city-by-city smoking restrictions that are emerging, Aarons said. 

But others question whether that really would create a “level playing field,” since cities and towns would be free to enact stricter standards. Besides, the initiative does not extend to casinos on Indian reservations, since they are sovereign nations.

The focus is on the effect on bars and restaurants, since many cities have banned smoking from workplaces.

The Arizona Restaurant and Hospitality Association has yet to take a position.

Even the Arizona Licensed Beverage Association, which philosophically opposes smoking bans as an infringement on property rights, is still open to persuasion. The group has mailed surveys to more than 3,000 liquor-license holders and will hold meetings around the state before deciding what to do about the anti-smoking initiative, said Bill Weigele, board president.

In Tempe, voters approved a ban on all indoor smoking in spring 2002. City sales-tax collections haven’t suffered for it, said Mary Ann Miller, president and chief executive officer of the Tempe Chamber of Commerce. 

But the figures mask the losses to some individual businesses that did see a drop-off in customers, she added.

Studies in other states and cities with smoking restrictions or bans have shown no overall dent in revenue, although critics say the studies gloss over the harm to subgroups in the liquor and restaurant industry, such as taverns and pubs.

Miller said the chamber doesn’t take positions on initiatives until they qualify for the ballot. 

“There are people who really believe it should be up to the market,” she said. “And there are others that feel that if others have to do it, they’re fine.”

Count the central Phoenix pub George and Dragon squarely in the free-market camp.

“If you don’t want to go somewhere where people smoke, don’t go there,” said Keith Jackson, the pub’s general manager. “It should be up to the patron. All it (a smoking ban) is going to do is what it did in L.A.: You’re going to have a bunch of people out on the sidewalk flicking their cigarette butts into the street.”

Patrons Andrea Guardado and Tracie Smith said they frequent George and Dragon because it allows smoking.

“That, and the food’s good,” Smith said as she lighted up a Marlboro after a recent lunch.

Guardado said she views smoking as an individual choice, noting that the restaurant has a separate no-smoking area.

“This is my one and only vice,” Guardado said, as she waved a Marlboro Light in the air. “I don’t break into banks, I don’t murder people, I don’t take small children.”

Bill Pfeifer, chief spokesman for the anti-smoking initiative, said Guardado should realize that her cigarette smoke is hurting the health of restaurant and bar employees, who don’t have the luxury of moving to a no-smoking area.

“Everybody deserves to be protected in a work environment,” said Pfeifer, who also is executive director of the Arizona chapter of the American Lung Association. “Just because someone’s a bartender doesn’t mean they don’t deserve protection.”

But bartender Laura Middleton hired on at George and Dragon knowing full well smoking was allowed. A smoker herself, she said if a ban were put in effect, the pub would suffer.

Illinois

Restaurant Group to Fight City Smoking Ban
By Fran Spielman, Chicago Sun-Times, October 1, 2005

    The Illinois Restaurant Association vowed Friday to continue the fight for a "smoking license" to provide Chicago restaurants, bars and bowling alleys willing to pay for the privilege a way to get out from under a proposed anti-smoking blanket.
     One day after anti-smoking advocates laid claim to the 26 City Council votes they need to ban smoking in restaurants, bars and virtually all of indoor Chicago on April 1, Illinois Restaurant Association President Colleen McShane denied they had the votes and insisted that the battle would go on.
     McShane denounced as inadequate the "compromises" that Health Committee Chairman Ed Smith (28th) and an anti-smoking coalition led by the American Cancer Society claim.
     They include: a six-month phase-in; allowing smoking at sidewalk cafes by reducing--from 25 feet to 10--the ban on smoking near building entrances; and a proposed "hardship exemption" for restaurants and bars that can prove sales dropped by 15 percent after one smoke-free year.
     "That's not a compromise. It's a license to kill jobs," McShane said.
     McShane pointed to what happened at Jack's Restaurant when Skokie banned smoking. An estimated $100,000 was lost and "an entire third shift" was laid off after less than a year, she said.

Natarus behind other proposal

Pressed to define a "real" compromise, McShane talked about the proposal by Ald. Burton F. Natarus (42nd) to allow restaurants, bars and bowling alleys to apply for a smoking license with revenue--$250 for every $500,000 in annual sales-tax revenue reported--earmarked for smoking cessation programs.

