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Missoula ordinance

The Missoula City Commission was the first municipal governing body in Montana to pass an ordinance prohibiting indoor smoking.

The ordinance, which became effective in September 1999, exempts bars and bar-style restaurants along with hotel guest rooms, private functions, retail tobacco stores, and truck stops that have liquor or food services and "truckers' waiting lounges." Restaurants with bars are included in the ban. But the bar areas that are used primarily to serve alcohol are not.

"The bar area (is) exempt and the restaurant is not," explained Ellen Leahy, director of Missoula's City-County Health Department.

Similarly, restaurants in bowling alleys are included in the ban. The bar, however, is exempt.

Leahy said truck stops were exempted because of their "transient clientele."

There is another, important, exemption in the Missoula ordinance. That is a provision to exempt businesses, that qualify for an exclusion, that opened after May 1999 as long as they provide separate ventilation areas.

Because of the exemptions, enforcement has been relatively easy. There has been no reason to hire a special "smoking cop" to police bars and issue tickets as has been the case in Helena.

"In terms of enforcement, the number of complaints that have come in have been relatively few, and in almost every case, the educational visit to non-compliant businesses has been enough," said Ellen Brown, tobacco prevention coordinator for Missoula's health department. She said violations have occurred at a rate of about two or three a month after the first year that the ordinance went into effect.

While bars and gaming establishments report little change in business, some restaurants that had catered to smoking customers have lost business.

"We're doing fine," said Kevin Head, owner of the Rhinoceros and a key participant in the negotiations over the ordinance. "We're staying the same, or in some cases are up over a year ago."

That has not been the case with the 4-B's Restaurant in Missoula, which is open 24 hours and welcomed smokers.

"We feel that we should have been allowed to cater to all our customers as we had in the past instead of losing a good core group," said Jeff Hainline, president of 4-B's.

He said he suffered a six-figure loss during the first year of the ban in his restaurant, but said the 4-B's truck stop, where smoking is allowed, experienced an increase in business.

"It is clear that there are many places that are hurt significantly by the smoking ban," he said in a letter to the Lewis and Clark County Health Board.

Passing the ordinance with an exemption for taverns and gaming establishments came only after a year of "a lot of hurdles" during the intense and delicate negotiations, according to Head.

Anti-smoking groups, he said, used deceptive arguments about the dangers of second-hand smoke and tried to win over restaurant and tavern proprietors by promoting the "big myth that people couldn't wait to rush into bars after the smoking stopped."

"It's a big lie," he said.

Moreover, he said bars that opened after the May 1999 deadline will have devalued liquor licenses because of the increased costs of installing expensive ventilation equipment.

He, like others engaged in the smoking controversy, does not believe that anti-smoking groups are finished.

"They continue to lie and misrepresent themselves," he said.

Great Falls ordinance

In Great Falls, negotiations were being conducted simultaneously with those in Helena. Again, taverns and gaming establishments were at the center of the debate. When the ordinance, which banned smoking in most businesses, went into effect in January 2000, it contained one major difference from the restrictions passed in Missoula when it gave owners of restaurants and taverns a one-time choice as to whether to allow smoking in their establishments.

"What we did here in Great Falls on behalf of fairness was to give every restaurant the one-time opportunity to call themselves a smoking or a non-smoking restaurant," said John Hayes, executive secretary of the Cascade County Tavern Association. "If they said they were a non-smoking restaurant, then they were non-smoking from here to the end. If they were a smoking restaurant, they had to post it."

A restaurant that became smoke free under provisions of the ordinance would remain non-smoking. However, a restaurant that allowed smoking could become a non-smoking restaurant.

That option, however, was not extended to new restaurants in Great Falls, which will be no smoking businesses from the day they open.

Despite the concessions, Hayes acknowledged the negotiations, which were two years in the process, became intense.

"We went into arbitration," he recalled. "We were locked in a room for three days from 9 a.m. until 5 p.m. we'd leave at night and go back into the room the next morning."

Hayes credited members of the Great Falls business community for helping tavern owners, and said the person handling the arbitration was fair to both sides.

"She made us into people instead of issues," he said, pointing out that business owners concerns were taken into account rather than just given lip service.

