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Erik Burgess, Published November 03 2012

Smoking ban buffer may cause issues for bars

FARGO – A statewide smoking ban on the ballot Tuesday prohibits smokers from puffing within 20 feet of a building entrance, but an official who helped write the language of the measure said she doesn’t believe that will be strictly enforced.

“I’m not sure that anybody’s going to be out there with a 20-foot tape measure,” said Chelsey Matter, chairwoman of Smoke Free North Dakota, which wrote the language for Measure 4. “Really, we just want people away from the door.”

If Measure 4 passes on Tuesday, smokers cannot light up within 20 feet of an entrance, exit, operable window, air intake or ventilation system. The provision is new to Fargo, which passed a citywide smoking ban that included bars and truck stops in 2008.

An official from Fargo Cass Public Health, one of the agencies that would be responsible for enforcing the ban, directed questions about the building buffer’s impact to Matter – a respiratory therapist who used to work for the agency.

A 20-foot provision already exists in Grand Forks and is becoming the trend in many other cities across the nation, Matter said.

“That’s really to ensure that smoke doesn’t infiltrate to other areas where smoking is not allowed,” she said.

When smoking was banned in bars here four years ago, some owners built designated areas outside to accommodate their smoking clientele.

Under the new measure, those “smoke shacks” that aren’t 20 feet from entrances, Matter said, could be cited if customers complain or if smoke drifts into a non-smoking, indoor area.

Matter said bar owners were made aware of this when the citywide ban went into effect four years ago, but Randy Thorson, president of Old Broadway and JL Beers, said he doesn’t remember that conversation.“Nobody ever said that, not to me anyway,” Thorson said. “I know the other bar owners in town. They’ve never said anything to me.”

Thorson said he put anywhere from $30,000 to $60,000 into the designated smoking area at Old Broadway, and if the measure passes, he’d have to spend a few thousand more to install air curtains – a mechanical device that creates a wall of air in a doorway and keeps outside air and smoke from getting inside.

“It was emphasized that these could always change,” Matter said of the city ordinances. “We know at some point this could go statewide, and we can’t promise you there won’t be a 20-foot rule, so don’t spend a lot of money on these shacks.”

Still, Thorson said, he is willing to work with public health officials to be in compliance with the new measure should it pass.

The main issue for Thorson, and for other bar owners like Jeff Fonder, who manages Dempsey’s, is the safety of their smoking customers.

Twenty feet perpendicular to Dempsey’s main entrance is in the middle of Broadway, Fonder says.

“I’m not even sure where they’d be able to go and smoke,” he said. “It seems to be getting a little excessive when you start pinpointing certain feet away from buildings.”

But Matter says if you don’t put a specific number of feet in the measure, interpretations of where people can smoke can vary too much.

“I just think you just have to be reasonable about where you’re choosing to stand,” Matter said. “It’s not about criminalizing the smokers. It’s about making sure that everybody is protected from secondhand smoke.”

Another provision in the measure makes it so an outdoor smoking shack has to be at least 66 percent open. Matter said that’s to keep bar owners from building enclosed smoking hot boxes that servers or bartenders might have to enter.

If any current smoking shacks aren’t up to code, Matter said she believes public health officials won’t come busting the door down unless someone complains.

Business owners can also apply for a waiver, she said, if they want to argue that smoke isn’t infiltrating into a non-smoking area despite the fact that their smoking area isn’t 20 feet from a doorway.

“I don’t want to give the impression that this is the law, and this is the way it’s going to be,” Matter said. “We’re going to be working with these businesses.”

Thorson, who said he was OK when the smoking ban passed in bars, said he expects this measure to pass as well.

“We’d like to work with them,” he said, referring to public health officials. “Give our customers who do smoke a safe environment, a safe area to go smoke. They’re going to do it anyway.”

How it’s different:

Fargo passed a citywide ban on smoking inside bars and truck stops in 2008, amending the 2005 statewide ban on smoking in public places. If passed, Measure 4 – a statewide indoor smoking ban – would add new provisions to the Fargo ban. Here are three ways the state ban would differ from the city’s:

• Smokers would have to be at least 20 feet away from an entrance, exit, operable window, air intake or ventilation system.

• Electronic cigarettes would be specifically banned.

• Retail tobacco stores would no longer be exempt from the ban.

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Readers can reach Forum reporter Erik Burgess at (701) 241-5518