Opponents of smoking ban gain a delay

South Dakota’s statewide ban on smoking is headed to a courtroom - probably within a month - as bar and gaming facility owners successfully won a stay Monday in Hughes County Circuit Court.

The delay means smokers can continue to light up in bars, restaurants, Deadwood casinos and video gaming establishments. Ban opponents say the public should get to vote on the issue.

A hearing date has not been set, but one is expected quickly, said state Attorney General Larry Long.

“I can see a scenario where the judge has his decision within 30 days,” Long said. “I think we’ll see within two to three weeks, it’ll go to trial.”

Circuit Judge Mark Barnett of Pierre on Monday delayed enforcement of the smoking ban until the lawsuit is decided. The Legislature passed the law earlier this year to ban smoking in bars, Deadwood casinos and video lottery establishments.

Last Thursday, Secretary of State Chris Nelson said 8,845 signatures on petitions to put the issue to a statewide vote were invalid. It meant the measure fell 221 signatures short of the number needed to put the issue on the November 2010 ballot. Ban supporters challenged almost 10,000 signatures.

But a decision in circuit court probably won’t end the fight to enact the contentious legislation.

“I would suspect that whoever loses will take the case on up to the Supreme Court,” Long said. “Judge Barnett will not be the last word on this.”

Petitioners who filed the stay against Nelson included Don Rose, owner of Shenanigan’s Pub in Sioux Falls.

“It was something we had to do,” Rose said. “All we’re saying is they took away the people’s right to vote on this over a minor technicality. We want people to vote on it.”

Nelson discounted 2,552 signatures because of errors made by notaries. In many cases, the notaries failed to put a correct expiration date of their commissions on petitions they notarized, said Larry Mann, a spokesman for the smoking-ban coalition that includes Deadwood gaming, the Music and Vending Association, the Licensed Beverage Dealers of South Dakota and video lottery establishments.

Mann said the coalition hopes the judge will rule that notary errors should not disqualify otherwise valid signatures.

“You have to take into account the intent of the person signing that petition, who did so being a registered voter but was disqualified due to a mistake,” Mann said. “That seemed wrong to us. If we had had 10,000 people who were not registered voters,” that would have been a different situation.

Had the petition effort not taken place, the law would have gone into effect July 1.

“Certainly, we’re not surprised. This is unprecedented, and we need to figure out the logistics of it,” said Jennifer Stalley, director of government relations for the American Cancer Society and project director for South Dakota Tobacco Free Kids. “I think we need to have the legal process play out. Certainly, we’d like to see South Dakota smoke-free sooner rather than later, but we’ll see how this plays out.”

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