One major argument that worked in favor of the tavern owners, he said, was the issue of stability in regulation.

"We had some business leaders who expressed concern about pouring a lot of money into what was legal last week, but not legal now," he said.

By and large, the ordinance contained the same exemptions as those allowed in Missoula retail tobacco shops, hotel guest rooms, private gatherings and bowling alleys except during youth events. Again, because of the exemptions, enforcement has been straightforward.

"we've only had two complaints in the last nine months," Hayes said.

Bozeman ordinance

Anti-smoking activists in Bozeman, buoyed by the vote in Helena in June, 2002, spent that summer pressing for a public vote on a total ban.

However, businesses in Bozeman released a public opinion survey showing wide support for exempting bars and gaming establishments or enacting no ordinance at all.

In August, the results of a scientific public opinion survey, conducted by a reputable firm (A&A Research of Kalispell) showed that 60 percent of Bozeman adults favored smoking restrictions that would exempt bars and casinos, or no ordinance at all. The survey also revealed that 86 percent of those polled agreed that businesses affected by a total ban should be allowed to offer an alternative.

When the city commission convened a week after the poll was released, it decided not to send the question to voters and to, instead, exempt bars and gaming establishments. The final meetings special sessions that took up an evening as well as the next morning were conducted just before the August deadline for placing issues on the November general election ballot.

"I don't feel we need to send this to voters," said Steve Kirchoff, the mayor at the time, after the 5-0 vote. "This ordinance protects the public health and provides for the choice we've heard so many folks clamoring for."

Both Mayor (Commissioner at the time) Andrew Cetraro and Mike Hope, a tavern owner who was instrumental in representing business interests during the debate, said they are satisified with the ordinance.

Cetraro, who with his father operates the Village Inn, and who had spent a great deal of time working on the ordinance since the get go, called passage of the ordinance "positive."

"Instead of dividing the community over a ballot issue, we've got an ordinance that can work," Hope said.

Those who worked toward the compromise, including the mayor, pointed out that 80-90 percent of the city's eating establishments even those with liquor licenses (as is the case in most Montana cities) are already non-smoking or have smoke-free areas by choice.

Dennis Alexander, the spokesman for Citizens for a Smoke Free Bozeman, called the ordinance, which became effective in mid-November, "a positive compromise." At the same time, however, he issued what could be interpreted as a warning.

"we'll continue to educate the public about the hazards of second hand smoke," he said.



What have other towns done?

The day before voters in Florida approved an initiative on Nov. 5, 2002, banning smoking in the workplace except, notably, in taverns the Havre City Council decided their city did not need any ordinance prohibiting smoking in places frequented by the public.

The debate over smoking has become a heated issue at both the state and national levels, and finding a solution to protecting workers from second hand smoke while still respecting the rights of business owners to make their own decisions appears as elusive as finding Osama bin Laden.

While smoking ordinances have been passed in four Montana cities (see accompanying stories), only one Helena has one without reasonable exemptions. It totally banned lighting up in taverns and gaming establishments. Two other cities, Butte and Billings, have considered smoking restrictions but, in light of the fallout from the Helena toital ban, no action has been taken.

Meanwhile, smoking in the workplace and in businesses to which the public is invited have raised controversy from Martha's Vineyard to New York City.

In Havre, members of the council apparently put the issue of smoking restrictions to rest when they decided that business owners are doing a good job of handling smoking on their own and, therefore, the council would oppose any prohibitions, especially in bars and gaming establishments.

Ron Farnham, a member of the council and manager of the Eagles Club, said he brought up the subject because tavern association members feared being blind-sided by an ordinance similar to the one in Helena.

In Butte, an ordinance restricting smoking had been extensively studied for more than a year.

During that time, members of the Butte-Silver Bow Commission had scrutinized ordinances in Missoula and Great Falls that have exempted bars and gaming establishments as well as the impact on the tavern business that had been caused by the total ban in Helena. They had convened focus groups and have taken public opinion surveys.

A proposed ordinance that ultimately reached the council called for a total ban taking the city's licensees by complete surprise since they had been led to believe a reasonable ordinance with exemptions for traditional taverns would be offered. That was in 2002 and, following the ugly lessons learned by the Helena experience, the city commission has indefinitely tabled the ordinance.

