Jason Adkins, Detroit Lakes (Minn.) Tribune, Published February 07 2009
Smoke hasn’t cleared yet
CALLAWAY, Minn. – The statewide smoking ban that took effect Oct. 1, 2007, has hit some bars around the area hard.
But not the on-sale portion of the Callaway Liquor Store. That’s because smoking is still allowed in the bar that sits on the White Earth Reservation, 11 miles north of Detroit Lakes.
The city-owned bar has seen a nearly 80 percent increase in revenue since the ban began.
Callaway City Clerk Shelley Dillon said smoking alone doesn’t explain the increase.
“When we started gaming, sales went up substantially,” Dillon said.
Gaming in the form of networked machines started at the bar in August 2007. The average monthly revenue from January 2008 to the start of gaming was $14,186.
From the point gaming started until the smoking ban, average sales increased $19,028.
Dillon said the city needs the revenue since not all the land in Callaway is subject to property taxes. She said tribally owned housing takes close to a quarter of property tax revenue.
Another dent to revenue is the Native Harvest store in the old Callaway School. The store is also exempt from property taxes.
Dillon said the added revenue came when more people came to the bar to smoke and gamble.
Profits from the city-owned liquor store go to the city.
White Earth Tribal Attorney Joseph Plumer issued a legal opinion that said the statewide law doesn’t apply to the tribe.
In his opinion, Plumer said the Freedom to Breathe Law is a civil regulatory law and has “diminished applicability on lands within the limits of an Indian reservation.”
The legal arrangement of tribal gaming machines in Callaway Liquor Store muddies the legal waters.
In essence, the tribe leases the physical space in the areas where gaming machines are located, Dillon said.
Plumer’s opinion says each site with a Class II gaming license from the tribe can choose whether to permit smoking.
Municipal stores in Mahnomen, Ogema and Waubun decided to prohibit smoking while Callaway allowed it.
Mahnomen and Waubun authorities relied on an opinion from the Mahnomen County Attorney that determined smoking would be illegal.
Mahnomen County Attorney Julie Bruggeman said the opinion is based on reasoning that the state can’t enforce civil regulatory laws on either tribally owned land or land that is owned by enrolled tribal members. She thinks Callaway is stretching it.
“Just because it has a gaming license means nothing,” Bruggeman said.
The state Department of Health is taking a hands-off approach for now, basing its decision on an unclear opinion from the attorney general’s office.
“We did have some direction of what we could or couldn’t do,” said Tom Hogan, director of the Indoor Environment and Radiation section at the Department of Health. “It wasn’t a very clear path.”
“The state has not received a complaint,” Hogan said, adding there have been none against the store.
Becker County Attorney Michael Fritz said since violations are misdemeanors, the responsibility for charging violators of the law falls to cities. That won’t happen with Callaway signing off on smoking at the liquor store.
Other establishments are hurting.
The American Legion and Veterans of Foreign Wars posts in Detroit Lakes have seen a dramatic drop in revenue.
“It’s certainly not a level playing field,” said VFW Post Commander Dave Coalwell.
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