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Smoke passing into bar violation

FARGO, N.D. - The debate over what constitutes a tobacco shop and how to make them work with bars and Fargo's smoking ban is still smoldering.

Marc Oelslager, the owner of Billiard's on Broadway, said Thursday that he has a Plan B to create a tobacco shop for his bar patrons.

In the meantime, Dana Coulter, owner of JT Cigarro tobacco shop and the bar of the same name, said he's "1,000 percent in compliance" with the city's smoking ban law and that he expects to pass a city inspection today.

Oelslager was told by city officials Wednesday that his tobacco shop - a cigarette machine in a storage area separated from his bar by a door - was not legal, in large part because it allowed smoke to enter the bar.

Now he's considering putting a tobacco shop on the first floor of his building at 208 Broadway, counting on the separation from his second-floor bar to dissipate smoke problems.

"We just want to stay on the same playing field as JT Cigarro," Oelslager said.

Coulter said he's getting a visit this afternoon from the health department to determine whether there's smoke infiltration through the door of his tobacco shop to the bar.

"We have three attorneys all telling us we're in compliance. And one of them is the city attorney," Coulter said.

Bette Deede, the city's tobacco control coordinator, said it will take time to work through the issues.

"Anytime there is a new law, it takes a while to (flesh out) the practical applications," said Deede, who works for Fargo Cass Public Health, the agency that polices the smoking ban.

She said the Billiards setup was definitely in violation.

She said JT Cigarro will likely have a smoke infiltration issue, too, but she wants an inspection to be sure.

Assistant City Attorney Butch McConn said the exemption for a tobacco shop is part of the law. The issue hinges on whether there's infiltration of smoke from a tobacco shop into a nonsmoking area. If there's smoke, there's a violation.

He said it's up in the air whether Oelslager's next tobacco shop idea will work, because a stairwell leads to the second floor.

"We can't prevent someone from trying, but they do make equipment that can detect whether there are smoke particles in the air," McConn said.

Both McConn and Coulter said that an important facet of the issue is to define what constitutes a tobacco shop.

On Wednesday, the city's Smoke-Free Workplace Ordinance Work Group said tobacco shops couldn't be connected to bars by doors if smoke passes into nonsmoking areas.

Deede said she doesn't anticipate fines for smoking violations in the near term. But there are teeth in the law for chronic violators.

Deede said the first violation merits a fine of up to $100. The second violation in a year merits a fine of up to $200. Further violations in the same year could earn fines of up to $500 each, she said.