Butte, as the editorial writer for the Montana Standard pointed out, "is not the town is used to be." Once a booming mining town where vice of every kind was tolerated, the writer noted that Butte is undergoing a social and cultural evolution.

"Nonetheless, we think you'll be able to smoke in Butte bars for a long time to come," he concluded.

In Billings, the smoking issue has been on hold for several years. Although anti-smoking activists presented a proposed ordinance that would impose a total ban on the city's businesses in May, 2002, no action has been taken. Speculation is that city officials in the state's largest city will wait to act until the outcome of a lawsuit challenging the ordinance in Helena in determined. Also important to Billings' officials is the question of how much revenue from taxes on gaming machines the city might lose as the result of an all-inclusive ordinance.

While the debate over lighting up is smoldering in a number of cities nationwide, it is nowhere more pronounced than the firefight ignited by New York Mayor Michael Bloomberg. There, the mayor proposed and the city adopted an ordinance that would ban smoking in all businesses, including taverns essentially overturning a policy established by his predecessor, Mayor Rudolph Giuliani, which allowed smoking in some hospitality businesses.

The ordinance has spawbed civil and legal strife throughout the city, driving a wedge between citizens of a community that needs unity in the face of calamity.

It is the second time the Bloomberg administration has targeted smokers in a town where citizens, and employees in hospitality businesses, have other things to worry about. In June, 2002, Mayor Bloomberg raised the tax on a pack of cigarettes from 8 cents to $1.50 which has since spawned a documented black market in tobacco products.

In defense of his proposal, Bloomberg has parroted the fuzzy arguments of anti-smoking activists on the dangers of second-hand smoke.

"If you are a bartender or a waiter or waitress and work in an establishment where there is smoking, in an eight-hour day It's equivalent of you smoking half a pack of cigarettes yourself," he has been quoted as saying.

Montana prohibitionists say its a full pack, but never seem to quibble over "minor" discrepancies.

But both hospitality business owners and employees are letting Bloomberg know he has picked a fight.

"Being subjected to smoke is part of my job," said a bartender in midtown Manhattan.

And Elaine Kaufman, who owns a New York City eatery famous for its clientele of well-known writers, expressed the belief of many of those in the hospitality business when she said: "I'm in the service business In my business, It's about hospitality. We serve people. We like to please. we'd much rather say yes than no. And if (customers) don't want to be around smoke, they don't have to be. With the current setup 85 percent of the place is now no-smoking. It works."

In Whately, Mass., where smoking is allowed in bars but not restaurants, truck drivers are traveling to the next town for their meals.

"Looks like the last time I'll be here," said one trucker who has stopped regularly at the town's diner and truck stop.

"If they're not going to have smoking, I'm not going to stop here anymore."

But not all developments in the smoking issue are doom and gloom for the owners of hospitality businesses, their employees and their smoking customers.

In August, the Ohio Supreme Court ruled that local health boards cannot enact smoking bans because the state's clean indoor air act specifically exempts bars and restaurants from smoking prohibitions. A similar situation exists in Montana.

"Local boards cannot act in any area of public health without prior legislative approval," the court said.

And in Martha's Vineyard, the popular vacation get-away for the rich and famous, the board of health repealed that town's ban on smoking in bars after smokers took to the streets outside of taverns.

"The (cigarette) butts are a major problem ," said a health board member who voted to reverse the ban. "they've taken the bar atmosphere and put it in the street."

Smoking ordinances conclusion

"Although hard line proponents of all-out bans may not have been totally satisfied with the workable outcomes in Missoula, Great Falls and Bozeman, not to mention Havre, these communities and their leaders are satisfied and, to a city, basically have no complaints," said Mark Staples, attorney/lobbyist for the Montana Tavern Association.

"These outcomes suggest more and more that the trend in Montana is to balance approaches fashioned by businesses, customers and civic leaders, not aggressive 'public interest groups' with a pre-set agenda.

"Helena is looking more and more like an extremist island in a sea of common sense."

Extra, a special supplement to The Montana Tavern Times, Dec., 2002, published monthly by Continental Communications, 125 W. Granite St., Suite 102, Butte, MT 59701.