Smokefree law compliance challenge – 7/16/10

Q: Michigan is currently dealing with a local American Legion post that decided that our smoke-free law is un-American therefore they aren't going to comply. Have any of the other states with comprehensive smoke-free laws that cover this type of organization had an American Legion Post refuse to comply (or intentionally break) the smoke-free law? If so, how was the organization brought into compliance?

A:

1. Arizona: The smoke-free law in Arizona, The Smoke-Free Arizona Act, does prohibit smoking in enclosed public places and places of employment, but has seven exemptions, including Veteran and fraternal clubs, such as American Legion Posts. Members, bona fide guests, and employees are permitted to smoke inside the clubs, except inside the areas that are open to the public (but only when members of the public are present). So, for example, if the club has a fish fry or bingo night for members of the public, smoking is prohibited in room(s) open to the public. To date, we have not had any refusals to comply or any complaints from Veteran or fraternal clubs about the Smoke-Free Arizona Act.
    
2. Iowa: The Iowa Smokefree Air Act prohibits smoking in almost all private clubs in Iowa, including American Legion Posts. Complaints about smoking were received for eight posts. Four of the posts came into compliance after receiving their First Notice of Potential Violation letter from the Iowa Department of Public Health. The remaining four came into compliance after receiving their second Notice of Potential Violation from IDPH and the subsequent compliance check from a law enforcement officer.
    
   Enforcement action did have to be taken against one Veterans of Foreign Wars post. However, it was enforcement of the Iowa Alcoholic Beverage Control Act and NOT the Iowa Smokefree Air Act that was used to bring the post into compliance.
    
   The Iowa Alcoholic Beverage Control Act (Iowa Code Chapter 123) provides that: "No liquor control license shall be issued for premises which do not conform to all applicable laws, ordinances, resolutions, and health and fire regulations." Corresponding administrative rules provide that: "Licensees and permittees shall at all times keep and maintain their respective premises in compliance with the laws, orders, ordinances and rules of the state, county and city health and fire departments and the Iowa department of inspections and appeals."
    
   After going through the notice process and the law enforcement compliance check for the Smokefree Air Act, and it was determined that the VFW post was still out of compliance, the Attorney General's Office, in coordination with IDPH and the Iowa Alcoholic Beverages Division, filed an action to suspend the liquor license and/or fine the post for not maintaining their premises in compliance with the Smokefree Air Act (a "health regulation"). The case went to an administrative hearing and the post ended having their liquor license suspended for 30 days. They have been in compliance since that time.
    
3. Maine: In Maine we do have a statewide comprehensive workplace smoking law, and we do not have pre-emption. Workplaces are encouraged to adopt a policy stricter than state law if they wish to.
   
   That having been said, there are only two exceptions to a total ban on indoor smoking in Maine workplaces. These exceptions are for:
    
   1. Veterans’ service organizations chartered under 36 United States Code, Subtitle II, Part B (2004) not open to the public.
   2. Any other club not open to the public in operation prior to January 1, 2004.
       
   Please refer to the attached documents including the brochure for such clubs, the summary of Maine laws, as well as the workplace law and accompanying enforcement rules for details. I am happy to go into further detail if that would be of help.
    
4. Massachusetts: Massachusetts has two examples that may be relevant.
    
   1. The Massachusetts Smoke-Free Workplace Law provides an exemption for smoking bars. In order to be licensed as a smoking bar an establishment must obtain a Department of Revenue (DOR) smoking bar permit. To be eligible for the permit, the establishment must be able to prove on a quarterly basis that at least 51% of its total income comes from the sale of tobacco products. These conditions ensure that establishments that truly rely on on-premises tobacco smoking as a major part of their business can continue to do so.
       
      The Pub was issued a smoking bar permit which was later revoked when the Pub was unable to provide evidence to that DOR that it met the revenue requirement. The owner appealed and maintained that patrons could continue to smoke until he had exhausted all possible appeals. DPH and the local board of health maintained that since the permit was revoked, smoking could not continue. The pub continued to allow smoking for 6 months after revocation, despite receiving numerous tickets from the board. The board of health received complaints from other restaurant and bars in the area which were complying with the law.
       
      The board, after consulting with the police and town selectmen, chose to leverage other existing permits to bring the Pub into compliance. Only 24 hours after presenting the owner with a notice of a hearing to revoke both their food and tobacco sales permits (which would also jeopardize their liquor license) the owner came into compliance and prohibited smoking in the establishment.
       
      The board’s action played upon the fact that the board is responsible for multiple permits held by any food establishment or other business. While the owner was not deterred by the $4,800 he accumulated in fines, the potential to lose all business revenue if those permits were revoked was effective.
       
      While DPH does not know of any other time when this strategy was used by a board on a non-compliance issue, it has been considered in other situations.
       
   2. Massachusetts also had a court case related to membership associations when the Smoke-Free Workplace Law first went into effect in 2004. (American Lithuanian Naturalization Club, Athol, Mass, Inc. v. Board of Health of Athol, 844 N.E.2d 231 (2006)) The issue, however, dealt primarily with the local board of health’s authority to pass and enforce regulations which were both stricter than the state law and impacted private clubs.
       
