Fargo Cigar Club Owner Thinks He’s Found A Way Around New State Smoking Prohibition

no-smoking

The owner of JT Cigarro’s in Fargo thinks he’s found a loophole in the smoking ban law:

The new law lists few exceptions, but one of them is “any area that is not commonly accessible to the public and which is part of an owner operated business having no employee other than the owner operator.”

Coulter said he runs an owner-operator business out of a separate room in the JT Cigarro building, and he is the only employee. He plans on letting customers smoke inside that room.

“We’re gonna follow the law to a T … the way they wrote it,” he said. “I don’t write the laws; they do.”

Not surprisingly, to anti-tobacco gestapo sees things differently.

There might be some problems with his understanding of the law though, said Robyn Litke Sall, a tobacco prevention coordinator for Fargo Cass Public Health, one of the organizations in charge of enforcing the law. …

“If he’s allowing other people to be in there other than himself, that’s not allowed by the law,” Litke Sall said.

Coulter argued the exemption states that the “public” must not regularly enter the area, but patrons who wish to smoke could still come in.

Litke Sall said that’s not her read of the law.

“Those people that he’s going to allow in there, I don’t know how he could exclude them from being members of the ‘public,’ because we’re all members of the ‘public,’ ” she said.

I was talking with a friend about this the other day, and we were wondering if you could get around the ban by closing off your business, or a part of your business, to “members only” and charge a fee or something to enter? It wouldn’t be open to the public. It would be open to members. The problem is that the law also prohibits employees from being in such area, so the business owner himself/herself would have to be the exclusive worker in that area.

Not very convenient.

Still, though, let’s admire the absurdity here. This is a business that caters exclusively to smokers. The patrons go there to smoke. The employees apply to work there knowing the cornerstone of the business is cigar smoking. Nobody is being forced to expose themselves to tobacco smoke. It’s a choice they’re making. But now, thanks to the law, they aren’t allowed to make that choice.

Because some people think they know what’s best for others.

Rob Port is the editor of SayAnythingBlog.com. In 2011 he was a finalist for the Watch Dog of the Year from the Sam Adams Alliance and winner of the Americans For Prosperity Award for Online Excellence. In 2013 the Washington Post named SAB one of the nation's top state-based political blogs, and named Rob one of the state's best political reporters. He writes a weekly column for several North Dakota newspapers, and also serves as a policy fellow for the North Dakota Policy Council.

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  • http://Sayanythingblog.com The Whistler

    You could always have the help sit in a reception area outside of the smoking room. Even bars could do that. Have a smoking room, but you’ve got to run your own drinks.

  • Captornado

    Busy bodies always know best. Shame on him for trying to stay in business.

    • two_amber_lamps

      LIBERAL FASCISTS always know best.

      Fixed that for ya!

  • Tim Heise

    silly liberals

    • dakotacyr

      i supposed you missed all those republicans who voted for the measure.

  • Roy_Bean

    The thing I don’t understand is that the same left-wing nut cases that are determined to make tobacco illegal are trying to make pot legal. Maybe he should tell them that there is pot in the cigars.

    • zdavid53

      First they came for the smokers, then they ame for the rich people, then they came for the gun owners. We just never thought they would come for us
      .

  • headward

    This has always bothered me. I keep hearing about how it’s for the health of employees and how they don’t *sob* have *sob* any other options. One option is always not to work in an environment that you’re not comfortable with. By applying and accepting a job you’re accepting the environment you work in. I’m not a big fan of the catholic church so you won’t see me applying or working there. I’m also not going to push my agenda on them by requiring all employee accessible bathrooms to carry condoms.

    The public definition is a loose one at best. I see stores state that their bathrooms are for customers only. They are not considered public so these private businesses are not public either. Freedom is about choice. We choose what businesses to support and what to ignore. Quit limiting choice for the consumer but making more choices for them. Maybe they should look at the huge restrictions on opening a bar or selling tobacco.

    • LibertyFargo

      “The public definition is a loose one at best. I see stores state that their bathrooms are for customers only. They are not considered public so these private businesses are not public either.”

      his is a PERFECT example. But be careful, there might be a city council meeting that will require that all downtown business MUST make public restrooms available to anyone, customer or not… you know… for the children…

    • headward

      Just thought of something else. No employee can be in there. But if you have contractors that seems to slip by that as well. Contract the help that operates the smoking room.

