Fargo's citywide smoking ban is less stringent than state law when it comes to bars and must be adjusted accordingly, the state attorney general ruled Friday.
In his ruling, Attorney General Wayne Stenehjem said Fargo's ordinance allows smoking in bars without regard to the amount of food served.
This conflicts with his opinion that a bar should only be exempt from the nonsmoking requirement as long as its annual gross food sales are less than alcohol sales.
To permit smoking regardless of how much food is sold is inconsistent with the broad goal of a new state law to prohibit smoking in public places, including restaurants, Stenehjem said.
State law allows local governments to adopt antismoking regulations that are stricter than what the state requires, but more lenient rules are not allowed, he said.
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To comply with Stenehjem's ruling, more than 50 percent of sales in bars and businesses with enclosed bars must be from alcohol to allow smoking. His ruling applies only to sales within the enclosed bar area, not the entire business.
Bars with more food than alcohol sales can either eliminate smoking or reduce menu availability, Stenehjem said.
Stenehjem issued the opinion to Sen. Richard Brown,R-Fargo, who asked for clarification of the new state law that has restricted smoking in public places since Aug. 1.
Brown said Friday he asked for the opinion on behalf of a constituent who owns a restaurant with a bar. He declined to name the owner and the restaurant.
"They wanted clarification as to what a bar is," Brown said. "Basically, there's a difference in the state law than there is in the city law and what does that mean?"
State law "really didn't define" what a bar is, he said, and his constituent felt some of his competitors weren't complying with the rules.
Attorney Mike Andrews of Vogel Law Firm in Bismarck represents the local restaurant owner who asked for the opinion. He said his client declined to comment Friday.
"They were matters of statewide significance, and there were unresolved questions with the statute," Andrews said. "Those questions would have needed to be answered in any event."
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Brown said he didn't know how much of an impact the opinion will have for Fargo.
"This is going to take some time to shake out," he said.
Fargo city attorney Garylle Stewart said he couldn't offer much for comment on Stenehjem's opinion until discussing the matter more with other city officials on Monday.
However, he said state law was passed without considering how city liquor licensing works. "Trying to reconcile state law and city ordinance ... it's a mess," he said.
For example, most restaurants with bars in Fargo have FA liquor licenses requiring them to have at least 50 percent of their total sales come from food.
Yet Stenehjem's opinion says more than 50 percent of sales within the restaurant's enclosed bar must be from alcohol to allow smoking.
The city also does not regulate food sales in standalone bars, most of which have Class A or AB liquor licenses.
The various types of licenses will make it "awful hard to fit" with state law, Stewart said.
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"It's trying to fit a size 9 foot into a size 6 shoe," he said.
Fargo's smoking ordinance took effect in November 2004, a month after voters approved it in a special city election. The Legislature endorsed a statewide law last spring.
The Associated Press contributed to this report. Readers can reach Forum reporter Teri Finneman at (701) 241-5560
