Great Falls used common sense in repeal
By Ronda Wiggers
Montana Coin Machine Operators Association
At the Dec. 15 Great Falls City Commission meeting, the commission voted to repeal a city law that banned smoking within 20 feet of buildings.
This ordinance had a long history in Great Falls. It began in 1999 when Great Falls enacted their own smoking ordinance after extensive public discussion and input from tavern and restaurant owners. In 2006 the commission repealed this ordinance in order to be in compliance with the newly passed Montana Clean Indoor Air Act.
When repealing this ordinance there was discussion that the city office complex was having a problem with smokers outside one of their main entrances. City court is held immediately inside this entry and the “patrons” were smoking there while waiting their turn to visit the judge. An ordinance banning smoking 20 feet from all doors and windows was found to be the solution.
The ordinance went fairly unnoticed until 2009 when tavern owners began to construct outdoor customer areas in preparation for the full implementation of the ban Oct. 1. Some then learned their plans for decks or outdoor customer areas would violate this ordinance if smoking were allowed there.
The Cascade County Tavern Association contacted city commissioners and met with city staff in order to find a solution. In the end, it was determined that the only logical solution was to simply repeal the ordinance.
The Dec.15 hearing was conducted “backwards” with the opponents speaking first and the proponents last.
Over a dozen people appeared to speak in opposition to repealing the ordinance. Their testimony was lead by Lora Wier representing the Montana Public Health Association and Alicia Thompson with the local City/County Health Department. Their comments focused on the negative health affects of smoking and the reasons behind the Montana Clean Indoor Air Act.
A number of people spoke from the general public. Most of them simply said that they did not want to walk through outdoor smoke with their children in order to enter a restaurant or other business, or that outdoor smoke irritated their asthma.
Aaron Weissman, a business owner in Great Falls, offered the first testimony in favor of repealing the code. His testimony did not support or oppose smoking in any way. He simply pointed out that the law had been in effect for over three years and no one had ever been issued a ticket. His business is located downtown, and he knows that the ordinance has been violated every day. He suggested that it “is time to stop writing rules that we don't intend to enforce.”
Weissman further stated he felt laws that are only enforced upon complaint are inherently unfair and that when we have laws on the books that are not enforced, we diminish the relevance of all laws.
Local bar owner Doug Palagi testified that he intended to build a sheltered outdoor area that could accommodate smoking customers and it was purposely designed to move them away from his front door. However, with the 20-foot ordinance in place, he did not want to invest money in a structure that he or his customers could be ticketed for using.
Speaking on behalf of both the Montana Coin Machine Operators and the Great Falls Chamber, I questioned the structure of the current ordinance and whether it was necessary in light of state law.
The ordinance does not specify whether a violations ticket is issued to the property owner, the business operator or the smoker. It was originally placed into a section of code that dealt with business owners' responsibilities to comply with the city smoking ban. When this was repealed, there was no indication of who the ticket was to be issued to.
The code also does not designate an enforcement agency, therefore leaving it up to the city police to issue these tickets. I questioned if this was indeed a good use of their time.
Finally, there is no penalty section to this code. Therefore it defaults to the general code violation provision that results in a misdemeanor and the possibility of fines up to $500 and up to six months in jail. I questioned why smoking 10 feet outside a building would result in a more serious punishment than violating state law and smoking inside.
Great Falls Chamber of Commerce Executive Director Steve Malicott spoke about the burden of more regulation on local business. He questioned why this was necessary when the state law already forbid the infiltration of smoke into a place of business and then drew attention to a number of businesses that have spent considerable amounts of money to accommodate all their customers, including smokers, only to learn that city code does not allow them to use their investment.
During previous public discussions, those opposed to the repeal had asked for proof that this was even a problem to anyone other than casinos and bars. John Hayes, CCTA executive secretary, presented over 20 pictures of business locations where the code was either currently being violated or where considerable investment had been made in decks or shelters that would not comply with the existing code.
Hayes also testified on behalf of two local business owners that were not able to attend.
Al Metzger, the owner of a local cycle shop, shared that he and his son are the only employees at their business and he is often there alone. He is a smoker. In order to comply with the current 20 foot rule, he would have to move over half a block away from his store, leaving it completely unattended.
The manager of the Holiday Inn asked Hayes to share with the commission that he had made the entire hotel facility smoke-free many years ago. However, the hotel has 12 doors, outdoor balconies in many rooms, and windows all around the building. It is virtually impossible for management or staff to enforce compliance from both customers and his employees, Hayes testified.
The last proponent was Jim Kizer with the Great Falls Rescue Mission. A retired police officer and the new director of the mission, he offered that he is trying to break his clients of their addictions. He is also working to clean up the area around the mission. However, based on the amount of property they own and the construction of their building, there is no way that he can comply with the existing city code.
In the discussion that followed, out-going commissioner Bill Beecher moved to table the proposal and allow the new commission to research possible ways to amend the ordinance so that it worked for business owners and could be enforced. The motion died due to lack of a second.
Commissioner Mary Jolley moved a do-pass on the ordinance to repeal the footage requirements and this was seconded by Commissioner Bill Bronson.
Both Commissioner Bronson and Mayor Stebbins spoke against smoking in general but argued that this code is simply unworkable and unenforceable.
Commissioner Bronson indicated that state law already forbids infiltration of smoke into the business, therefore that should keep most business owners from allowing customers and employees to smoke right outside a main entrance.
Bronson further indicated that he felt it was wrong that the city code would have a punishment more severe than state code for virtually the same violation.
Most of the commissioners spoke to the ability of local businesses to make common sense decisions that best fit their personal circumstances.
When Mayor Stebbins called for the vote, the ordinance to repeal the 20-foot rule passed four to one.
It was good to see common sense government at work.
Happy holidays!