'Reasonableness’ sought at smoking rules hearing
Pub Date: 11/1/2005
Analysis By Cole Boehler
The tavern and gaming business has been through some protracted skirmishes. The effort to develop an automated accounting and reporting system for gaming machines began in 1994'; with luck that process will be completed by 2007 13 years to resolution.
The smoking wars heated up in earnest in the late 1990s with some attempts to control smoking in public initiated at the state level, followed by efforts at the municipal level.
A total ban implemented by Helena's city commission in 2002 resulted in a ballot initiative that was strongly supported by Helena voters. Then there were justice and district court cases, more legislation in 2003, suits argued before the state's Supreme Court and finally, in 2005, another legislative battle that yielded a compromise law.
In its final iteration, the new smoking law calls for all buildings accessible by the public to go smoke-free Oct. 1 of this year, with businesses licensed for gaming and liquor to follow suit by 2009. Pending any further disruptions, the state may put this one to bed in just 10 years.
But passing a law is the first step in implementing new social policy. Administrative rules must be written, then the rules must be put into place with policy guidelines, and finally enforcement must commence.
The rules implementing HB 643 were drafted at the end of August. The draft rules were subjected to a public hearing Sept. 30. Meanwhile, the law took effect Oct. 1. Much remains in the gray area between a rules draft and actual enforcement.
But that is not necessarily objectionable to those who negotiated the compromise between tavern and health interests. Both sides realized and expected that the law would need time to be made to work reasonably. It appears the moderates do not want extreme interpretations or enforcement.
The goal of both is obviously smoke-free workplaces by 2009 and not a lot of acrimonious in-fighting in the meantime.
The draft rules were relatively simple and straight forward, just as envisioned by the framers of the compromise. (For a detailed accounting and analysis of the proposed rules, see the Sept. and Oct. 2005 editions of the Montana Tavern Times or go to and search under "smoking issues.")
Essentially the rules called for a process whereby licensed premises could apply for an exemption until 2009, as long as 60 percent or more of gross business revenues came from gaming and liquor. The rules also laid out an inspections, enforcement and penalties procedure.
Members of the public under the age of 18 cannot enter an area where smoking is allowed and smoke cannot be allowed to infiltrate into non-smoking areas of the building.
Some close observers of the smoking wars were concerned when the state announced the Sept. 30 rules hearing would run three hours instead of the initially announced two. They feared the hard-liners on both sides were planning to high-jack the hearings for more of the lengthy harangues all had become accustomed to during the legislative hearings.
But they need not have worried: the hearing lasted only one and three-quarters hours. Even the usually prolix smoking foe Dr. Richard Sargent kept his remarks relatively brief.
The Department of Public Health and Human Services, responsible for drafting the rules, was also responsible for conducting the public hearing. They utilized the state's Metnet system of remote hearings sites scatted across the state and linked by live video.
The sites were at the DPHHS building in Helena, and on college campuses in Billings, Bozeman, Butte, Dillon, Great Falls, Havre, Kalispell, Miles City and Missoula.
From viewing the video feeds, it appeared there were five to 15 attendees at each site with the exception of Helena, where there were somewhat more.
Some testifying cheered the law and its intent while urging the rules be adopted just as drafted. Others clamored for strict, aggressive and vigorous enforcement and for more detailed and stringent rules defining every aspect of the law in minutia.
Several said the rules should specify additional signage.
One Ravalli County health official suggested raising fees on hospitality businesses to offset the costs of enforcement.
Dick Paulson, representing the Lung Association of the Northern Rockies said he felt the rules "reflect the reasonableness we all wanted to achieve," and he encourage no further modifications.
Cliff Christians of the American Heart Association said the legislative record demonstrates an intent to implement the law and rules in a "reasonable" fashion and said he was concerned that the rules are already late and amendments would make them even later.
"We're proud of what we've accomplished," he said. "Let's get on with this'; let's not pick it to death. Let's adopt the rules as promulgated."
A Helena attorney, Jonathan Motl, argued for amending the rules draft to create specific standards and tests to minutely define infiltration.
Further, he wanted amended language to precisely define whether an area or an establishment could be exempted, what constituted an establishment and so on. Apparently he feared someone under 18 entering a convenience store might be exposed to infiltrated smoke if there was a casino under the same roof.
Mark Staples, representing the Montana Tavern Association and a compromise negotiator, said the administration and legislature were involved in getting the bill passed as written, and both supported a common sense approach to enforcement.
"The bill would not have come out of committee without these assurances" of reasonableness, he said. The bill has some open ends, he acknowledged, because everyone involved wanted reasonable enforcement "to get us to 2009."
"We can make this work if we work together, apply the rules reasonably, follow the legislative intent," he said, but not if an extreme interpretation is adopted that would "fly in the face of what the legislature and the governor signed off on.
"We can't have someone demanding that separate smoking areas also have to have separate ventilation, separate entrances, separate bathrooms. If that happens, we really don't have an exemption at all and we'll not be given the opportunity to work in good faith.
"The rules as proposed are workable'; they contain the essence of the law. The hard line was rejected by the legislature and should be rejected now."
Representative Bob Bergren, who sponsored a bill to exempt all licensed premises, said support for HB 643 was "precarious" enough without introducing extremist views into the rules. "If the legislative intent is not met in the rules, you may as well hang them up," he said.
The Montana Chamber of Commerce went on record in support of the rules as drafted, and so did Rich Miller representing the Gaming industry Assoc. and Ronda Carpenter Wiggers of the Montana Coin Machine Operators Assoc.
Some licensees asked questions while others, well after the fact, were protesting the law itself.
C.B. Pearson of Missoula suggested licensees be subjected to third party financial reviews to ascertain they meet the 60 percent income rule and asked that rules allow for anonymous complaints to be filed.
And Dr. Sargent suggested any measured evidence of infiltration should mean an automatic suspension of the exemption, then submitted studies which he said would define infiltration, and which proved stopping infiltration is impossible.
Rep. Art Noonan said he voted for both the ban and for the exemption. "If the notion of compromise is lost in the rules process, then we'll have to go back to the political process. Without a true exemption, the ban would not have passed," he said.
It is not clear when the final rules will be published.
Source: The Montana Tavern Times, Nov. 2005, published monthly by Continental Communications, 125 W. Granite St., Suite 102, Butte, MT 59701.