Montana Gaming Group

Clean Air Act applies to indoors

    We all know the history of HB643 in the 2005 Montana Legislative Session. It is the Montana Clean Indoor Air Act and imposed a state-wide smoking ban in buildings accessible to the public.
    Rather than go back over the why and how, suffice to say that businesses all agreed to not waste a huge amount of money to only wind up at a spot that we all realized was a foregone conclusion: an end to indoor smoking. In the exchange that is legislating, there were certain things included and excluded from the agreement that was HB643.
    One of those things excluded was any reference to “outdoor” smoking regulations. Thus the name, “The Montana Clean Indoor Air Act.”
    I am pleased with the apparently near universal compliance with the smoking law within the hospitality industry. I am displeased with what this compliance has cost these businesses in revenue.
    Our local health departments, with the assistance of DPHHS, did an outstanding job of supplying information on the implementation of the smoking ban to both the public and the business owners. On Oct. 1, everyone knew what was expected of them. The smokers moved outdoors.  
    My dad used to say that there are some people who would complain if they were hung with a gold rope.  In this case, I think he may be right. The scarcity of complaints filed with the DPHHS indicate virtually complete compliance among businesses in Montana. With no one smoking indoors, the complaints have now become, “They are smoking outside.”
    Revenue in the hospitality business is down nationwide. Our businesses were down prior to the smoking ban and have dipped even further since its implementation. No business, especially in this challenging environment, can afford to chase off a single customer.
    Right after my oldest son was born, we purchased a new house. I immediately banned smoking in my house. I set up a nice little table out in a sheltered corner of my deck and even bought one of those portable fire pits to keep friends and family warm. There was a little grumbling but everyone adjusted. If I had chosen to ban tobacco from my entire property, I am guessing that there would have been a few wills re-written.  
    I think every business owner has the sense, and the responsibility, to make these same decisions. They've complied with the law while trying to accommodate all their customers as best they can. They deserve much credit for this. Yet some critics would insist that an already complex and delicate situation be made even more complex and difficult.
    Beyond the necessity of reasonably accommodating all customers, there is also the potential public cost of attempting to enforce an outdoor smoking ban.
    While legislating smoking outdoors is entirely outside the scope of the law, enforcement would be a nightmare. An ordinance prohibiting smoking within 25 feet, say, of a doorway would make virtually any smoking pedestrian and many smoking drivers in violation. How and who and with what would such zealous enforcement be pursued? It would be a lot of work for a lot of people at a very considerable cost. Imagine how overloaded local courts might react?  
    In some areas of town, the sidewalk or walking mall is owned by the city.  The business has no ability to keep people from sitting on the benches, walking by, or standing around to visit.  Would the city be responsible for these smoking violations?
    In other areas of town, the business owns the sidewalk but there is a right-of-way or easement for the boulevard and/or a state highway. In these cases, the owners usually have some legal responsibility to maintain the sidewalks.  If someone were to walk down these streets while smoking, would the violation be given to each business that they passed?  
    Existing language in HB643 deals with, and bans, the infiltration of second hand smoke into a building, thus eliminating the need for redundant "distance" ordinances. Outdoor footage requirements and smoking regulations are not only unnecessary, they would be exceedingly difficult and costly to enforce.  
    Sometimes we don't need a government regulation to apply common sense.