  • kevindf

    Gee, the state legislators wouldn’t do anything without first knowing what all the consequences will be, would they?

    • two_amber_lamps

      NEVER!

  • RCND

    Every bad law needs a good legal challenge

  • LibertyFargo

    He could separate that “club” as a separate “business entity” and share ownership with a small handful of employees all as owners/operators of the small “smoke club” that is not open to the public but by member who sign liability waivers and the whole 9 yards. This way one of 3-4 “owners” could be in the room. The private club/members only idea SHOULD follow the letter of the law while violating its spirit… which in this case I a good thing for individual liberty.

    Not only that but it could be a creative way to get a couple of young investors into the business ownership world and not merely employees.

  • SportsDoc

    First, I know I’ll be vilified as a whiny liberal, but you can look back at all my posts and see that is not true. I am quite conservative.

    But, I am a health care Professional (dentist) who likes to think I am using science over emotion on this issue. Also, when we need government regulation, which we sometimes do, where do we draw the line? If you truly believe that government should stay out of the smoking issue, then you have to believe there should be no, zero, nada regulation. That brings back smoking anywhere and everywhere. Airplanes, buses, hospitals, etc.

    Is that what you believe? And if you believe in some regulation, where do you draw that line? It’s a slippery slope, no doubt, and I wrestle with that, myself.

    But, where I end up is that, in the case of second hand smoke, the detriments to those around the smokers supersedes the right of the smokers, and the science proves that out. Tough call, no doubt, but I am very comfortable with that stance, because of the science we have. I despise the “well, just don’t go where people smoke” statement. It has no basis in fact or reality, especially if you believe there should be no regulation, because there would be smoke everywhere. And if you believe in some, limited regulation, again, where do you draw that line, and who gets to decide where that line gets drawn?

    In this case, because those who oppose smoking bans for whatever reason held their ground and did not get involved in the solution, the solution was made without them, and a majority of North Dakota citizens approved that solution by a 2-1 margin.

    • RCND

      I respect your background and concerns, but I think you missed the point of whose rights are being violated. It is not the smokers, but instead property owners, and their right to allow smoking at their establishment.

      I also don’t completely buy your analogy of regulation as it pertains to on busses, airplanes, and hospitals. The owners of these property types had already for the most part been banning smoking, as is their right to do, before laws were passed. They did so as a business decision. The bottom line is most property owners will do what is best for their business, and most were already on track to not allow or curtail smoking. They don’t need the help of the heavy hand over government to get there. Those that choose to continue to offer smoking on their property would bear the consequences (good or bad).

      • SportsDoc

        And, I respect your right to your opinion as well. What I will say about property owners is if they are open to the public, it is public and subject to regulation, whether it is owned privately or not (and, aren’t most businesses and establishments owned privately yet open to the public?).

        As to the analogy, go back to the 60’s. People smoked in hospital rooms for God’s sake, airplanes, buses, offices, everywhere. The private owners who changed did so because of the uproar that came from the regulation. Once people realized how clean their air could be, they wanted more. They discovered they could go out and have a meal or work without being bombarded with second hand smoke, and that’s what most wanted. Those businesses did not change on their own, it took regulation to start the trend. It did advance from there, because it was deemed good business, yes.

        We are obviously going to disagree on what too much regulation is in this instance, and that’s fine. I will side with science here, which happens to coincide with more regulation, but not because it is more regulation, but because it is the right thing to do. And I’m not talking about the lives of the smokers, I’m talking about the lives of those around them.

        I will also say, as previously, the industry that wanted to maintain some exceptions did not want any part of this measure, and as such offered no input into its writing, so I have little sympathy for them coming in after the fact with the “Whoa is me” mantra. I believe there could have been room for exceptions, but without compromise we get just what the more hard core no smoking advocates wanted in the measure, which then passed with 67% Yes votes. And it passed, in my opinion, because it was so much better than what we have now and most people were sick of having their breathable air contaminated by the few. So they passed handily what was presented to them.

