Helena Update
Bar owners worry about impact of smoking ban
Sep 30, 2005
By Nate Traylor
HELENA — The statewide smoking ban passed by Gov. Brian Schweitzer earlier this year, takes effect Oct. 1 for all buildings open to the public except bars. Bar owners have four years to prepare themselves for the smoking ban — a ban that many local bar owners predict will hurt profits.
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Helena’s smoking ban constitutional
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April 12 2005
HELENA – A district judge has ruled that Helena’s ban on smoking in all buildings open to the public is constitutional, raising the question of whether the city is bound to enforce its law until the statewide smoking ban takes effect on Oct. 1.
District Judge Thomas Honzel overturned a City Court decision from 2002 that the local ordinance is unlawful because it doesn’t provide for a jury trial for those ticketed for allowing smoking at their businesses.
Honzel’s decision comes days after the Legislature gave final approval to a ball that bans smoking in all buildings open to the public starting Oct. 1. The bill is a compromise that gives bars another four years to comply with the ban.
However, Helena’s smoking ban, enacted by voters in 2002, applies to bars and casinos, leaving city officials to determine if they’ll enforce the ban for a few months before the state-mandated grace period takes effect.
“It does put us in somewhat of an awkward position,” said City Manager Tim Burton. “We just need to see what options exist and try to be reasonable in light of the fact that the city commission went along with the compromise that was reached in the Legislature.”
City Attorney David Nielsen believes the city has no choice but to ticket violators.
“I’ve never believed the executive branch should turn a blind eye to the law,” he said. “The commission passed this, the voters affirmed it and it’s on the books. If we get a complaint we’ll have to deal with it.”
Helena’s ordinance has been shelved since 2002, when City Court Judge Myron Pitch threw out tickets written against the Montana Nugget Casino and manager Greg Straw because the city law didn’t provide for a jury trial.
In his decision, Honzel said that the right to a jury trial isn’t absolute.
“Montana law contains many examples of legal proceedings where a party is not entitled to a jury trial,” he wrote, citing cases involving parental rights, actions under the Montana Human Rights Act and others.
Helena attorney Thomas Budewitz, who represented the Nugget and Straw in the case, couldn’t be reached for comment.
http://www.billingsgazette.com/index.php?tl=1&display;=rednews/2005/04/12/build/state/85-smoking-ban.inc
Lawyers ask judge to rule Helena’s smoking ban unconstitutional
March 10, 2005
Associated Press
HELENA — A dispute over this city’s tough smoking ban is back before a district judge after a lengthy delay brought on by a separate lawsuit before the state Supreme Court.
An attorney for a casino asked Judge Thomas Honzel on Wednesday to rule the city’s smoking ban unenforceable because those cited for violating it cannot seek a jury trial.
Tom Budwitz, who represents the Montana Nugget Casino and its manager, Greg Shaw, argued that his clients had a right to a jury of their peers.
But Helena City Attorney David Nielson countered that nothing explicitly allows for a jury trial on such an infraction.
The dispute centers on the smoking ban that voters approved in 2002. It prohibits smoking in all public buildings, including bars and casinos.
At issue is whether people accused of a municipal infraction, such as violating the smoking ban, are entitled to a jury trial. In December 2002, City Judge Myron Pitch ruled the ban was unenforceable because it did not allow for a jury trial.
The city appealed, but the case was put on hold while another feud over the ordinance was heard before the state Supreme Court.
That case was brought by supporters of the ban. They sued after state lawmakers, responding to the city’s ordinance, passed a bill that would exempt all businesses with gambling machines from any local laws stricter than the state’s indoor-air laws.
The court, in a 5-2 decision in December, said the bill was unenforceable, clearing the way for the city’s appeal on the jury question to move forward.
The casino and Straw each were ticketed several times in the fall of 2002 for allowing smoking in the casino and failing to post no-smoking signs.
http://www.billingsgazette.com/index.php?id=1&display;=rednews/2005/03/10/build/state/53-helena-nosmoking.inc
