Posted on 11/06/2002 7:29:23 AM PST by SheLion
HELENA – Fears of paying out big cash settlements to tavern owners if Helena’s clean air ordinance doesn’t stand legal muster have most city commissioners wondering if they could amend the smoking ban.
No formal action was taken Monday evening, but at least three commissioners appear ready to ask Attorney General Mike McGrath for a legal opinion.
“I think if the bars and casinos would have been exempt in the first place...we wouldn’t be in a lawsuit,” said Commissioner Marc Parriman. He joined fellow board members Tom Pouliot and Steve Netschert in lending support for a legal opinion circulated by area tavern owners stating the commission could, in fact, amend the smoking ban.
“I guess I would like to know whether or not we can amend our ordinances,” Pouliot said.
But City Attorney David Nielsen said he wasn’t so sure. He said that while the board cannot void or repeal the law, it can clarify some language. Whether or not bars and casinos could be exempted remains to be seen, Nielsen said.
“Where the line is in between I don’t know,” he said.
The city is defending itself from a lawsuit by tavern owners, who want to see the ordinance overturned. District court Judge Sherlock recently ruled against a request to suspend the smoking ban while the lawsuit works its way through court.
Parriman and Pouliot were not commission members when the original clean air ordinance was passed. Mayor Jim Smith and Commissioner Sandy Oitzinger voted for the ordinance, while Netschert voted against it. Voters subsequently upheld the smoking ban by a 3-to-2 margin in a special referendum this summer. And at least one commissioner said the wishes of those voters should be heeded.
Oitzinger said she thought talk of amending the ordinance was a bit premature.
“I guess I would have to express my resistance to the idea,” she said. “We should really not get out ahead of 61 percent of the voters. I think the court case should be allowed to play out.”
The discussion Monday night brought to light what many commissioners had been wondering about in previous weeks. All said they were hoping the courts would soon settle the tavern owners’ lawsuit. But the fact that the city could be financially liable one day does not sit well with some.
After hearing the city would have to levy a special tax on residents to pay for damages awarded, Netschert said he wondered if the 61 percent who voted to uphold the smoking ban would be willing to foot the city’s legal bill. In addition, state lawmakers might try again to get at Helena’s cut of gambling taxes, he said.
As it stands, the commission will work on a draft memo to McGrath detailing how they might want to change the ordinance. McGrath offered no comment Monday night.
At the close of the debate, Mayor Smith said he needs to see the specifics before he makes up his mind on whether to change the ordinance.
“I’d like to see the question – I’d like to see the question in writing,” he said.
Is this because it was a vote that put it in place? If so, would it take a vote to repeal it?
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