Chicagoland Chamber of Commerce President Jerry Roper agreed that a smoking license is the only fair way to resolve the "emotional issue." "They feel they have customers who want to smoke, and they want to accommodate them," Roper said.

The Sun-Times reported this week that smoking would be banned as of April 1 in virtually all of indoor Chicago , under an ordinance expected to be approved by a City Council committee Wednesday.

The owner of one of Chicago 's legendary steak joints prepared for what he called the "inevitable."

Tony Durpetti, owner of Gene & Georgetti's, 500 N. Franklin, acknowledged that a ban would hurt his bar business but said it may not be that bad. "They can't go anyplace else and smoke. . . . It's not like we're gonna lose customers [to a place] down the street," he said.

………………………………………

Showdown on city smoking ban delayed

By Fran Spielman,Chicago Sun-Times, October 6, 2005

Last-minute intervention by a top mayoral aide and the chief sponsor's desire to make everybody happy Wednesday temporarily derailed a high-stakes showdown on a plan to ban smoking in restaurants, bars and virtually all of indoor Chicago.

Anti-smoking advocates had a quorum and insisted that they had the votes to pass the long-stalled ordinance in the City Council's Health Committee with only minor changes.

But that was before the mayor's legislative point-man, John Dunne, had a conversation with Health Committee Chairman Ed Smith (28th), chief sponsor of the anti-smoking ordinance.

Dunne told Smith that the Mayor's Office of Intergovernmental Affairs had gotten calls from aldermen and restaurant owners who were complaining they "didn't have time to review" the changes Smith had made to his sweeping ban.

They include a six-month phase-in with an effective date of April 1, allowing smoking in "public walkways" and at sidewalk cafes by reducing--from 25 feet to just 10 feet--the ban on smoking near building entrances, and a proposed "hardship exemption" for restaurants and bars that have the gross receipts to prove that sales have dropped by at least 15 percent after one smoke-free year.

Dunne never specifically asked Smith to postpone a Health Committee vote. But the implication was clear.

Wednesday, Smith obliged. He put off a vote until Oct. 26 to give Illinois Restaurant Association President Colleen McShane a few more weeks to come to the table with a meaningful compromise.

If there's no deal by then, an anti-smoking bandwagon that has been gaining steam across the nation will leave the station--with or without restaurant owners, he said.

"When this thing is over, no one is ever gonna . . . say that Ed Smith did not allow us an opportunity" to come to the negotiating table, Smith said. "If we can agree, fine. If not, we're gonna move on."

McShane said she would continue to push for two compromises floated by the restaurant industry and rejected by anti-smoking advocates: allowing restaurants, bars and bowling alleys to apply for a "smoking license," or banning smoking until 9 p.m. , when patrons would be free to light up.

Daley denies role

Anti-smoking advocates who showed up in force hoping for a triumphant ending to their $1.5 million campaign left City Hall bitterly disappointed.

"All we know is we had the votes going into this committee, and we have the votes in the full City Council. Other people need to connect the dots for us. Something happened [to stop it]. We don't know what. . . . You'll have to ask the mayor," said Steven Derks, CEO of the American Cancer Society.

Despite the finger-pointing, Daley categorically denied that he was behind Wednesday's delay.

Daley continued to hold out hope for an elusive compromise that would somehow exempt free-standing neighborhood bars and well-ventilated bars attached to restaurants.

"Everybody's for a form of smoking ban. . . . Everybody wants to be healthy. Fine. But [opponents] have a right to present their position," Daley said.

Ald. Pat O'Connor (40th), the mayor's unofficial City Council floor leader, predicted that little would change before the Health Committee meets again.

After doing his own independent head count, O'Connor said there is some sentiment among aldermen for helping free-standing and attached bars, but virtually none for either a smoking license or for allowing restaurant smoking after 9 p.m.

"The only potential avenue [for compromise] is to find a way to separate bars from restaurants," O'Connor said. "How that's done or if that's done will rest on the creativity of that industry. Unless they come in with something that is fairly new and unique, you're looking at" Smith's ordinance passing Oct. 26.

Berman and Company Note:

The Illinois hospitality industry is developing an alternative proposal. If you would like more information, please contact Kristen Eastlick at (202) 463-7100.

