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Wednesday, November 24, 2010

Yankton Businesses Want Heat on Smoking Ban Cheaters

Someone's being naughty in Yankton: several local business owners attended Monday's city commission meeting to urge the city to snuff out cheating on the smoking ban. The business owners allege that somebody in town is letting patrons smoke, in defiance of the clear will of the Legislature and the good voters of South Dakota. The complainants were too polite to name any cheaters, but the Press & Dakotan's Nathan Johnson reports complaints of smoking on the premises at Yankton's Tobacco Road.

The business owners think the $25 fine imposed by the new state smoking ban isn't harsh enough to deter some hardcore devotees of tobacco freedom. They want the city of Yankton to pass an ordinance that would impose additional fines or revoke the offending business's liquor license.

The city declined, saying it already has rules that allow it to deny liquor licenses to folks who engage in naughty behavior, including violation of state law. That makes sense to me: I'm all about not passing additional rules when existing rules can do the job.

I am a little disappointed, though, with Yankton City Attorney Dave Hosmer's lack of enthusiasm for enforcing state law:

City Attorney Dave Hosmer told the commission he has provided some advice to police in regard to enforcing the statute, alluding to the confusion that may exist as to whether such an establishment can allow smoking.

“If they are caught smoking in an establishment, and the officer can establish that the person was actually smoking, they will get a ticket,” he said. “If the person says, ‘I’m standing in an establishment which is exempt because it is a tobacco place or a cigar bar,’ I’ve instructed law enforcement that they should prepare a report and give it to the state’s attorney, who will then decide whether or not to issue a ticket.

“I don’t think that we should take the fault for a poorly drafted statute,” Hosmer added. “I think the State of South Dakota needs some better interpretation” [Nathan Johnson, "Smoking Ban Rules Questioned," Yankton Press & Dakotan, 2010.11.23].

"Poorly drafted"? Actually, SDCL 34-46-13 through 34-46-19 look pretty darn clear to this layperson. No smoking inside public places. Clear definition of exemption for cigar shops and tobacco shops. Attorney Hosmer is welcome to not like the statute, but he's hard-pressed to demonstrate any poor drafting in the text. Instead of pretending the ban is complicated and defanging the local enforcement by providing lawbreaking bar owners with a pre-fab excuse, Attorney Hosmer and the city should provide the Yankton police with a list (surely a brief one) of establishments that meet criteria of the smoking ban exemptions and authorize them to do their duty on the spot.


  1. Corey,

    The business is question is Tobacco Road here in Yankton. I liquor store/video lottery establishment, cigar shop/cigarette shop (all your fave vices in one). If I understand the law there were like 3 or 4 business...existing "cigar bars" that were granted an ok by the law to continue to allow smoking of CIGARS in their establishments.

    Tobacco road was not on that list.


  2. I beleive the alleged vagnuess is comes down to what a bartender/owners responsibility is under the law.

    SDCL 34-46-15 states: "Any person that owns, manages, operates, or otherwise controls a public place or place of employment shall inform persons violating § 34-46-14 of the provisions thereof. A violation of this section is a petty offense."

    The question then raised is whether a owner must do anything else, such as expelling someone from its premise after the warning is given or calling the police. A strict reading of the law would indicate that a bar owner/bartender could likely let the person stay, as his/her duty under the law was met by informing the smoker of the violation. This essentially allows for the smoker to "assume the risk" of getting a $25 fine.

    I do not express any opinion as to whether this is good or bad. It is just the plain languauge of the statute.

    (On a side note, I know you will delete this, but I simply would like to hear your thoughts on this, if you have an opinion)

  3. Ah, a reasonable question. I'll except this Anon and reply. I'd say the law still seems clear: the owner's obligation is to inform, not eject. Beyond this statute, I would suggest that a business owner has a civic obligation not to countenance illegal activity within his/her establishment. We can't prosecute business owners as accessories to misdemeanors. However, if a business owner does countenance such lawbreaking, a city is well within its rights to deny a liquor license or other necessary operating permission.

    Possibly related: SDCL 22-11-10 makes it illegal to accept any pecuniary benefit for refraining to report a crime, even a misdemeanor. Hmm: come buy drinks and smoke at my bar, I won't report you... pecuniary benefit?

    So I'm still wondering: what's the specific vagueness in the smoking ban Hosmer had in mind?

  4. As the previous anonymous poster, I will give a short reply. If it is deleted, so be it.

    I do not believe that SDCL 22-11-10 applies, unless there is direct "offer" and "acceptance." For example, if Jeff walks into the bar, and tell the bar owner, "If you don't call the cops, I will give you $20 dollars to let me smoke in here" and the bar tender "accepts," that would be a violation. It is fairly attenuated to extend 22-11-10 past that point. Simple contract law would agree with that as well, in relation to "offer and acceptance."

    Assuming I am correct, I am not sure what authority a commission has to revoke a license for other people breaking the law on your premise. The standard for such for such is found in SDCL 35-2-1.2, focusing on whether “the applicant is a suitable person to hold the license and whether the governing board considers the proposed location suitable.” If the applicant or his/her employees have not broken any law, how could a licensed properly be removed?

    I think you are right in the sense this law is not facially vague. In that sense, if the "smoke shop" tells folks that they are breaking the law, and people continue to do it, I do not think anything illegal, or improper, has happened. That said, if cities want to prevent this, there could be a valid reason to pass more onerous city ordinances.

  5. So, Tobacco Road doesn't qualify for the exemption b/c they allow drinking on the premises as well? Am I reading that correctly?

  6. Yes, Angie. SDCL 34-46-19 sets these three conditions for a tobacco shop exemption:
    (1) Generates sixty-five percent of its annual gross income from the sale of tobacco, tobacco products, and accessories for such products;
    (2) Is enclosed by solid walls or windows, a ceiling, and a solid door that provides egress to the outdoors; and
    (3) Does not allow the consumption of alcoholic beverages on the premises.

    You read condition #3 correctly.


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