        You can dislike it all you want, but in a state where conservative legislators win with large majorities in most districts, and the lone statewide Democratic win was by an eyelash over an opponent who couldn’t get out of his own shadow, this was not a measure precipitated nor won by liberal voters. This measure won across the board among all parties and independents in North Dakota. and, it won convincingly.

        • http://Sayanythingblog.com The Whistler

          It seems to me that if you don’t like smoke, and I don’t, nobody is making you go into that private business. Why don’t you just be happy that other people have freedom to do what they want?

          • SportsDoc

            In no small part, because that is about the best answer your side can come up with, the vote was 2-1 in favor of the more restrictive smoking ban. There are a lot of people who don’t consider that a solution, even though many here do. Even here in Williams County, where a large majority of the influx of new workers are tobacco users, I would estimate 80% judging by what I see in my practice, the vote was 62% Yes.

            You are welcome to your opinion, as am I, but the citizens of ND, again a very Conservative lot, have spoken on this issue and spoken resoundingly in favor of the more restrictive smoking ban.

          • RCND

            They spoke resoundingly because they did not fully understand it. They basically saw that it said smoking ban and said sure why not. Part of that was not helped by the hospitality industry not standing up for themselves either, admittedly, but all that was ever discussed by the anti smokers was second hand smoke arguments. I do think that there would not be anywhere near the amount of griping there is now had it been limited to what you defined above as a public place, but what was never fully discussed was e-cigarettes and smoke shops.

            So now I ask you, as a person knowledgeable of science, if this measure was to spare us all second hand smoke, why were e-cigarettes included… keeping in mind that they emit no second hand smoke? I also ask you, as a self-professed freedom loving conservative, why were smoke shops included… places where occupational hazards of second hand smoke are understood by those working there, and where customers go specifically to smoke?

          • SportsDoc

            Specifically to e-cigarettes, it was because not all of them are the same, they are not regulated, so there is no guarantee what they will emit in the future and some of them do emit toxins. Do I favor that part of the measure? No. But I do understand the reasoning behind it.

          • dakotacyr

            oh, so now the voters are stupid. Nice! The voters knew exactly what they were voting for.

          • http://sayanythingblog.com Rob

            I dont think North Dakotans are really all that conservative.

            Nor do I think you should so lightly dismiss Whistler’s argument. Individuals should have the right to make their own lifestyle choices.

          • SportsDoc

            Rob: I go back to where do we draw the line and who draws it then? No one here wants to answer that. If you truly want no government intervention, then we go back to smoking everywhere. Is that what you are in support of? And, if not, where do we draw that line?

            It is convenient, by the way, that you jump in where someone else has taken a different turn towards me on this that is not the core part of my position, but you don’t seem to want to debate my original post or position.

            If you had your way, Rob, where would we ban smoking or would we not ban it at all?

            If we don’t ban it at all, with the science we now have on second hand smoke, what are the rights of the non-smoker whose life is now jeopardized by the intentional acts of others?

            And if we ban it only in certain places and instances, who gets to say what and where those places and instances are? You? Me? Smokers? Non-smokers? The CDC? The government? The citizens?

            In this case, like it or not, it was the citizens by an overwhelming majority.

            You tell me how you would handle this, Rob. Don’t just sit back and chastise those who might handle it differently than you, like myself. I have my position, it is backed by facts and not emotion or steadfast unbending belief in no government involvement, when we know that no government at all creates anarchy.

            We have to pick and choose our fights. I am very comfortable taking a stand on this one, regardless of how few posters here agree with me on this particular issue.

          • http://sayanythingblog.com Rob

            I think it’s appropriate to ban it in government owned areas. Public buildings. Parks. But private property should be up to the property owner.

            And you assume thst , without government bans, smoking policies wouldn’t change. I’d argue that changing public attitudes would have driven changes in private policy, and in ways less rancorous than laws like this.

          • dakotacyr

            rancorous? the people voted overwhelmingly to ban smoking. The world will go on. I doubt that this measure was rancorous at all. Just the typical people screaming about private property, yada, yada, yada.

          • http://sayanythingblog.com Rob

            Yes. Our silly notions about property rights.

            How stupid of us to think that such things matter.

          • http://Sayanythingblog.com The Whistler

            While you’re obviously right about the way the election went, the public was wrong. They shouldn’t presume to decide what other people do on their own property. This kind of thinking will have bad consequences.

