The smoking ban passed in November that South Dakota voters thought was pretty clear is proving instead to be hazy.
While most of the owners of Yankton’s bars, restaurants and casinos have ensured that smoking no longer takes place in their establishments, one business is taking a different approach that is leaving some citizens fuming.
Since the ban took effect Nov. 10, there have been at least five reports to police of people smoking at Tobacco Road in the 900 block of Broadway Avenue. The latest report was received Friday evening, though when police arrived they found no one smoking and ash trays in the establishment clean.
Because smoking is being allowed to occur in Tobacco Road — something representatives of the business don’t dispute — the owners of other establishments who once enjoyed the patronage of smokers are crying foul.
“We’re losing business every day,” Gary Boom of Boomer’s Lounge told the Yankton City Commission at its Dec. 13 meeting. “Some of us are even thinking about laying people off. It’s a big problem — a lot bigger than the petty offense of smoking.”
Yankton isn’t the only community with questions about the new law. Sara Rabern, a spokesperson for South Dakota’s attorney general office, said it has received hundreds of inquiries regarding the ban.
“There are no official opinions (from the attorney general’s office) at this time, and no one has requested any official opinions,” she said. “But because of the wide variation of inquiries … the AG’s office has basically just been talking with the state’s attorneys and city attorneys on these issues. It’s a petty offense, so the AG’s office can’t really get involved in prosecution. It’s coming down to the state’s attorneys determining how they are going to handle it.”
Rabern said she expects the law to be the subject of various pieces of legislation in the 2011 legislative session.
The most pressing issue in Yankton is the interpretation of a portion of the law that reads, “Any person that owns, manages, operates, or otherwise controls a public place or place of employment shall inform persons violating [that no person may smoke tobacco or carry any lighted tobacco product in any public place or place of employment].”
The owners of Tobacco Road say they are in full compliance with the law.
“This is not an ambiguous statute, and there can be only one interpretation,” they told the Press & Dakotan. “We would suggest our critics actually read the new law or have someone explain it to them.”
They are not alone in their view. Yankton County State’s Attorney Rob Klimisch said that, while he is still considering how he will enforce the smoking ban, it appears that is the correct interpretation.
“If you read the law, it looks like the owner’s only responsibility is to let people know (what it says),” he stated. “Their responsibility ends at that spot.”
Klimisch said he will consult with other counties to see how they plan to handle the situation and then have a meeting with law enforcement and affected business owners. He expects that to occur in the first two weeks of January.
“I’ll let all the affected people know what is expected of them and where things are going to go,” Klimisch said. “I want everybody to be playing by the same rules. It’s not fair that you have a business interpreting something a little differently.”
However, one area of the ban needs no explanation, he said. Those caught smoking will be fined $25. Klimisch stated that he has seven such complaints filed by police officers and, if after reviewing the reports it is determined those individuals were smoking, he will press ahead with issuing fines.
District 18 Rep. Bernie Hunhoff (D-Yankton) said legislators put the burden of the law on smokers and not the business owners out of the belief that South Dakotans are law-abiding citizens.
“Everybody has an obligation to know basic laws — like stopping at stop signs, buckling your seat belt, paying your taxes on time and, now, not smoking indoors in public places,” he said. “Obviously some bar owners are less enthusiastic about the new law than others, but the primary responsibility is on the smoker to obey the law. You can play games with any law, but this one is simple: You don’t smoke indoors in public places. Ninety-nine percent of the people know what it means and will obey the law. The other 1 percent will eventually come around.”
With that in mind, Hunhoff said legislators crafting the ban didn’t expect local law officers to be patrolling businesses looking for smokers.
“That would probably be about as effective as patrolling gravel roads for stop-sign violations,” he said. “We rely on the integrity and honesty of South Dakotans to follow the laws, and the vast majority do just that.”
District 18 Sen. Jean Hunhoff (R-Yankton) agreed that the intent of the law is clear in that the public did not want any exceptions to smoking indoors at a public place. Local governments will have to figure out how to best enforce the ban, she said.
“Other communities in the state are being proactive and working with businesses to create outdoor smoking options,” Sen. Hunhoff stated. “The city has the authority to renew liquor licenses in this community. In their review process for license renewal, non-compliance with statues could be taken into consideration for non-renewal. Local control can be proactive and/or punitive in dealing with noncompliance.
“This does also raise the question of, does a citizen who enters an establishment expecting a smoke-free environment — but smoking is occurring — and gets sick have any cause for civil litigation against the owner of the business for not maintaining a smoke-free environment?” she added.
None of Yankton County’s three legislators mentioned plans to introduce legislation to amend the law.
“I’m inclined not to support any changes right now,” said District 18 Rep. Nick Moser (R-Yankton). “We’re still very early on in seeing what the impacts are going to be. I think you need to give these local governments an opportunity to work some of these things out before you just go and automatically change the law.”
Rep. Hunhoff said he would be open to clarifications and improvements.
“Someone in state government — probably in the health department or the attorney general’s office — should write a summary on the do’s and don’ts of outdoor smoking areas,” he said. “I’ve been contacted by bar owners and contractors who have good questions and seem to have a hard time getting answers.”
As officials work their way to finding a definitive approach to enforcing the law, it’s the police officers and sheriff’s department employees on the front lines who are stuck in the middle of public expectations of the law and the limits of the letter of the law.
“Everybody’s got their interpretation,” said Yankton Police Chief Brian Paulsen. “The only thing everybody is in agreement on is, it’s a horribly written law.”
He was the police chief in Plattsmouth, Neb., when that state passed a similar smoking ban.
“It was made to create a fair and even playing field,” Paulsen said. “South Dakota did not do that well.”
He said officials with Tobacco Road had told him they would actively prohibit smoking in the establishment after it was raised as an issue before the City Commission in November. However, Paulsen later learned that smoking was being allowed again and that a flier was being distributed to inform smokers of the law.
“(The owners of Tobacco Road are) covering (their) bases, but (they are) leaving (their) patrons out there to hang,” he said. “To me, what (they are) doing is totally disrespectful. (They are) being driven by the almighty dollar, and eventually I think it will come back to bite (them). (They aren’t) hurting anybody but the rest of the businesses. I think, eventually what is going to happen is, (they) will need support for something and the rest of the businesses will say, ‘No, you cut our throats.’ That’s what it is. You’ve got one (business that) doesn’t want to play fair with the rest of the businesses.”
Paulsen said his officers won’t begin doing walk-throughs of establishments looking for smokers, but they will respond to complaints.
“I don’t want anyone to be harmed by the law business-wise, but we’re kind of stuck in between,” he said. “We’re going to be complaint-driven and won’t initiate any type of formal action on our own. We’re not going to start walking bars just to find people smoking. I don’t think that’s fair to the establishments who are playing by the rules, versus the single one in town that isn’t.”
By Nathan Johnson