MONTANA

Oct. 1 Smoking Ban Signals Culture Shift, New Era for State
By Keila Szpaller, Great Falls ( Montana) Tribune, September 25, 2005

In just days, a statewide smoking ban takes effect in what was once considered Marlboro Country.

The law, effective Oct. 1, covers enclosed public areas: schools, colleges, restaurants, stores, offices, trains, buses, auditoriums, arenas and--eventually--bars and casinos. Offenders face misdemeanors and fines.

Many places, such as schools and shopping malls, already prohibit smoking. Still, the Clean Indoor Air Act sets a clear course for the future of smoking in Montana. News of its passage rippled across the United States.

Here, smokers confront a dwindling number of venues that lawfully allow them to light up. Owners of taverns, bars and casinos face a mandate to go smoke-free within four years.

"It's going to jump on us fast," said Scott Merry, bartender at That Bar in Great Falls. "Four years ain't nothin'."

Across the country, the sentiment was effusive.

If Montana could do it, who couldn't?

"It gives other states hope," said Cathy Callaway, spokeswoman for the American Cancer Society.

 
Who’s come a long way now?

In the early 1960s, Harry Wilcox's mom feared his teeth would rot from all the Coca-Cola he drank. She begged him to give up Coke and take up something less harmful. Wilcox, 60, sat remembering in a booth at a smoky — for now — diner in Great Falls. His mother suggested he take up smoking. That was before 1964, when the surgeon general's office issued its first report warning of the dangers of tobacco.

That was a long time ago.

Since then, Wilcox has smoked Marlboros, USA Goldens, little cigars called Southern Classics and generic cigarettes. He consumed as many as three packs a day.

Since then, the surgeon general's report on smoking and health grew more insistent: Smoking kills.

Since then, tobacco companies brought home the bank. In 1999, Philip Morris Cos. revenue topped $78 billion, and its signature products were well known to have, as the industry euphemistically admits, health risks.

Tobacco use remains the number one cause of preventable death in the United States.

The World Health Organization estimates tobacco kills 4.9 million people each year--the equivalent of one in 10 adult deaths worldwide. More than 12 million Americans died from smoking since that first report from the surgeon general, according to a 2004 American Lung Association report. In Montana, 1,400 people die annually from smoking, according to the Department of Public Health and Human Services.

But the tobacco industry is now on the defensive.

For more than a decade, anti-smoking advocates have put the squeeze on Big Tobacco. States raised cigarette excise taxes as high as $2.46 a pack (in Rhode Island ; Montana sits at number five with $1.70) and embarked on media campaigns that undercut Big Tobacco's messages that sell cool.

R.J. Reynolds shelved Joe Camel. The Marlboro men died. David Millar, Jr., died of emphysema in 1987. In 1992, Wayne McLaren died of lung cancer.

States and other government jurisdictions banned indoor smoking.

In 1988, California approved a ban similar to Montana's. New York followed suit in 2003. One year later, an entire country, Ireland, banned indoor smoking, even in pubs. This spring, San Francisco took the ban outside and banned smoking in city parks. But that's San Francisco. New Jersey is considering two bills that make people's cars off limits to smoking.

Why ever Montana?

Today most states have some kind of smoking restriction in place. A handful have sturdy bans.

Even here, where the image of Montana as the last vestige of independent, free-spirited individuals who smoke and drank with impunity persists.
     "And yet, here we are," said Rep. Tim Dowell, who sponsored the bill.

Here we are, face to face with a statewide smoking ban. We did not arrive here by accident.

Montana, a state where one in five people smoke, took baby steps in this direction for years. Five years ago, Great Falls approved an indoor smoking ban, with exemptions. So did Missoula, Helena and Bozeman. The Blackfeet Reservation's smoking ban slipped into place one month before the statewide ban does. The Fort Peck Reservation's ban takes effect at the same time the state's does, and it's more stringent.

Savvy bar and restaurant owners caught whiff of that trend.

Jim Dea, one of three partners that own Jaker's, regularly travels to restaurants in Denver, Phoenix and Kansas City to keep tuned to developments in the industry.

In the late 1990s, he saw a change.

"We noticed that, boy, they were all non-smoking," he said.

So Jaker's followed suit in its dining room in early 2000. A year and a half later, Dea proposed that Jaker's ban smoking in the bar.

"I really had to talk (business partner) Jake into it. He fought me on it," he said.

