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Dave Olson, Published November 26 2012

North Dakota ban to snuff out smoking shacks

FARGO – Mark Doyle spent tens of thousands of dollars four years ago to build a brick smoke shack next to Chub’s Pub, the bar he operates at 421 North University Drive in Fargo.

It was a reaction to the passage of a city ordinance that added bars to the list of places in Fargo where smoking was not allowed.

On Dec. 6, Doyle’s smoking area and many others connected to North Dakota bars will become no-smoking shacks under a new state ban that could make smoking in downtown Fargo a challenge.

The indoor ban approved by voters in an initiated measure earlier this month prohibits smoking within 20 feet of doors and windows of many types of business establishments. The idea behind the 20-foot rule is to keep smoke from wafting into buildings.

While Doyle says he will abide by the new rule, he sees it creating all kinds of issues – from his own customers having to smoke in a potentially more hazardous area (his parking lot) to the difficult time smokers will have finding a spot in downtown Fargo where they can legally light up.

“Basically, it’s going to be illegal for you to smoke on a sidewalk in downtown Fargo on Broadway,” Doyle said. “It will be illegal because at any one time you will be 20 feet from the front door of a business.”

The subject of the new law came up during Monday night’s meeting of the Fargo City Commission.

Commissioner Brad Wimmer acknowledged that the law will make much of the downtown a no-smoking area, while Commissioner and Deputy Mayor Tim Mahoney alluded to the imminent demise of smoking huts.

“Some people are going to get cold,” he said.

Bundled up and out for a smoke on Monday night on Broadway, resident Tim Donaldson said if he was a business owner, he’d be fuming over the loss of the smoke shacks.

“That ain’t right,” the Fargo man said. “Now you’ve got a bunch of people standing on the corner.”

Another Fargo smoker, Kristine Wallin, who said she frequents many downtown bars, used an expletive to describe how frustrated she was about the legislation.

“They’re taxing us like crazy on cigarettes, and yet they’re taking away our rights,” Wallin said, adding that the 20-foot provision puts smokers in unsafe and undesirable places.

“In other words, in the alley. In the outhouse,” she said.

Under the new law, an individual who smokes in a prohibited area could face a $50 fine.

For businesses that allow smoking where they shouldn’t, the first violation could result in a fine of up to $100, and a second violation could push the fine amount to $200.

Third and subsequent violations in the same year could bring $500 fines.

Also, establishments that hold liquor licenses could see their license revoked if they willfully break the law.

However, when it comes to enforcing the law in Fargo, sanctions will take a backseat to education, according to Robyn Litke Sall, coordinator of Safe Communities, a program of Fargo Cass Public Health.

Litke said in cases where that agency is involved, an effort will be made to resolve the issue short of imposing penalties, and she’s optimistic people are aware of the law and understand its implications.

Litke Sall said the enforcement process will essentially be complaint driven.

If complainants contact her office, they can do so anonymously and the agency will then try to work with the business involved to come into compliance.

The other route, she said, would be to make a complaint to a law enforcement agency, in which case the person bringing the complaint would be required to give their name and it would be up to the law enforcement agency to decide how the case proceeds.

Doyle said he would be happy if state lawmakers tweaked the new law to make it more similar to the ban Fargo had in place already.

“Fargo’s ban was working, in my opinion,” Doyle said.

Under North Dakota’s constitution, an initiated measure once passed cannot be amended or overturned for seven years, except by a two-thirds vote of lawmakers in both the House and Senate.

The initiated measure on smoking that passed this month did so with 67 percent approval statewide. In Cass County, 70 percent of voters said yes.

Smoking ban timeline

2004: City of Fargo ordinance approved prohibiting smoking in restaurants that allowed minors entrance.

August 2005: North Dakota passes law prohibiting smoking in public places with the following exemptions: bars, hotel rooms deemed as smoking, retail tobacco stores, and designated areas at truck stops.

July 2008: Update to city of Fargo ordinance removes the exemptions of bars and designated areas at truck stops.

November 2012: Statewide measure passes with 67 percent approval rate. Law bans smoking in all enclosed areas of public places and places of employment.

Readers can reach Forum reporter Dave Olson at (701) 241-5555

Forum reporter Erik Burgess contributed to this report.

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