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Robert Hollingshead exhales after taking a drag of sparkling starfruit from his vaporizer in Missoula Friday. The city's new smoking law updates and expands the 2006 Montana Clean Indoor Air Act to ban vaping indoors, and all types of smoking in certain outdoor areas. Missoula would become the ninth jurisdiction to pass a smoking law expansion in the state.

Missoula’s new smoking law is at once needed, inevitable, fair and likely to hurt businesses, depending on whom you ask.

The law, which updates and expands the 2006 Montana Clean Indoor Air Act to ban vaping indoors, and all types of smoking in certain outdoor areas, is running through the wringer at Missoula City Council, now in its fourth week of discussion.

Missoula would become the ninth jurisdiction to pass a smoking law expansion in the state — the most recent being Yellowstone County, whose smoking law is being challenged in court even as it takes effect this spring.

And Missoula, not known for falling in line with the rest of Montana, briefly considered an untried exemption for vape shops, where it’s standard practice to let customers test products in the store. None of the other eight laws exempt vape stores.

That exemption likely won’t happen — nor will the legal troubles — as the Missoula City Council and city-county health department press on, hoping all the troubles go up in smoke.

***

Keith Bowman was done talking about the vape shop exemption.

The owner and manager of a small chain of Montana vape shops wrangled together hundreds of pages of studies, along with a few of his employees, to try and convince the City Council that vaping is not the same as smoking, and should not be treated as such.

Initially, his efforts paid off. The night of Feb. 26, the first public hearing on the smoking law was delayed by Ward 3 representative Heather Harp, who later said she left that meeting with “a different side of the story.”

Other council members concurred, or at least were reticent to shoot down Bowman’s request that vape shops be exempted wholesale. He was one of about a dozen citizens who asked council to reconsider.

“We came very prepared,” Cole Bashor, owner/manager of Stormcloud Vapour, said last week. “We came and fought it.”

Three of the four vape shops in Missoula were represented that night, and when Harp announced she would delay passing the law, the vapers fist-pumped and grinned.

But during the next hearing, Bowman’s testimony was a bit more frantic. He was speaking after City-County Health Department employees spent 30 minutes telling council how bad an idea an exemption would be.

It would add work hours, it would ignore the FDA’s recommendation that vaping was dangerous, it would encourage more vape shops to start up in town and it would be the only law in the state to add an exemption, they said.

The health department did sketch out an exemption for council to consider, although it was never really discussed in detail.

It would have required vape shops to fill out a form or two and pay a $100 fee to allow vaping in their stores.

“As a city, I don’t want to sanction a vice,” Ward 5 representative Julie Armstrong said. “Is this just a complete step backwards?”

Bowman leaned into the best argument he had — vaping isn’t smoking, so don’t lump them together in the law.

“When it comes down to it, it is not the same as cigarettes,” he said. “You’d be basically putting vaporists, who are trying to quit smoking, back out with all the smokers.”

The trouble was, Bowman was the only one making the argument. As health department employees reminded the council, the FDA classifies vape juice as a tobacco product.

The FDA classifies vape juice as a “liquid that may contain nicotine, as well as varying compositions of flavorings, propylene glycol, vegetable glycerin, and other ingredients.”

The flavored liquid is heated up into a vapor, which the user inhales. Vape proponents say the vapor is much healthier than smoking tobacco and can help people break cigarette addiction.

And while Bowman initially tried to tug the council’s heartstrings with a story of his grandmother dying before she could try vaping to get her off cigarettes, Amanda Cahill, with the American Heart Association, pulled the other way, telling the council their studies show vape use is rising among minors, and they see more and more people smoking cigarettes and vaping.

One by one around the table, eight council members — a majority — said they wouldn’t vote for an exemption, effectively killing the idea.

***

Lacking an exemption, Missoula vape shops aren’t necessarily in serious trouble.

Under the proposed law, customers who want to test vapor juice will simply have to step outside the store to do so. Store owners could build smoking shelters as well, though that lumps vapers and smokers together, something at which Bowman bristled.

It also makes businesses dependent on weather, said Bashor, who owns Stormcloud Vapour. A rainy day might deter people from buying vape, since they’d have to get wet to try it out.

“If you’re going into the store, you know what you’re going into,” Bashor said. “It would definitely put a huge damper on our business.”

Or vape shops could just ignore the law, as Ward 5 representative Armstrong hinted at in the public hearing.

As the ordinance is complaint-driven, Armstrong said, hypothetically, if no one complains, no one gets in trouble.

“I personally don’t have a problem with people vaping in vape shops,” she said. “Like I said, this is complaint-driven.”

That puts shop owners in an awkward spot, where they could potentially get away with ignoring the law. But that’s not an ideal situation.

Yellowstone County’s smoking law took effect March 1, and bans vaping inside vape shops as well, affecting about eight stores.  

Jason Cornfeld is the manager of Old Skool Vape Society in Billings. His store is outfitted with a full smoking lounge with couches and a pool table.

“I’m stuck inside this store, which costs me three grand a month, and the lounge is kind of moot now,” Cornfeld said. “It’s just kind of asinine.”

Cornfeld’s been in the same spot for two years, and he’s confident his neighbors won’t file complaints against him to the health department, but he’s not comfortable skirting the law wholesale.

Next year, when his lease is up, he’ll likely move to a smaller space unless the law is overturned.

Yellowstone County’s law is being challenged in court by the local tavern association, whose members are upset at the city council’s allegedly surreptitious passing of the law, during a 7 a.m. public hearing.

That was after a majority of citizens voiced complaints against it, according to the lawsuit.

But mostly, the tavern owners are upset at the forced nature of Billings’ law, which bans smoking within 20 feet of any business’ doorway and puts the onus on business owners to enforce it. They can be charged with a misdemeanor if there are too many complaints, according to the law.

“Rule No. 7 (the smoking law) is an arbitrary and capricious exercise of governmental power,” the lawsuit reads. “(It) enjoyed literally no legitimate public support before its passage.”

Missoula’s law makes the doorway ban optional — so a similar suit is unlikely — but council members were careful not to open themselves up to a lawsuit by exempting the vape shops.

Cornfeld said he’d be interested in joining the tavern association’s lawsuit.

“You’re a grownup, you can decide not to go there,” Cornfeld said. “If you go to a vape shop, you should expect vaping.”

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City, County Government Reporter

Government reporter for the Missoulian.