This summer, Jaker's banned smoking in its gaming room and became totally smoke free.

It is at least three years ahead of the curve.

In 2005 Montana was one of six states that passed smoking bans. State senators approved the ban 40 to10 at the end of the session.

"It was one of the more remarkable events in the Senate," Dowell said.

Seeing Montana approve the ban invigorated anti-smoking advocates nationwide.

"I was just recently in Wisconsin, and I heard some folks say, if they can do it in Montana, we can do it here," said Annie Tegen, senior program manager with Americans for Nonsmokers' Rights, a Berkeley, Calif.-based nonprofit.

But the ban bewildered one tobacco industry leader.

"It is frankly somewhat surprising that a state that sort of has a reputation for rugged individualism would want to pass a law that tells owners and operators they can't accommodate smoking," said R.J. Reynolds spokesman John Singleton.

Those with a bird's-eye perspective on the lifespan of smoking in this country see that it's gradually fading.

Terry Pechacek, Ph.D., associate director of science in the Centers for Disease Control and Prevention's Office on Smoking and Health, has contributed to the annual surgeon general's report since 1979.

"The social wave of change is now nearing a tipping point," he said. "These types of changes...are not atypical anywhere anymore."

Credibility, cancer, control

A number of factors converged to bring the country to this point. People witnessed loved ones die of lung cancer. Tobacco companies' credibility eroded. Personal accountability waned in favor of government control.

This summer, the nation mourned the death of a cherished public figure. On Aug. 7, ABC news anchor Peter Jennings succumbed to lung cancer.

Calls into state Quit Lines reached record highs the following day.

In Montana, the number of calls Aug. 8, 9 and 10 rolled in at more than twice the number received the previous week, said Quit Line spokeswoman Epi Mazzei, who oversees Montana, Colorado, Ohio and Idaho Quit Lines from Denver.

Meanwhile, society no longer trusts Big Tobacco, said Tegen.

And Big Tobacco's influence gives way to Big Government.

That trend isn't lost on many. People grumble: Government tells them to buckle up, slow down, and it tells them what to eat.

Those who oppose what they see as the government's infiltration into their personal lives do so vehemently.

"I don't want your help," said 68-year-old Harry Jacobs, an unapologetic smoker sitting at a bar at a local diner with a pack of Roger Lights tucked into his T-shirt pocket. "I'll take care of me. That's life, liberty and the pursuit of happiness. And you're screwing with my happiness."

Details still hazy

Rep. Dowell recalled one testy legislative session. An impassioned opponent of the ban held up a "liberty tree" in house chambers, "And he cut branches off," Dowell said.

On Oct. 1, the Montana Clean Indoor Air Act takes effect. The law expressly forbids indoor smoking in public places. With some of exception, many of these places banned smoking years ago.

The prohibition hits bars, casinos and taverns hardest. For the most part, those establishments have four years to comply.

How they are expected to do so, and generally, how the law will take effect remains unclear.

"I can't give you anything hard and fast," said Georgiana Gulden, supervisor of Montana Tobacco Use Prevention Section.

She expects that the rules, designed to show how the law will work on the ground, will be finalized at the end of October. Todd Harwell, chief of the Chronic Disease Prevention and Health Promotion Bureau, which oversees the tobacco prevention section, confirmed that projection.

That could be complicated, however, by the resignation of Gulden just shortly after she was interviewed for this story.

Meanwhile, the law goes into effect on the first, and proprietors are anxious.

At Tracy's 24-Hour Family Restaurant, an icon in downtown Great Falls, waitress Lila Anderegg serves mostly smokers. She threw up her hands behind the bar.

"What are we supposed to do? Police this?"

Well, not technically. Policing remains in the hands of various agency officials. But penalties come in the form of misdemeanor charges. After three warnings, Anderegg could face a misdemeanor if she doesn't "police this." (County attorneys may penalize "a person who owns, manages, operates or otherwise controls a public place," the law reads.)

Already, smokers and proprietors of bars and restaurants mull over ways to either deal with the law or creatively circumvent it.

"I smoke outside my house preparing for this," said Angela Matthews, of Great Falls.

At Tracy's, owner Nick Redeau looks at the possibility of turning the 24-hour diner into a private club--where he believes he'd be able to write his own rules. But that option presents a mound of paperwork, he said.

