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Erik Burgess, Published December 05 2012

JT Cigarro plans to keep puffing with ban ‘loophole’

FARGO – A local bar and cigar lounge owner here believes he has a way to get around the state smoking ban that is effective today.

“They left one little loophole open, and we will be taking full advantage of that,” Dana Coulter, owner of JT Cigarro and Skky Bar, told The Forum on Wednesday.

Retail tobacco stores had been exempt in Fargo’s city ban but are now explicitly defined as smoke-free zones under the ban approved by voters Nov. 6.

The new law lists few exceptions, but one of them is “any area that is not commonly accessible to the public and which is part of an owner operated business having no employee other than the owner operator.”

Coulter said he runs an owner-operator business out of a separate room in the JT Cigarro building, and he is the only employee. He plans on letting customers smoke inside that room.

“We’re gonna follow the law to a T … the way they wrote it,” he said. “I don’t write the laws; they do.”

There might be some problems with his understanding of the law though, said Robyn Litke Sall, a tobacco prevention coordinator for Fargo Cass Public Health, one of the organizations in charge of enforcing the law.

Litke Sall said that particular exemption is meant for owners that run a business by themselves in an office that no one else enters on a regular basis.

“If he’s allowing other people to be in there other than himself, that’s not allowed by the law,” Litke Sall said.

Coulter argued the exemption states that the “public” must not regularly enter the area, but patrons who wish to smoke could still come in.

Litke Sall said that’s not her read of the law.

“Those people that he’s going to allow in there, I don’t know how he could exclude them from being members of the ‘public,’ because we’re all members of the ‘public,’ ” she said.

Other provisions new to Fargo will be enforced starting today. Smokers must now be 20 feet away from entrances, exits, windows, ventilation systems and air intakes of public buildings. Outdoor ashtrays must also be 20 feet away, Litke Sall said.

Enforcement will be complaint-driven, but businesses and smokers would likely be given warnings first, police Lt. Joel Vettel said. Public health officials are expected to take the lead in enforcing the ban, but police can issue tickets.

“It’s not something we want to take and move forward with just strong enforcement,” he said. “I think we need to start with the education and go from there.”

The new measure sets a $50 maximum fine for anyone smoking in an area where it is not permitted.

Business owners are required to deny service to any customer who breaks the ban, and owners could be subject to permit and license suspension or revocation for failure to comply with all of its provisions.

Citing Center for Disease Control numbers, Litke Sall said only 12 percent of Fargo-Moorhead residents are smokers, so she believes the new measure will go over smoothly here.

Prepping for ban

The Tobacco Prevention and Control office in Bismarck has been sending out notifications to businesses across the state, detailing the new state smoking ban voters approved last month.

On Nov. 28, state officials sent 55,000 postcards to businesses, said Robyn Litke Sall of Fargo Cass Public Health. On Wednesday, the day before the ban kicks in (today), 37,794 businesses received email reminders, she said.

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