Pending state legislation would gut smoking ordinances in Missoula and other cities, and it disregards established science on the dangers of secondhand tobacco smoke, Missoula officials said Tuesday.
House Bill 758, which passed out of a Senate committee Monday, would exempt establishments with video gambling machines from local smoking ordinances. It would also levy another fee on video gambling machines and send the money to the general fund.
That would mean a single keno machine would allow a liquor-selling business to flout a local ban on public smoking.
Missoula's was the first secondhand smoke ordinance in the state. It went through more than 18 months of public hearings and was approved by the Missoula City-County Health Board, the Missoula County Commissioners and the Missoula City Council before it was phased into effect in late 1999. That is the process necessary to balance property rights and public health, Missoula Mayor Mike Kadas said Tuesday.
"It's an issue that is much more properly dealt with at the local level," he said, "and I think it will get better results than we'll get with one hour of hearing in the Legislature."
Kadas and the mayors of Bozeman and Great Falls testified at the hearing in Helena on Monday.
"This will definitely affect our ordinance," he said, "even though they said that was not the intent."
Ellen Leahy, health officer and director of the Missoula City-County Health Department, said the hearing was "a very disappointing experience" for public health and the public process.
"The testimony, including the mayor of Missoula and myself, was overwhelmingly against," she said. "And two Missoula senators voted for it, which I found surprising considering our long history with air quality and the money we've spent."
"Listening to the debate was like going back in time five years," she said, "at least."
Sen. Carolyn Squires, D-Missoula, who voted for the bill on the Business and Labor Committee along with Vicki Cocchiarella, also a Missoula Democrat, said it's an economic issue. Businesses in Helena, especially taverns, were seriously affected financially during the six months that Helena's smoking ban was in effect, she said.
"People don't realize what the financial impact is," she said. "We're talking $300,000 to $400,000 for a liquor license. And people want to stop the flow of customers. That impacts the banks, the businesses. It causes people to be laid off, to lose their jobs."
Squires also sees it as a property right, she said.
"How do we have the right to take this money away from these people who own these establishments?" she said.
"I have respect for the voters," she said, "but I don't know if they fully understand the economic consequences of (a ban)."
Squires thinks that people are overreacting to this bill and that not much will change. Businesses that have a bar-and-restaurant combination in Missoula will not necessarily start allowing smoking in the restaurants, she said.
"It's owner's choice," she said. "But I don't think anybody in Missoula is going to change much."
Helena taverns saw their business revenues plummet 15 percent to 40 percent during the smoking ordinance enforcement, said Ann Tedesco, a consultant to the Montana Tavern Owners Association. One owner was two or three payments away from foreclosure.
"They have had some serious losses because of this ordinance," she said.
Beer distributors reported a 15 percent drop in beer sales in Helena's city limits and a 12 percent to 30 percent rise in beer sales outside the limits.
"It just spoiled going out after work for a drink if you like to smoke a cigarette or a cigar with it," she said.
Business has come back some, she said, but, "People establish new habits. … We're going to have to develop new customers."
Banks testified Monday that the ordinance caused devaluation of properties and liquor licenses.
"It's just not financially feasible," Tedesco said.
Leahy said that the bill, should it become law, would pre-empt large portions of Missoula's smoking ordinance and would not just affect bars and casinos in the state, she said. While the law now ties video gambling machines with liquor service, Missoula County has 10 convenience-store-type businesses that were grandfathered in when it began in 1989, Leahy said.
"So places that have video gambling machines, like the very-high-traffic convenience marts, where children are in and out all day, will be exempt," she aid.
Missoula's ordinance exempts businesses or areas of businesses where liquor sales are the primary business. For instance, in a hotel, the lounge is exempt from the smoking ban, but the rest of the building is not.
"HB758 opens up the entire premises if there's a gaming part," she said. "If you have one keno machine on the entire premise, we can't touch you with a smoking ordinance."
Missoula would lose infrastructure for the future, she said, when new businesses and buildings that would have been required to install separate ventilation systems to keep smoking and nonsmoking air apart will not have to do so because they are exempt from the ordinance.
Missoula's enforcement zone contains 60 restaurants that have bars and 55 bars that may or may not serve food, according to Health Department numbers. If they do serve food, the food service area is exempt if it is the secondary business.
Protect Montana Kids, a coalition of heart, lung and cancer health advocacy groups, said secondhand smoke is the third leading cause of preventable death in the United States. It kills an estimated 53,000 people each year, 179 of them in Montana.
"We see this as a huge step backward for a community's right to control its air quality and for the air itself," said Protect Montana Kids project director Dave McAlpin.
The economic allegations, he said, are "unproven and undocumented."
"This indicates, too, the power of the tobacco and tavern lobby," he said. "Let's be honest about that."
Reporter Ginny Merriam can be reached at 523-5251 or at firstname.lastname@example.org