No Country for Smokers
Wednesday, October 14, 2009
By Ben Cannon
Jackson Hole, Wyo.-At the Virginian Saloon on any given Wednesday night, the barroom gets hazy with a cloud of cigarette smoke. That’s when this iconic, rough-around-the-edges dive bar hosts a popular karaoke night. The Virginian can become pretty smokey anytime, of course, but for the bar patron on karaoke night, expecting to party in an atmosphere of cigarette smoke is a surer bet than the bar’s dollar shake-a-shift game.
The shake-a-shift, usually called shake-a-day elsewhere, is a legal roll-the-dice game where the pot often exceeds a thousand dollars, although the house doesn’t get any of the money. It’s an old barroom staple in this part of the country. While gambling is more regulated in Wyoming (outside of Indian reservations) than it is across the border with Montana, where gambling is a big part of the economy, the shake-a-day is a part of Wyoming saloon culture. It remains, more or less, an acceptable barroom game.
But public opinion toward another Old West barroom regular has shifted in line with the rest of the country, and various venues that still allow smoking are increasingly rare.
While the omnipresent electronic gaming and casin
os in Montana don’t appear to be going anywhere, the iconic smokey barrooms of that state are now just a memory. On Oct. 1, Montana became the most recent state to prohibit smoking indoors of all public places. Bars across Montana have scrambled, several news outlets reported, to concoct new ways to provide alternative smoking areas, by putting chairs and heaters in adjacent garages, or even building makeshift “butt huts” outside.
The Wyoming state legislature, meanwhile, has declined to touch the issue, with few indications it might pick it up in the forseable future. Some have suggested the influence of tobacco lobbyists in Cheyenne is to blame. But others, including a state representative involved in the smoking issue in Teton County, say Wyoming legislators are politically hardwired to avoid what they perceive is over-governing, which would include passing a statewide smoking ban. Legislators have decided instead to let individual communities decide whether to implement local smoking bans.
So when the Teton District Board of Health took it upon itself in March to pass a county-wide rule that would prohibit smoking inside public places, with an exception or two, it followed a few other communities that have passed some kind of smoking ban. Cheyenne, Evanston and Green River have adopted smoking rules (yet bars are exempted in Green River), but no other county health board in the state has taken on smoking, according to county attorney Keith Gingery.
A lawsuit filed soon after the vote put the ban on hold, allowing people to keep lighting up in the Virginian, which happens to be the only bar in the valley that has not voluntarily prohibited smoking. The owners of the Virginian Saloon and three other organizations are challenging the ban.
In September, Ninth District Judge Nancy Guthrie denied a request by the board’s attorney to dismiss the challenge to the smoke-free rule. The matter is now expected to be decided in a hearing about public health, civil liberties and the jurisdiction of the appointed county health board. It will be the local battle that decides whether Jackson Hole will holdout against the changing tide of public attitude about where people are free to smoke in this country.
Health board member Dr. Brent Blue, who spearheaded the smoke-free rule, said he expects the judge will eventually rule in favor of the smoke-free rule, which would abolish smoking at the Virginian and prohibit it within 20 feet of the entrance of any public place.
“The rule has been delayed only by the lawsuit, funded by the tobacco industry,” Blue said in an interview. “We totally expect to beat the lawsuit.”
The fact that the smoke-free rule would most obviously affect only the Virginian makes the shift relatively painless, Blue argues. Besides, he added, there is no guarantee that new ownership at another bar couldn’t decide to end an existing no-smoking policy.
“There’s nothing to say the Cowboy Bar couldn’t change tomorrow,” he said. “And if it doesn’t make that big of a difference to anyone, why not go ahead and do it?”
But Steve Freudenthal, attorney for the plaintiffs, said the case could come down to whether the county health board has jurisdiction to impose a smoke-free rule, outside of private clubs and Jackson’s lone tobacco shop, which are exempted from the ban. Freudenthal is a Cheyenne attorney with a history of representing various trade organizations in the state, including the Wyoming Lodging and Restaurant Association. He also happens to be the brother of Wyoming Gov. Dave Freudenthal.
“At the first level in this lawsuit, the primary issue is whether a health board has the authority to implement a smoking ban,” Freudenthal said last week. “They either have it or they don’t.”
The two sides have different interpretations of a key Wyoming state statute on jurisdictional rules for district boards of health. It says:
County and/or city and district boards of health may enact rules and regulations pertaining to the prevention of disease and the promotion of public health in the area over which such respective boards have jurisdiction.
County health board attorney Keith Gingery, who incidentally is also the state rep. who said legislative inaction on smoking isn’t related to special interests, said he believes the statute is clear, and favorable to the smoke-free rule.
“The interesting part is it’s the same authority given to the [Wyoming] Department of Health, and nobody ever says [to the DOH] ‘No, no we didn’t mean to be that broad with you,” Gingery said. “If we can’t [pass a smoking ban], does that mean also we can’t regulate tattoo parlors, hotel pools, restaurants?”
But Freudenthal counters that the smoke-free rule would overstep the jurisdiction of a district health board charged with preventing contagious disease, not making rules about an environment where potentially exposing oneself to second-hand smoke is a choice.
“What about if a county board of health determines working on a drilling rig is dangerous?” Freudenthal said. “If a county board of health starts banning smoking on the grounds of second-hand smoke, what if they said they were going to ban working on rigs because that’s dangerous?”
In her decision, Judge Guthrie will weigh whether the smoking ban meets equal protection laws, which state that a law must be evenly applied to everyone. Freudenthal argues the smoking rule should be struck down in part because it forbids employees from smoking in company-owned vehicles. Additionally, a no-smoking sign must be displayed inside each vehicle. This could be tricky business, considering that a Lander-based worker, for instance, driving a company truck probably wouldn’t have any idea about the smoke-free rule.
Freudenthal says this could make the rule unconstitutional under so-called void for vagueness laws, a legal concept that states a statute is void and unenforcable if the average citizen can’t be expected to know that a certain conduct is prohibited. This accounts for the involvement of the Wyoming Trucking Association as another a plaintiff, the attorney said. (The fourth plaintiff is the Wyoming State Liquor Association.)
“The moment I drive into Teton County, whether I know about the smoking ban or not, I am subject to up to a $1,000 fine and up to a year in jail,” Freudenthal said, referring to the most severe penalties possible for violating the smoke-free rule. It is not clear to what extent authorities would enforce the ban.
The smoke-free rule is not expected to be decided in a trial or with the participation of witnesses, but in a summary judgment, based on a judicial review of the entire case, attorneys from both sides said.
The judge could rule on the case sometime in the first months of 2010, Gingery said.
Until then, smokers will continue to light up in the Virginian, where, according to some, cigarette smoke is as much a part of the atmosphere as the jukebox, the shake-a-shift and the baskets of free popcorn available at the bar.
A smokey bar is an increasingly rare site in America, but it remains to be seen whether its time has come for Jackson Hole. One thing is clear: some form of public smoking ban found today in all but 14 states, including Wyoming, the spark of community bans across the state, and the dominance of voluntary smoke-free policies locally, has spelled out the shift against smoking in general.
“I think some people are already saying ‘Why didn’t we do it here sooner?’” Blue said. JHW
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No Country for Smokers | Planet JH News Article: Cover Stories
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