Fargo's smoking ban has been found wanting by North Dakota's attorney general. The city is obligated under state law to fix it.
It's that simple, and yet it's not. The city's dilemma is twofold.
First, state law passed by the 2005 Legislature is clear: If a city ordinance is not as restrictive as state law, the city must adjust. That looks to be the situation in Fargo regarding the state law's definition of a bar.
Second, the confusion in Fargo stems directly from the city's Byzantine liquor licensing system, which seems designed more to accommodate all sorts of licensing permutations than to promulgate unambiguous regulations. For example, Attorney General Wayne Stenehjem said Fargo's ordinance allows smoking in bars without regard to the amount of food served. Under the state law, smoking in a bar is permitted only if annual gross food sales are less than alcohol sales.
The quandary some bar/restaurant owners find themselves in is defining a bar. The opinion was requested by a Fargo legislator acting on behalf of a local restaurant owner who believed some establishments weren't complying with the rules. But Stenehjem's opinion indicates the problem is not necessarily compliance, but the rules themselves.
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There should be no surprise in that. Fargo has been trying to rejigger its liquor control laws for years without significant success. Smoking restrictions complicate the process. But because the booze/food ratio in bars/restaurants seems to be flexible - depending on who's measuring - the city finds itself in violation of state law.
The city argues the new state law was put in place without sufficient regard to Fargo's liquor licensing classifications. Maybe so. But since smoking bans (whether state or local) have widespread public support, the city's task is to harmonize its purposefully complicated liquor licensing regulations with the clear requirements of the state smoking ban law.
