TALLAHASSEE -- Usually a behind-the-scenes player, the tobacco industry is taking a surprisingly public stance against Florida’s proposed constitutional ban on smoking in restaurants and workplaces.

Two of the nation’s biggest cigarette makers have hired the man who successfully fought President Bush’s legal battle for the White House to represent them when the measure goes before the Florida Supreme Court. Barry Richard, a Tallahassee attorney who gained international attention as Bush’s lead attorney in Florida’s presidential vote recount, will argue before the court on Feb. 7 that the initiative should not be allowed on the November ballot because it is “misleading and politically biased.” Industry opponents say it’s rare for cigarette makers to play such an up-front role in a smoking matter. Across the nation, in state legislatures and when cities or counties consider smoking laws, the industry usually takes a back seat to trade associations or hastily formed groups that share tobacco’s goals. In Miami-Dade County, an organization named Floridians Against Increased Regulation fought strict anti-smoking ordinances in the 1980s. Similarly, a group called Californians for Common Sense led that state’s fight against tougher rules. Stanton Glantz, a public health expert from the University of California-San Francisco who has written extensively on tobacco’s strategies, said the efforts of such groups are usually closely coordinated with the industry. “That’s very new,” Glantz said of tobacco’s public role in Florida. “In the past, they’ve always allowed these front groups to do their talking.” The proposed amendment could prove damaging to cigarette makers. It would prohibit smoking in restaurants — except outdoor seating areas — and in enclosed workplaces, including employee break rooms. Exempt would be tobacco shops, stand-alone bars, designated hotel guest rooms, and home businesses that don’t provide child care, health care or adult care. “We’ve gotten involved because the initiative is related to our business,” said David Howard, an R.J. Reynolds spokesman. “We feel there is a way for smokers and nonsmokers to co-exist without this amendment.” Richard, whose usual fee is $625 an hour, is representing Lorillard Tobacco Co., R.J. Reynolds Tobacco Co. and the Cigar Association of America. He also represents a half-dozen Florida business associations opposed to the measure, including the Florida Hotel & Motel Association, the Florida Petroleum Marketers and Convenience Store Association, and the Florida Retail Federation. Richard challenges the amendment’s “factual pronouncement” that second-hand smoke is a health hazard to workers and that the measure will “protect” people from this danger. “I don’t really know or care about the business aspects of the case,” he said. “To me, it’s a ballot initiative involving clear constitutional issues, not a tobacco case.” Also expected to argue similar points before justices is Steve Metz, an attorney representing the Florida Restaurant Association, which historically resists most smoking limits. “For us, so much of this boils down to customer choice,” Metz said. “But as far as I know, this is strategy straight from the Restaurant Association. We didn’t get one penny from the tobacco industry to fight this.” If the measure passes, Florida would join California and four smaller states that have the nation’s toughest anti-smoking standards. A key hurdle for supporters comes Feb. 7, when Supreme Court justices review the ballot language of the initiative to determine whether it is constitutional. Smoke-Free for Health, the Orlando-based group leading the amendment drive, says it has collected about 500,000 petition signatures toward getting the measure on the November ballot. Not all those signatures, however, have been validated by state elections officials. To qualify for the ballot, 488,722 valid signatures from registered voters are needed. Elections officials say the group is more than halfway toward that goal. State records show Smoke-Free has raised $2 million for the campaign, with $1.4 million coming from the American Cancer Society and more than $530,000 from the American Heart Association and American Lung Association. Organizers say they chose the ballot route because they have met little success in the Republican-dominated Florida Legislature. Over the past year, state records show tobacco companies have contributed $68,500 to the Florida Republican Party and $14,000 to the Democratic Party. C.J. Drake, spokesman for Smoke-Free, said the organization is confident the measure will meet the state’s strict standard that ballot initiatives deal with only one subject and not contain deceptive language. Justices in recent years have eliminated a number of high-profile initiatives because they were considered imprecise or overly broad and violated that single-subject rule. Among the attorneys representing Smoke-Free is former Florida Supreme Court Chief Justice Stephen Grimes. “We are almost there and very eager to get this before voters,” Drake said.

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