For a while in California , some bars famously ignored the edict to go smoke-free. Scott Merry, at That Bar, said he may turn his head when he sees smoking and "let it slide until we're forced."

Advocates of the ban predict the law will be "self-enforcing," and in one case, they are already right.

Bob Daily owns Fast Car Wash, in Great Falls. He's never liked smoking, but he hasn't wanted to ask his employees to smoke only outdoors. The law lets him off the hook.

"It was great for me, because I'm not the bad guy," he said.

Small towns, small budgets

Mom-and-pop bars, many in rural Montana, may prove most vulnerable to the smoking ban.

Tax receipts in states that have bans show no drop in revenue for the hospitality industry — and in some cases show revenue boosts, according to data from Americans for Nonsmokers' Rights. Yet individual bars report significant drops.

Rich Miller, executive director of the Montana Gaming Industry Association, explained the discrepancy. Small, homegrown businesses lack the revenue streams to sustain a short-term lull in business while customers adjust to non-smoking establishments.

So chains infiltrate, he said. Mom-and-pop stores fold.

At Les' Bar, in Power, population 171, license plates that read "BEERS" and "BEER BLY" hang from a wall behind the bar.

Leah Lehnerz, a curly-haired blond mother who left her minivan running outside, wasn't in for beers. She ordered a six-pack of soda and a pack of Juicy Fruit while her two tow-headed boys shared a barstool in front of a glass case stocked with candy. Lehnerz brings her boys in for dinner, she said. Smokers voluntarily put out cigarettes, or she asks them to do so. They respect her kids, and in turn, she doesn't bring her family in when there's a crowd.

One cold winter, her little girl rode her bicycle down Power's main street to visit a friend. When she hopped back on her bike to ride home, the wind blew too cold. Les' Bar was on her route home. She was just a kid, but she walked in, asked for the phone and called her mom to pick her up at the bar.

If Les' Bar closes, Power loses more than a drinking establishment.

At Mike's Club, a dusty tavern with stringy carpet in Dutton, a handful of people sat at the bar early one afternoon. Owners Mike and Pat Bayala talked with customers and poured drinks.

"It'll kill us either way," said Mike of the ban. "Second-hand smoking will kill us, or the smoking ban will kill us."

It might damage the town's youth, too.

Dutton offers its teens little in way of entertainment. Mike's Club serves as the surrogate youth club.

"This is all we have," Mike said.

Kids shoot pool, throw darts and hang out.

With the law, the couple must choose to ban teens or ban smoking--one or the other--immediately.

They'd ban teens, they said. Those teens spend little or no money.

Check, checkmate

In six years since the tobacco settlement suit was settled in 1998, tobacco advertising rose 84 percent in this country, according to the CDC. That industry spends $49.9 million in marketing in Montana each year, according to the state health department.

With a ban in place, Tegen, with Americans for Nonsmokers' Rights, expects to see tobacco companies flex a little more muscle in Montana.

"We're going to see Big Tobacco in there fighting harder than ever," she said.

But Montana might be a lost cause.

Again and again, Montanans demonstrate strong support at the polls for anti-tobacco measures. Legislators raised the tobacco tax from 18 cents to 70 cents in 2003. Then, a citizen's initiative placed on the 2004 ballot raised the tax another dollar. Voters passed the initiative by more than a 30 percent margin.

"One could argue that there's not much more we could do in Montana ," said Reynolds' Singleton.

Those who prefer to let a free market dictate business decisions sound resigned to make the ban succeed despite their distaste for it.

"We've got four years to see if we can't make this work," said Mark Staples of Montana Tavern Association.

If it doesn't, a citizens' initiative that would ban indoor smoking waits in the wings. It doesn't give bars and casinos a four-year exemption, and it would very likely pass.

"We have the trump card," acknowledged Dick Paulsen, executive director with American Lung Association of the Northern Rockies.

He'd prefer not to use it, he said.

‘That’s a Montana bar’

At That Bar one recent afternoon, at least 15 ashtrays lined the bar top and smoke filled the air.

"You smell the stale beer, the stale cigarette smoke," said Merry, almost with longing. "That's a bar. That's a Montana bar."

It's not a Montana bar for long.

