HELENA - Legislators next year may face more contentious debates over an explosive issue they thought they had resolved in 2005 - banning smoking in bars and casinos.
Sen. Jerry Black, R-Shelby, is having a bill drafted to permanently exempt some 1,400 bars and casinos from a statewide smoking ban set to apply to these establishments Oct. 1, 2009.
His proposal would apply to only those bars and casinos that sought an exemption by June 30 from the Montana Clean Indoor Air Act.
More time for bars, casinos
The law banned smoking in all other Montana public buildings and indoor workplaces as of October 2005. It gave bars and casinos four more years.
Several businesspersons, including one tavern owner, asked Black to submit the bill draft. Black said he isn't sure yet if he will actually introduce the bill, and he conceded it probably has "mixed to nil" chances of passing.
"We just feel the Indoor Clean Air Act is working the way it should," Black said. "This still gives people a choice."
Montanans could choose to go to bars that already have gone smokeless or, if the bill passes, they could opt for bars and casinos where people could continue to smoke.
Darrell Keck, a Shelby tavern owner, said he asked Black to introduce the bill on behalf of a "little grass-roots movement" with 100 members that lack out-of-state foundation money of health advocacy groups. The Montana Tavern Association is not involved with the group.
"I think I have to do this," Keck said. "I don't really believe this is a smoking issue. It's a property rights issue."
Keck, who owns a steakhouse, lounge and casino, said he spent $18,000 putting up a wall to separate his dining room, when smoking wasn't allowed there, from the bar, where it is. Keck said he lost 60 percent of his dining business, while his bar business went up 300 percent.
Unless the law is changed, Keck predicted it will dramatically affect life in small towns, eliminate some bar and casino jobs, cut state tax revenues and deprive smokers of their rights.
"People don't go into a bar for their health," Keck said. "If that were the case, I guess they'd be serving booze at the health clubs."
Black's bill draft has fired up the same coalition of public-health advocates that helped pass the law in 2005. It includes cancer, lung and heart association.
"This is a health care issue for Montanans," said Kristin Page Nei, state government relations for the American Cancer Society Cancer Action Network. "What's really important to note is Montanans understand that. We feel all workers, including casino workers, have the right to breathe clean indoor air."
Health advocacy groups commissioned a statewide telephone poll in September. It found that 79 percent of Montana voters favor the act, while 20 percent oppose it. The poll has a margin of error of plus or minus 4.4 percentage points.
"We feel that four years, going on five years, is more than enough time for bars and casinos to comply," Nei said. "Many are complying and seeing no effect or more business."
She cited a study by two Helena physicians that found that heart attacks among Helena residents dropped by 40 percent during the less than a year that the city's ban was in effect before a court tossed it out. Nine other studies around the world have reached similar conclusions, Nei said.
Linda Lee, supervisor of the Montana Tobacco Use Prevention Program in the state Department of Public Health and Human Services, called secondhand smoke "so toxic it's three times worse than the poor air quality from wildfires."
Public-health advocates will be joined by some unusual allies in their battle to preserve Montana's 2005 clean indoor air law - the Montana Tavern Association and Gaming Industry Association of Montana.
Mark Staples, lawyer for the Montana Tavern Association, said none of the "cultural and political imperatives" that led the association to agree to the four-year delay have changed.
"The tsunami of smoking bans has never stopped rolling," he said. "Those places that thought they could withstand an initiative drive got absolutely wiped out. As far as we're concerned, the public has made its feelings about this issue very clear."
A second reason for opposing the bill is that "we gave our word," Staples said.
"We've really tried to find a way that gave our members a reasonable amount of time to transition," Staples said. "Many of them have and many more will."
Staples acknowledged that the ban probably will financially damage those establishments with lots of smokers among their patrons.
"We made those arguments for years," he said. "They may be hurt. It's just an argument that doesn't work anymore. When you've got 80 percent of the public that doesn't smoke and 20 percent that does, it doesn't bring much to the table in terms of bringing you leverage."
The Montana Tavern Association board voted 47-2 to "affirmatively and energetically" oppose Black's bill, Staples said, despite its great respect for Black.
The Gaming Industry Association voted 10-0 to line up against Black's bill, said Neil Peterson, its executive director.
Gov. Brian Schweitzer also continues to back the 2005 law.
"We signed the original legislation, and we continue to support that policy," said Sarah Elliott, the governor's spokeswoman.
Montana has about 2,300 establishments with on-premise consumption licenses, ranging from all-beverage, beer, beer and wine, cabaret, veterans and fraternal groups, airports and golf courses, said Jason Wood of the Liquor Control Division of the state Revenue Department.
About 1,400 have applied for smoking exceptions since passage of the 2005 law, he said. Wood estimated that 900 establishments that hold liquor licenses that may or may not allow gambling are smoke-free.
Jon Ebelt, spokesman for the Montana Department of Health and Human Services, estimated that at least 125 Montana bars have chosen to become smoke-free before the 2009 deadline.