          • spud

            Sorry to tell you this but they are not going to rewrite the entire state constitution for North Dakota because you think voters are wrong they did not side with you. Considering how most measures went this year maybe you have had your reality check. Go Bison.

          • http://Sayanythingblog.com The Whistler

            I suspect you’re right. It’s a bad thing in this case and we’ll live to regret it. Of course personally I prefer smoke free, I’m not that selfish to impose my wishes on everyone else.

            Bison suck.

          • spud

            Sioux choke what is that coaches name Chokestol!!!! Since you guys have not had bulls to play us in football until now that you need the attendance it is just a nice friendly jab.

          • http://Sayanythingblog.com The Whistler

            Who is it that ran away because they couldn’t beat the Sioux? I’ll give you a hint. It’s the school without the Nickel Trophy.

          • Flamejob5

            I don’t even understand how proposals like this are eligible to be voted upon by the public. We are a Rule of Law nation which was designed to protect the rights of the individual (smallest minority), not mob-rule by the mass. When did this suicidal process begin to take root? (Full-blown Democracy)

            How can freedom-killing, direct-to-citizen propositions like this even be allowed to occur in a Rule-of-Law Republic and bypass the legislative legal process our elected representatives are sworn-in to do in the state legislature who’s duty is to determine the Constitutionality of proposals such as this?

            It’s as if we have two parallel governments (yet opposing) forms of government operating simultaneously. It’s almost as if the Constitutional Republican form doesn’t work to push some national agenda…then it’s on to plan B which is employ the Direct-Democracy Mob-Rule form.

            Something isn’t right here.

          • http://Sayanythingblog.com The Whistler

            The way I understand it is the supporters had every right to propose the law and support it. Now somebody could challenge this law as unconstitutional, but I wouldn’t put any faith in them winning. The state has far more power to take this action, wrong as it may be, than would the federal government.

        • tony_o2

          “Public place” infers that you have a right to be there. If the owner does not want you there for any reason, they can kick you out because you have no right to be there. A bar is not a public place.

          What input could the opponents of this measure have given when they were writing it? Those who wanted to ban smoking have no intention of allowing exceptions. Case in point is the ban on outdoor smoking shelters with a roof and walls around more than 33% of the perimeter (including walls with gaps between the floor and ceiling, walls with gaps between the boards, or even lattice). Tell me how this part of the ban was meant to protect non-smokers while allowing exceptions for smokers? It wasn’t.

          • SportsDoc

            Wrong! A public place means it is open to the public, not whether someone has a right to refuse service to someone else. If you or I can walk in, regardless of whether or not you or I can be asked or forced to leave, it is a public place.

          • http://sayanythingblog.com Rob

            That’s the definition the anti-smoking Nazis are using, but it’s a dangerous notion for those of us concerned with property rights.

            But there don’t seem to be a lot of people concerned about principles these days.

          • dakotacyr

            Sportsdoc is right here. The private business owner is inviting the public into his/her business. He then takes on certain responsibilities to protect the public while in his establishment. Like it or not that’s the way it is.

            We are concerned about principles, we just don’t agree with yours.

          • http://Sayanythingblog.com The Whistler

            Wrong the person is allowing them to come into their building under the conditions that are in that building. If they want to play loud music of a type that you don’t prefer you have no right to tell them to play Justin Bieber so you are more dancy.

          • http://sayanythingblog.com Rob

            No, what you’re saying is that people who have no specific right to access my property are allowed to come in and impose their smoking preferences on my property.

            And you’re right. You have principles. They just don’t have anything to do with individual or property rights.

          • tony_o2

            By your definition, that would make my house a public place if I held a neighborhood bbq or a garage sale.

          • Flamejob5

            I’d even take it a step further and infer that there is no such collective entity as the “public” whatsoever. …but instead only individuals with individual interests each persuing their happiness.

            So how then could “public interests” (aka: common good) supercede “individual interests” without government unequally & disproportionately taking the position of favoring one individuals’ rights’ over another’s?

            Simply put imo, a bar is a voluntary private business owned by an individual (or possibly more than one) which is open to other individuals who wish to voluntarily enter. A customer does not have a “right” to enter a bar (private property), but rather is being invited to enter voluntarily. If customer does not agree with something they hear, see, smell or taste within the domain of the private property they just voluntarily entered, then they have the free choice to leave.