If Montana reacts to a ban like other states have, tobacco consumption and smoking rates will fall. More people quit or simply smoke fewer cigarettes. In California , the smoking rate fell to 15.4 percent last year, a historic low. Montana currently sits roughly at the national average, 20 percent.

Harry Wilcox, who turned to smoking years ago to save his teeth, will try to quit.

"Gotta get off them suckers," he said.

Gulden, in the department of health and human services, voices optimism for Montana. This year, the state set in place the ingredients to successfully curb smoking: an indoor smoking ban, funding for prevention programs and a healthy cigarette tax.

"If we're able to maintain level funding, I think we're going to be in good shape," she said.

At Cattin's Family Dining, where Wilcox smokes, the stale air that clings to the walls and seeps out of the building will clear. Maybe some new families will visit and turn into regulars.

Eventually, the presence of smoke indoors will become as rare and out of place as the presence of chewing tobacco spittle on the floor, Pechacek said.

Wisconsin

Reality Check: What Survey Should You Believe About Smoking Ban? One Poll Says Most Oppose Ban, Another Poll Says Most People Support Ban

Channel3000.com/WiscTV.com, September 1, 2005

Two recent surveys show very different levels of support for the smoking ban in Madison . Colin Benedict investigated to find which survey was most truthful.

MADISON, Wis.--If you saw the two polls last week on Madison's smoking bans, you probably were left scratching your head. How many people support the ban? And if two pollsters ask the same thing, why do they get two very different answers?

Chamberlain Research:

• 49 percent favor ban
• 42 percent oppose ban

The Mellman Group, Inc. 

• 68 percent favor ban
• 29 percent oppose ban

The Melmann Group, based in Washington, D.C., said 68 percent support the smoking ban and 29 percent oppose it.

This "needs clarification," Benedict reported. The short answer is they aren't asking the same people, but more importantly, they aren't asking the same questions.

News 3 asked UW pollster Don Ferree, who operates the Badger Poll, to examine both surveys, and he found glaring differences.

"None of the questions look on their face that they're clearly inaccurate," said Ferree, UW pollster who operates the Badger Poll. "Now, whether they were hoping for a result involves mind-reading."

Look at the exact wording yourself: Chamberlain, the survey that found Madison closely divided (Chamberlain: 49 percent for, 42 percent against), told its responders, "The Madison city council recently passed a smoke-free ordinance which banned smoking in bars, restaurants and bowling alleys as of July first. do you support or oppose this ordinance?"

"So there's a very tight focus on the most contentious parts of the ordinance--those having to do with eating and drinking in certain public places," Ferree said.

Ferree said tight wording might exclude those that support the broader effects of the ordinance, such as no smoking in offices or public buildings.

It's a difference that becomes clear when you look at the Melman wording, which found 68 percent for, 29 percent against the ban: "As you may know, earlier this year, a law went into effect prohibiting smoking in most indoor public places in the city of Madison, including workplaces, public buildings, offices, restaurants and bars. Would you say you favor or oppose this law?"

"They're asking people whether they favor a broader ban that is essentially talking about banning smoking in public," Ferree said, "as opposed to banning smoking in eating and drinking establishments."

The two polls also ask two completely different groups. Chamberlain polled Madison residents, using a random-digit dial; Mellman called only registered voters in Madison.

While this could have been made a big difference, it appears not to be a factor. Mellman had older respondents, but all age groups voted roughly the same way in both polls.

"It's not likely that accounts for very much difference," Ferree said.

What about the timing of the poll? It's been suggested Chamberlain's poll was influenced by the large downtown anti-ban rally Aug. 16, which was in the news.

Chamberlain asked their questions from Aug. 17-19. Ferree said this appears to be not a factor. For one, Mellman conducted its poll after Chamberlain, not before--from Aug. 20-23.

Most people surveyed said they've been following the issue closely, meaning one event isn't likely to dramatically sway public opinion.

Ferree said none of the questions is either poll are clearly inaccurate and neither poll was clearly biased.

"If anything, you might suspect that the Chamberlain survey would somewhat understate support for the ordinance, and the Melman survey would somewhat overstate support for the ordinance at least as it's focused on restaurants, bars and the like," Ferree said. "In some ways, perhaps the truth is somewhere in between."

Ferree said neither poll can accurately predict a possible referendum because, for one thing, no date is set, and also because so much depends on the wording and that hasn't been crafted, either.