      In November 2004, the Athol Board of Health enacted a regulation prohibiting smoking in membership associations. The Massachusetts Smoke-Free Workplace Law, implemented in July 2004, provides an exemption for membership associations that permits smoking under certain conditions including that the public is not permitted in the club when smoking is allowed. When the law first went in to effect, bars complained tended to complain to their local boards of health that that some membership associations were allowing smoking while permitting entry to the general public. Boards began to regulate smoking in private clubs to deal with these concerns.
       
      Three membership associations in Athol filed a civil action in December of 2004 in Worcester Superior Court seeking injunctive relief. The Superior Court ruled that Athol was preempted by the state law from further regulating smoking. The Board of Health appealed to the Massachusetts Supreme Judicial Court which upheld their authority, finding that the Law specifically included language which discussed the towns ability to regulate beyond the law.
       
      The argument presented by Athol Board of Health cited two statutes. The first is MGL Chapter 111, Section 31 that states that ‘boards of health may make reasonable health regulations.’ The second comes from MGL Chapter 270, Section 22(2)(j), the Smoke-Free Workplace Law, which states 'nothing in this section shall permit smoking in an area in which smoking is or may hereafter be prohibited by law including, without limitation: any other law or…health…regulation. Nothing in this section shall pre-empt further limitation of smoking by the Commonwealth…or political subdivision of the Commonwealth.'
       
      The clubs also claimed that the regulation infringed on the members’ right to privacy and association. The court disagreed on both counts. The Court found no evidence that the members would be unable to sustain their relationships if a smoking ban was in place and that the right to privacy extended to the members themselves, not to the location covered by the law.
       
   Massachusetts has also had ongoing issues with private clubs that have yet to be resolved. Most, however, deal with technicalities in the law such as how guests are registered, how employment is defined or what constitutes a tiered membership structure (smoking is not allowed if there is a stratified structure) as opposed to simple non-compliance.
    
5. Oklahoma: Oklahoma’s Smoking in Public Places and Indoor Workplaces Act exempts veterans’ organizations (with 501-C-19 federal tax exemptions), except when they are open to the public, so smoking in an American Legion Post is not illegal most of the time. We have had two related problems:
    
   1. Most Legion Posts (and other veterans’ organizations) in Oklahoma have public events, especially dances, pancake feeds, etc. On those occasions, they must be nonsmoking. A few posts were noncompliant with this requirement for up to several months after the state law changed. Public education and a few smoking complaints gradually solved most of these compliance problems, and compliance is virtually complete---to our knowledge---at this time, seven years later.
   2. A second and more challenging problem has been compliance at other social, fraternal or benevolent lodges, which are not exempted from the Act. Compliance among those has been relatively high, but instances of misunderstanding and noncompliance continue to surface occasionally.
       
   Though our state legislature chose to allow veterans to smoke in their posts (most of the time), these are places of employment (including nonsmokers). Many veterans are nonsmokers, and many of the Oklahoma complaints against American Legion and VFW posts for allowing smoking during public dances and other public activities were from proud veterans anxious to avoid secondhand smoke but desirous of attending these social functions. These arguments are presented regularly by advocates seeking to close these loopholes in our state’s smoking laws.
    
   Oklahoma has no secret strategy for achieving compliance in these settings, just continual education efforts and investigation of the occasional smoking complaints. These problems underscore the desirability of minimizing any exemptions in public smoking policies. The more exemptions, the more complicated the exemptions become, the greater the risk of misunderstandings, the greater the likelihood of noncompliance and enforcement problems.
    
6. New Hampshire: New Hampshire's Indoor Smoking Act is not comprehensive. With that said, a section of the law applies to public Bingo games played in private clubs.
    
   Private clubs may create their own smoking policy, but if they offer bingo, they must have smoke free areas for the players. In New Hampshire, bingo games are strictly regulated by the Gaming Commission and a non-profit charity organization must be a recipient of a portion of the proceeds.
    
   New Hampshire had a struggle with the Veterans of Foreign War (VFW) offering bingo to the public with a "smoke free" area that was not well segregated from the smoking area (the entire facility). Players submitted a Secondhand Smoke Complaint Form, and an investigation resulted. The VFW administrators felt that were exempt from the law as they were not a private club, but a military organization. They went as far as bringing an attorney to an administrative hearing that resulted from their multiple episodes of non-compliance to the law. These Veterans felt strongly that they did not have to comply with the law, as the law did not address military organizations.
    
   This situation never really resolved, as the VFW was expanding into the building adjacent to the original one and the plan was to keep that building smoke free, so they simply had the bingo game in that building. The smokers could leave on breaks and go into the Canteen or outside to smoke.
    
7. Washington: There was a court case against the Washington State Smoking in Public Places Law by the Legion on Kitsap County. I believe they have been in compliance since the decision was reached. Please see the attached court brief.
    
8. West Virginia: If they have an alcohol license, our State ABCA will remove this license because the establishment (bar, fraternal, otherwise) because they are out of compliance with additional state licensure or regulation.

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