            They do not have the “right” to force the owner(s) of said private property to adjust the atmoshphere to suit their personal liking. They can make voluntary suggestions… but not use force. …and the government – of which one of it’s primary duties is to uphold & defend private property rights -should absolutely refuse in any manner in participating in doing so either.

            At least thats how the American system based upon individual liberty was intended to work. Today, apparently every member of the entire community has a stake in every business in existance – which then makes it a communal business and thus the owners personal budget an open, communal affair as well.

            Marxism.

          • http://Sayanythingblog.com The Whistler

            Yeah, what he said.

        • Rudie Martinson

          As the representative of the hospitality industry in North Dakota, I will say unequivocally that I was never approached at any time by any member of this measure’s sponsoring committee regarding industry input into the drafting of this ballot measure.

    • http://sayanythingblog.com Rob

      I don’t think anyone is disputing the idea that smoking is bad for you. We’re disputing the idea that the government can prohibit us from making that choice on the grounds of rather specious notions about “public health.”

      • dakotacyr

        “specious”??? Really??? Facts about the dangers of smoking and second hand smoke are not “specious notions”, they are facts.

        • http://sayanythingblog.com Rob

          I’m pretty sure I said smoking is bad for you. I’m not disputing that.

          What I’m arguing against is this idea that the collective has a right to micromanage the choices of the individual.

          Whether or not I smoke, or allow smoking on my property, is none of your business.

  • Thresherman

    The smoking ban was supposed to protect the rights on nonsmokers, but examples such as this clearly show that in a larger sense it is nothing more than out and out persecution of citizens who smoke and the businesses who wish to cater to them. Clearly, to the antismoking Nazis, these people have no rights that they are bound to respect. Nice group of people. doncha think?

  • spud

    The facts are the facts you lost get over it. Whining is pathetic waste of time and that is all you are participating in. No laws are being violated here. Those who petitioned for this followed the letter of the laws of our state allowing for this. When you lose elections you move on and try to win the next one. The rub here is we all know this will not ever change the people want this. Those in favor of smoker’s rights are on the “losing side” of the issue. So go outside and freeze and enjoy your butt because that is the law of the land.

    • Roy_Bean

      The 2nd amendment has been the “law of the land” for over 200 years but you guys don’t quit whining about that.

    • http://sayanythingblog.com Rob

      You seem obsessed with this idea that majority makes right.

      I guess you don’t have any principles.

      • spud

        Your obsessed over an issue that you will always be on the losing side of. Smokers are the one’s without principles they are a minority who keep whining about there rights being violated. Some times the common good for all idea overrides so called property rights. I know of no smokers who cared about my so called rights. Guess what Rob the majority has cleared the house on this issue and by the way get your facts straight this was a super-majority and will continue to be. Went to a bar yesterday wow does it ever feel good to be “winning”. And the chuckles one gets watching someone go out and light up is “priceless”. They are “losing” and I am “winning”. How is that for principles.

        • http://sayanythingblog.com Rob

          I’m sure there was a time that slave owners thought the abolitionists would always be on the losing side.

          Winning a vote doesn’t make you right on principle.

  • Gpolitical

    Unless he made all employees part owner.

    • http://sayanythingblog.com Rob

      That’s an idea.

    • camsaure

      Couldn’t they just be owners of the special room and need not be owners of the whole business?

  • schreib

    I think legislation needs to be drawn up and passed to allow for members only smoking clubs. This is especially true for cigar lovers. When I lived in Texas I lived in a dry county but liquor was allowed in private clubs. I really think this is the way to go. If the club is private and members want to be there to smoke, why not? Are the anti smoking people against others enjoying themselves and not bothering other folks. I hope this might be introduced this session. Any takers?????

    • SportsDoc

      I would be just fine with this.

      • http://sayanythingblog.com Rob

        What’s the difference between that, then, and having a bar or restaurant or other business clearly denoted, from the outside, as a smoking premises so that smokers and non-smokers alike could make their own decisions about whether or not to enter?

        See, you’re siding with the anti-smoking people in this, yet you don’t seem to realize that they don’t want to let us choose. They want to force us to stop smoking.

