MTA smoking debate passionate, one-sided
Pub Date: 12/1/2008
Analysis and Report
By Cole Boehler
To the obvious concern of the Montana Tavern Association Legislative and Gambling Committee members, and later the executive board, an individual business owner has asked that a legislative bill be drafted to permanently exempt taverns and casinos from the Montana Clean Indoor Air Act which was passed in 2005 and granted licensed businesses and exemption until October 1, 2009.
Darrell Keck, owner of the Shelby Inn, has asked Sen. Jerry Black (R-Shelby) to request an exemption bill draft.
The contentious issue goes back eight years in Montana for the tavern association, anti-smoking organizations, the Legislature and the courts. Most thought and most hoped it had been resolved finally with the passage of the 2005 compromise bill.
A delicate balance was achieved at the time carefully maintained and nurtured since where compromise participants agreed to defend the bill and work to ward off extremists on either side of the issue who might attempt to tamper with, break or dismantle the compromise.
It has been said there was also an unwritten caveat among compromise participants: that if any one of the partners reneged on their commitment, all parties would back away and the war would be fought all over again.
Keck's bill would be the first such overt attempt to breach the compromise, and news of it unsettled MTA members, sparking passionate discussion at the two Nov. 12 meetings.
While most owners of small businesses licensed for alcohol service or gaming would as soon been left alone entirely, it was clear a national even worldwide sea change had taken place in attitudes toward smoking and second-hand smoke.
Members of the MTA recognized they were going to be overwhelmed by a stringent citizen ballot initiative they couldn't win, a class action lawsuit with ruinous damages against those who allowed patrons or workers to be exposed to smoke, or through a constitutional court challenge that would have been expensive to defend with little perceived chance of success.
Thus, most taverns and casinos have recognized they need to change the way they are doing business. Some have already taken major steps, for example, going smoke-free and working on ways to attract those who have shunned smoke. Others have not yet made concrete moves but have been making plans to reconfigure their businesses in the future. Still others have done nothing and the impact on them of a final smoking cut-off remains to be seen.
So the MTA Legislative and Gambling Committee expressed exasperation at having the issue come up again, with licensees possibly becoming the innocent foils of a nasty public backlash, fully backed by anti-smoking forces.
Tim Carson told the committee, "I thought we had a deal. Why now? Is someone trying to destroy our industry? We need to correct this" attempt at an end-run on the compromise.
Mike Kenneally agreed, stating, "This bill is suicide. We need to oppose it publicly."
Russ DeVries told members he had been asked to support the bill. "I said 'no'. There's no way for us to break the compromise and maintain credibility."
Ralph Ferraro said, "The whole world is done with tobacco," and Kevin Head said a lot of business owners had already invested substantially and revamped busines operations to make the transition to a smoke-free status.
Tom Heisler said, "Is your business down? Then go smoke free!"
The committee voted unanimously to recommend to the full board that "MTA should oppose any changes or amendments to the original bill and will expect all other parties to the original compromise legislation to do the same."
At the full executive board meeting, Keck was present. He is a three-decade member of the association, a deeply respected past president and a walking encyclopedia of the history of and institutional memory for the MTA, which holds him in great esteem.
He was asked to explain his thinking and actions.
"I'm the 'nasty bastard,'" Keck began. "I've made arrangements for a bill to be filed to make a smoking exemption for taverns permanent. I'm the driving force. MTA is not involved. Sen. Jerry Black has agreed to carry it and We're looking for a Democrat to sign on. I've hired a lobbying firm (later revealed by Keck to be Jerry Driscoll and Dennis Iverson at a cost of $30,000).
"I was told that I prematurely showed my hand by putting the bill request in so early. That was done on purpose. I want people to know It's a grassroots (campaign) and not MTA. There's no out-of-state money involved and I'm looking for donations. I have donations from Malta to Cut Bank, from Shelby to Butte. I'm looking for $500 each.
"I was going to ask MTA to remain neutral. I will take the hit. I'll talk to any press that is fair. It's a personal property rights issue'; not a health issue I don't know anyone who goes to the bar for their health. Smokers need a place to go. Don't drive them into the closet.
"Indian reservations will make this playing field unlevel.
"If the board thinks I am out of line or embarrassing MTA, I'll resign.
"I believe we can win this in the Legislature. I don't know what will happen after that."
With that, Keck returned to his seat.
John Blair spoke up first.
"We had an agreement. This group gave It's word to not try to undo the compromise. How can you ask MTA to support this? MTA will get smeared'; the press will blame us," Blair said.
Keck responded, "I don't want MTA involved."
Steve Morris said, "I respect what you're saying, but is it fruitless if the Governor says he'll veto it?"
Keck said, "I don't know that. I don't care if MTA testifies against it. It is my bill'; there's no group behind it. I don't want hard feelings. You guys do what you need to do. It's personal for me. Friends of mine don't agree with this. But I have to do what I believe. I'll leave if you want to have a private discussion."
Staples then spoke up. "Darrell, I appreciate how up front you've been with us. Now I'll be equally up front with you. I have love and respect for you, but that doesn't enter into it. MTA already decided on this. There could be no such thing as MTA neutrality'; no one will accept that. If We're not opposed, people will feel We're backing it. There are already plenty of threats to come after bars. There is something to lose'; a lot to lose. We could fracture our leadership and (damage our credibility) with the legislature and the public.
"We got four years to make a transition," Staples continued. "Why have so many not done it? We fought over this for eight years. The issue is lost. It's been lost in all other states that have contested it. It's a tsunami. You can't win."
"I believe we can beat it with a grassroots campaign," Keck retorted.
Blair then asked, "If everyone in this room unanimously asked you not to do this, would it change your mind?"
Keck quickly said, "No, it wouldn't . It's about property rights."
Bob Fletcher then took the floor. "Darrell, you are the MTA. I don't think you should be asked to resign, but I think you should do it. You are the grandfather of the MTA'; a past president. I joined MTA to be a guy like you. I'm sorry."
Ron Jupka said, "I'd like a chance to try to run my business without smokers, as opposed to (even more punitive sanctions) that could lose me the business. I'll fight that (Keck) bill with everything I have."
Staples said, "we'd never recover if we went back on our word. Everyone said (three years ago), 'get us some time.' We got four years. Now, the time is one year away..."
"If MTA decided to not remain neutral," Keck said, "That's okay. There won't be any hard feelings."
Staples said, "But it will come down to member versus member in the halls of the Legislature. It's going to take an affirmative statement from MTA. It could be ugly. Let's try to keep it from getting personal."
At the point it was moved and seconded to accept the recommendation of the Legislative and Gambling Committee, that "MTA will oppose any changes or amendments to the original bill and will expect all other parties to the original compromise legislation to do the same."
There were only two dissenting votes, Keck's among them.
Source: The Montana Tavern Times, November, 2008, published monthly by Continental Communications, 125 W. Granite St., Suite 102, Butte, MT 59701.