Smoking in North Dakota became a lot more complicated today.
North Dakota voters overwhelmingly passed Measure 4, colloquially known as the smoking ban, during the November general election. The law, one of the most stringent anti-smoking measures in the country, took effect today.
Two out of three voters in the state voted in favor of the ban, and every county passed it. Billings County was the only county where the vote was close, but it ultimately passed by just three votes. Ward County supported the measure with similar percentage to the statewide vote, with the final percentages being 63.4 percent, or 15,720 votes, to 36.6 percent, or 9,073 votes.
Bars like Sidekicks in Minot will have to figure out ways to make smokers feel welcome now that patrons will be prohibited from smoking inside or within 20 feet of the business entrance.
What does this mean for local businesses and their patrons? There seems to be no clear answer.
The law, which can be read in its entirety online (1.usa.gov/T2Sj9t), amends Title 23, Chapter 12, Articles 9 through 11 of the North Dakota Century Code, which was the old smoking ban, and re-enacts it. The amendments outlaw smoking in pretty much every public and private location in the state, including tobacco shops that sell only to smoking customers.
The ban also applies to electronic cigarettes.
Smoking on most sidewalks will be illegal unless the smoker is more than 20 feet from doors, windows, and ventilation systems of all nearby businesses.
"It's kind of frustrating that the goal posts are always moving on this issue for our industry," said Rudie Martinson, executive director of the North Dakota Hospitality Association, which represents bars, restaurants, hotels and liquor stores in the state. "A few years ago when smoking was banned in restaurants, the law at the time said that if you have a restaurant and bar and you wall off that bar and put in separate ventilation, you can still have smoking in that bar, but not in your restaurant."
Schatz Crossroads Truckstop in Minot, which was able to have a smoking section in its restaurant under an exemption clause in the old law for truckstops, converted its smoking section into a regular section on Monday, ahead of the law's activation date.
"It was a huge investment on our part to have the system installed," said Krista Schatz Marshall, operating manager of the truckstop which her parents founded 30 years ago. "For a building this size, a separate HVAC system cost around $20,000."
"I'm not saying it wasn't cost effective," Schatz said of the separate sections.
People who previously avoided restaurants like hers in favor of non-smoking establishments liked that the non-smoking section, with air circulation separate from the smoking section, was clean of the smoke.
"What we're seeing, long story short, is that more and more people are opting not to go in there," Schatz Marshall said.
A non-smoker, Schatz Marshall said that she's unsure what effects the law will have on business. Since becoming completely smoke-free on Monday, "our sales haven't drastically gone up and down."
"As the employer, the biggest hurdle we've faced is our employees," Schatz Marshall said.
Under the old law, smoking employees could take short smoking breaks in the smoking section, which soured relations for the non-smoking employees who weren't equally given the opportunity for short breaks.
"It's not like they can sit down and chew some gum for 10 minutes," she said.
The ban may make this complaint mute.
Employees at other businesses, including Sidekicks bar on South Broadway, are unsure how the law will affect their business and have concerns about accommodating patrons who will be inconvenienced by the law. At Sidekicks, they'll start with a full cleanup of the business.
"All the ashtrays can't be in the establishment, and then of course, because most of our patrons will be smoking outside, we need to accommodate them so they aren't throwing cigarettes on the floor, so they're not freezing," said Liliani Barcello, a bartender at Sidekicks for about six months who moved here from Worcester, Mass., because her boyfriend is stationed at Minot Air Force Base. "I believe my manager's going to accommodate them by building some sort of structure outside, but there are rules against that."
There certainly are.
"This new state law is much more strict on those type of structures than several of the local city ordinances are," Martinson said. "The city of Fargo, for example, the city of Devils Lake, the city of Grand Forks all had local smoking bans that were enacted by their city councils, and a lot of them had provisions for those types of shelters."
Fargo's Chub's Pub constructed a shelter for $50,000 to be in accordance with their local ban, according to WDAY.
"One of the primary purposes of that was to keep our smokers safe, out of the way of traffic, warm and kind of in the same area," Jason Ramstad, a Chub's Pub manager, told WDAY about his shelter.
But business owners will not be allowed to construct shelters to protect smokers from the elements, including harsh North Dakota winters, because the new law defines an "enclosed area" as "all space between a floor and a ceiling that has 33 percent of the surface area of its perimeter bounded by open or closed walls, windows, or doorways." The law goes on to say that it doesn't matter if the walls are temporary or permanent.
Hotels will not be exempted from the law, which Martinson said is not common in the laws for smoking bans in other states.
"If you allow clientele to smoke in a certain number of designated hotel rooms, then you know which rooms have been smoked in every morning," he said. "If you just say there won't be any smoking in hotels anymore, then occasionally you'll have someone who smokes somewhere in the hotel... so essentially, you'll be guessing every morning which rooms were smoked in, instead of knowing because you had rooms set aside for your smoking clientele."
The law will not only affect the service industry, though. Every business must "clearly and conspicuously post no smoking signs or the international no smoking symbol" at their place of business in general, at every entrance, and on the outside of every business-related vehicle. All current and prospective employees will be reminded that smoking is prohibited.
There is only one protection clause for businesses. The employee or representative of a business must refuse service to a patron who lights up despite the ban, and must ask the person to leave the premises. If a business has taken these steps, then it will be the responsibility of the unruly patron and not the business.
Businesses that are first-time offenders of the law will be charged with an infraction and will have a penalty, not to exceed $100, imposed on them. The second infraction within the year will not exceed $200, and the third within a year will not exceed $500, but could endanger business licenses.
"I think it's going to be a nightmare," said Roza Larson, State's Attorney for Ward County, on enforcement. She was unsure as to how the law will actually be enforced.
"I think what will happen is that most people will comply, but you might have a situation where somebody will forget that that's the law and will light up. I think in most of those situations, the owner of the business will just say 'hey, we're smoke free, you'll have to put that out,' and will self-govern."
"Where law enforcement will probably get involved is where people are a little too close to businesses and may have to be issued citations," Larson said. "The spirit of the law, I think, is to make sure some of those employees who are still smoking in some of these public buildings aren't standing right in public in front of an entrance where people have to walk by them to get in."
Law enforcement on the scene will have to make judgment calls on a case by case basis.
"If (law enforcement officers) see somebody violating the law, then they'll have to make a decision about what to do. It's just like speeders. Driving down Burdick, probably any number of people are driving at least five miles over the speed limit, and they're not going to catch them all. Not everyone is going to get stopped. Those who do get stopped, some get warnings, some get tickets," Larson said.
Chelsey Matter, chairwoman of the independent group that composed the law, did not return a call to discuss the law by press time.
"It's kind of been our position, and it turns out the voters don't agree with us, is that it should be between the establishment and their customer base, or it should be handled at the city level. Every market's different. What works in Fargo may not necessarily work in Minot, or in Williston," said Martinson. "That was our position. It didn't go that way, and so now we'll live within the law."