  • MG

    Convert to a members-only smoking club operated by an ESOP. Or a non-profit smoking organization run by volunteers. Next they will go after the Catholic Church for burning incense and the Boy Scouts for having campfires.

    • http://sayanythingblog.com Rob

      A member’s only club would get around the open to the public thing, but the problem you’re going to have is that workplaces must also be smoke free.

      • dakotacyr

        I guess you missed that section in the measure that refers to “private clubs” so no smoking would be allowed in a “member’s only club”.

        • http://sayanythingblog.com Rob

          Well it’s a very long, stupid and convoluted law so I probably did miss that.

          • dakotacyr

            And the whining continues.

          • http://sayanythingblog.com Rob

            I will always stand up for what’s right, Dakota, against wannabe commissars like you.

            I’m for freedom. You’re not.

  • Rick Becker

    You make it a members only situation as you described above. You also make the entity a multimember LLC with every employee given 1 share or membership unit. The current owner could have 990 units and the 10 employees could each have one. When they quit or were fired, the articles of organization can require forfeiture of the unit, which can be given to the replacement employee. Presto. You’re welcome, JT Cigarro.

  • Rick Olson

    For those of you who are unfamiliar with the J.T. Cigarro story … there have been many in city government here in Fargo who have had it in for that place pretty much from the get go.

    First off, the city started hounding the two guys who own the place about the ratio of food to alcoholic beverages that were being sold in their place of business. The class of license they had at the time only allowed the service of wine and beer along with the sale of food and the food sales had to be at least 50 percent of their revenue.

    The city’s liquor control committee which is made up of mayoral appointees who just happen to be liquor license holders themselves along with the liaison city commissioner who holds the liquor control portfolio. The “good old boys” system is alive and well in Fargo. Anyone who wants a liquor license in Fargo had better be prepared to shell out at least six figures for it.

    It looked like the guys who own J.T. Cigarro were going to be pushed right out of business until they got a window of opportunity. Although I don’t drink or smoke, I do want to say that the guys who own J.T. Cigarro are just a couple of ordinary guys who want to run their business and make an honest buck in the process. The city has made them jump through so many unnecessary hoops, it’s ridiculous.

    A class “A” liquor license (full bar service without food requirement) became available when the Grainery restaurant and bar that was located at the West Acres Shopping Center in Fargo closed down. The license went to the highest bidder for cash. In Fargo, a liquor license is seen as an asset of a business and not just a piece of government paper. The guys who own J.T. Cigarro won the bidding war and the license was reluctantly transferred to J.T. Cigarro.

    Then Fargo became one of the first large cities in North Dakota to enact stricter indoor smoking regulations than the state. Fargo voters approved a city initiative which was stronger by the state law. The initiative forbade smoking in all workplaces including bars and truck stops. Those who wanted J.T. Cigarro to go then thought they would go to work on the smoking front in order to make the place fold.

    As it turns out, it was illegal to smoke in a bar, but legal to smoke in a cigar shop. So, J.T. Cigarro separated their business into a bar and into a cigar shop. You could smoke in the cigar shop but you could not bring alcoholic drinks over from the bar into the cigar shop.

    They built that new building of theirs out on 45th St. S. in Fargo and the place seems to be doing a land office business. The place is always packed.

    Not to be outdone, the city then passes amendments to the city noise ordinance and J.T. Cigarro’s outdoor summer concerts on their parking lot became the focus of controversy. Like I said, there are people in city government who want that place to go away, and J.T. Cigarro has managed to stay one step ahead of them.

    Now the owners announced this “private members club” where people can smoke. I think we can look for a court case on that fairly soon. Could such a case become a test case? The question is this: Will the J.T. Cigarro owners openly flaunt the statewide indoor smoking ban, get hauled into court for violating the statute, which they will then contend is an unconstitutional restraint of their business?

    I honestly don’t see either a state district judge nor the North Dakota Supreme Court ruling against the overwhelming majority of voters who approved the statewide smoking ban that took effect on Dec. 6th.

    All judges in North Dakota ultimately face the voters, because judges are directly elected in North Dakota. District judges get six year terms and supreme court justices get 10 year terms. The governor can fill an opening on the bench with an interim appointee until the next election and then that judge has to run in order to remain on the bench for the balance of the unexpired term.

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