In Montana, as it is around the nation, the top concern of tavern owners is smoking bans.
So it was apt when Mark Staples led the Montana Tavern Association Legislative and Gambling Committee in a discussion of the anti-smoking law passed by the 2005 Legislature and the draft rules which were first released to the Montana Tavern Times August 30.
Staples, MTA attorney and lobbyist, recounted the history of the law when the committee convened Sept. 18 at the MTA convention in Helena:
• HB 643, a bill to ban public indoor smoking was introduced and subsequently bottled up in committee. It could have been allowed to die.
• Meanwhile, a competing bill supported by MTA, HB 661, would have banned smoking with an exception for licensed premises. It passed the House and was waiting for a Senate hearing.
• Smoking prohibitionists threatened a citizen initiative and court challenges.
• Tavern interests concluded they would be massively out-spent when it comes to funding an initiative, though their own research showed the public would support a smoking ban with tavern exemptions. Even if they could have afforded to fight and hopefully win an initiative, it still would have required age restrictions for exempt businesses.
• Montana's liberal constitution guarantees citizens the right to a "clean and healthful environment" so there was some legal exposure on that front.
• Rather than fight an expensive initiative battle or be drawn into a long and expensive court fight, the MTA board of directors authorized Staples to negotiate with smoking prohibitionists from the heart, cancer and lung associations, the hospitals, doctors and nurses and other social advocacy groups.
• A heavily amended, carefully compromised HB 643 was the result. It was passed by both houses and signed by the governor.
In essence, it allowed for a four-year exemption from a smoking ban for taverns, while the rest of the state's workplaces would go smoke free by Oct. 1. Exempted premises would have to contain smoke infiltration into non-smoking areas of a building, and would have to prohibit minors in smoking areas. Further, an exempted business would be required to gross at least 60 percent of their revenue from adult beverage sales and/or gaming to qualify.
The Department of Health and Human Services was assigned the task of drafting rules. The clear understanding of parties involved in crafting the compromise, according to Staples and the legislative record, was that they be practical and reasonable, and be enforced with common sense.
A rules hearing has been scheduled for Sept. 30 (after the Tavern Times' deadline), but since the law was to take effect Oct. I. Staples told the MTA committee he had been told by the department that a 90-day "grace period" would be in effect.
Further, Staples noted some premises would need to make physical alterations to qualify for an exemption. They may need to erect a barrier between smoking areas and smoke-free areas to prevent smoke infiltration and exposure of minors.
Structural alterations need to be designed, plans are required to be submitted to the Department of Revenue, then licensing personnel need to approve or deny the alterations. That process will require time as well, Staples said.
"We need to keep our word," Staples told the committee, "to act in good faith, to try to make this work. There are extremists on the other side who would like to see the rules so Draconian that they'll never work and the process blows up.
"But so far, the mainstream health leaders and DPHHS seem to be honoring the deal," Staples said.
Some licensees, however, have reported to Staples harassing visits from local health personnnel who are making demands far outside the scope of the law or rules, such as separate entrances, separate bathrooms and separate ventilation systems for smoke-free areas, Staples said, and that is both premature and wrong. He asked licensees to report any such instances to his office so he can address them with DPHHS officials.
Staples outlined the complaint process:
A citizen who believes a violation has occurred must file a formal complaint with the local department of health. Then department personnel must conduct an investigation to try to establish a factual basis for the alleged violation. If they conclude a violation has occurred, they then must refer a formal complaint to the local county attorney, who will then have to decide whether to prosecute the violation or not.
If prosecuted and convicted, the violation is a misdemeanor with no violation attached to the license holder's license. A second conviction is a written reprimand; a third results in a $25 fine; a fourth is a $100 fine and a fifth is a $500 fine. Violations are expunged from the record within three years of conviction.
MTA director Bob Miller said he thought, as the law is written, that enforcement obligations should not lie with owners or staff. "They should ticket the smoker, not the owner," he said.
That kind of change would need to be made at the statutory level, not rules, Staples said.
In summary, Staples sounded an optimistic note that the deal could be held together, that the moderate voice of reason would prevail over the unrealistic demands of hard-liners.
Some discussion then covered a recent court case in Butte where a jury acquitted a retailer of criminal charges of "unlawful transactions with children." The defendant allegedly sold alcohol to a minor in police sting. Apparently the jury found the police action constituted entrapment.
Staples noted the criminal charge requires knowing intent, while the lesser charge of serving a minor does not. The Butte case has no statewide precedential value, he noted, as it was handled in justice court although some may refer to it in their defenses.
Staples also noted the new open container law, which applies to vehicles only, goes into effect Oct. 1. He said he anticipated few problems with its implementation.
Staples then called on Tim Carson, president of Summit Gaming in Billings, to elaborate on new rules and legislation the Gambling Control Division is considering. Carson also serves on the Gaming Advisory Council (GAC), a body that brings together representatives of local government, the legislature, the regulatory community and the public to develop workable rules and law regulating gambling.
Carson said that after painstaking deliberation and legislative action, practical mutli-game and bonus game rules had been completed and were in place.
He said there would be a presentation by the revenue department at the Sept. 23 GAC meeting regarding a court ruling that overturned Montana's prohibition of non-resident ownership of liquor and, hence, gambling licenses. (See complete account of the GAC meeting elsewhere in this edition.)
Carson said he thought the ruling might have a "dramatic" effect on the long-term industry landscape, though there has been no license rush from non-residents, with about 10 applications received so far. He said the decision could have some impact on license values and could hold some opportunities for business owners.
He also said there would be discussions on: the use of credit cards to obtain cash advances on a licensed premise; changes in gambling Control's testing lab fees; new requirements for filing "letters of withdrawal" for machines taken out of service; live poker rules; card dealer licensing requirements; and web-based automatic accounting and reporting.
With that, the meeting adjourned at 11:20 a.m. so members could attend the convention luncheons.
Source: The Montana Tavern Times, Oct. 2005, published monthly by Continental Communications, 125 W. Granite St., Suite 102, Butte, MT 59701.