Commissioners pass smoke-free exemptions

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County commissioners Marc Huber, John Jessup and Brad Armstrong and county attorney Scott Benkie discuss language in the smoking ordinance amendment. (Tom Russo | Daily Reporter)

HANCOCK COUNTY — Before the Hancock County Commissioners voted Tuesday to amend the county’s smoke-free ordinance, they were forced to clarify wording that would have done the opposite of their intention to begin with: allowing a Fortville cigar shop to open a smoking lounge.

All confusion and haggling over language aside, the commissioners unanimously passed the first exemptions in the ordinance’s 10-year history. Restrictions on smoking have been lifted for tobacco and electronic cigarette stores. The ordinance also includes tighter restrictions on smoking in public — part of a compromise with public health officials who sought additional restrictions in exchange for the changes.

One physician and the county’s health officer, who addressed the commissioners before the vote, expressed disappointment in the revision, while the CEO of Hancock Health said the ordinance still has teeth. The Fortville cigar shop owner who first approached the board a few months ago about opening a smoking lounge in his shop said he was “cautiously optimistic” about expanding his business’s footprint.

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The county has restricted smoking inside all retail stores and most county establishments since the robust smoking ban took effect in 2009. The ordinance doesn’t prohibit smoking in private residences, motor vehicles and hotel/motel rooms.

An amendment in 2009 also says the smoking ban does not apply to  “outdoor dining areas of restaurants that have no direct exit from the premises and where the nearest seating is at least 10 feet from the entrance to the smoke free area,” rather than the 25-foot buffer from all other workplaces and businesses.

Steve Long, CEO of Hancock Health, worked with county attorney Scott Benkie on the ordinance’s language as a liaison between the commissioners and the county’s health community. Long said he believes additional protections they put in the amended ordinance for a smoking ban in public parks and new wording on vaping keeps the ordinance strong despite it allowing smoking in tobacco shops.

“We believe that it’s important for us to have an ordinance that is enforced and that we want to make sure this narrow expansion is not expanded on,” Long told the commissioners, “and I believe you guys are in support of that as well.”

In order for a tobacco store to fall under the guidelines of the ordinance, 90% of its gross revenues has to come from selling tobacco products and smoking instruments, and it cannot sell or allow food and beverages. Vape stores have similar guidance, but those businesses don’t have to meet the 90% quota. Stores are also required to be “a stand-alone business with no other businesses or residential property attached to the premises,” and it must have a seating limit of eight people.

The sentence referencing “stand-alone” businesses needed clarification, Commissioner Brad Armstrong said.

The fact that the Fortville cigar shop, Maduro on Main, has second-floor tenants and shares an interior doorway with a business next door seemed problematic, Armstrong said. Long said he interpreted the language as stating the cigar shop could not have a smoking lounge because it is not a “stand-alone” business.

Benkie had included that language in anticipation of others seeking loopholes in the rules but recommended the commissioners add the word “freestanding” to clarify to intent.

That means any new tobacco store must be built separately from all other businesses and residences in the future to allow for smoking inside. Because Maduro on Main wouldn’t be allowed a smoking lounge under the language in the ordinance, the commissioners suggested “grandfathering” in the shop and all other current tobacco and vape stores that connect to other businesses, such as in downtown areas and at retail strip malls.

Armstrong proposed changing the ordinance to exempt any tobacco and vape shop from the smoking ban that wasn’t a “stand-alone freestanding business” before Oct. 1.

After the meeting, Armstrong told the Daily Reporter that he favored grandfathering in existing tobacco businesses since the idea for the amended ordinance was driven by constituents who wanted a cigar lounge at Maduro on Main, calling it a way to further the revitalization of downtown Fortville.

Long told the Daily Reporter the amended ordinance was the best outcome from what the commissioners had to balance between the needs of the health community and businesses. He said it’s still a strict ordinance, especially with the expansion of the ban for public outdoor spaces.

“Am I thrilled about it? Of course not,” Long said. “I would love to see us have very strict requirements around all of this, but I think given the divergent requirements that they were trying to balance, I think it was reasonable.”

Dr. Robert Klinestiver, director of pulmonary medicine at Hancock Regional Hospital, said during the commissioner meeting that he worries about the residents who live above Maduro on Main. He said cigar smoke is quite putrid and stronger than other types of tobacco smoke.

“What would we do if one of the individuals starts complaining that they can smell the cigar smoke?” Klinestiver said. “There’s no remedy for that.”

Klinestiver said the ban was originally created to protect people from secondhand smoke, and he hopes the county doesn’t consider more exemptions in the future.

Dr. Sandra Aspy, health officer for the Hancock County Health Department, called the ordinance a “mishmash of confusing language.” She’s a strong supporter of the former smoking ban. She said it will be difficult to enforce tobacco and vape shops when they don’t have to register with the county or be inspected by the health department, the agency in charge of enforcing the ordinance.

“I request that when you pass this that you remove the board of health as the enforcing agency,” Aspy told the commissioners.

Aspy said she would have to request the change before the Hancock County Board of Health.

Larry Harnish, owner of Maduro on Main, said he’s still “digesting” the approval of the amended ordinance, adding he was surprised the commissioners voted in favor of the changes. Harnish said he’s proud of Hancock County keeping a strict ordinance, while providing stipulations for businesses like his. He said the smoking lounge impacts a small area and a small number of people.

Harnish is considering building a room on the back of his store with a separate ventilation system that would exchange the air inside every six to 10 minutes. As the air in the room gets pushed outside, it would go through filters that Harnish said he’d replace regularly.

While Harnish is still hoping to add on the smoking room, he said he’s “cautiously optimistic” about his next steps. Town councils in Fortville, Cumberland, McCordsville and New Palestine recently passed resolutions backing the original Hancock County smoke-free ordinance. The resolutions don’t carry any legal weight, but cities and towns can pass smoking bans more restrictive than the county’s if they wish. Cumberland and Greenfield both have smoke-free ordinances, but the county’s is stricter.

Harnish said he plans to wait until input from the Fortville Town Council before proceeding on construction.

Clarification: A previous version of this article mischaracterized a past amendment to the smoking ordinance from 2009. According to that amendment, people can smoke 10 feet away from outdoor dining areas.

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The new additions to Hancock County’s amended smoke-free ordinance are in bold below. The commissioners added the phrases when they approved the revised smoking ban on Tuesday

(C) The prohibitions of this Section do not apply to:

(4) Electronic smoking device retail store:

a. That is primarily engaged in the sale of tobacco products for profit, intended for off-premises consumption or use;

b. Prohibits persons under 18 years or age [or 21, depending on applicable law] from entering the premises;

c. Does not sell, offer or allow on-premises consumption of any food or beverages, including alcoholic beverages;

d. Is a stand-alone freestanding business with no other businesses or residential property attached to the premises, with the exception of businesses in section (a) operating as of Oct. 1, 2019.

e. Has a maximum seating capacity of eight persons; and

f. A requirement that such establishments have a valid business permit as that type of establishment.

(5) Retail tobacco store:

a. That is primarily engaged in the sale of tobacco products and smoking instruments intended for off-premises consumption or use, with at least 90% of the gross revenues of the business resulting from such sales;

b. Prohibits persons under 18 years of age [or 21, depending on applicable law] from entering the premises;

c. Does not sell, offer or allow on-premises consumption of any food or beverages, including alcoholic beverages;

d. is a stand-alone freestanding business with no other businesses or residential property attached to the premises, with the exception of businesses in section (a) operating as of Oct. 1, 2019.

e. Has a maximum seating capacity of eight persons; and

f. The customer is prohibited from bringing tobacco products into the store for consumption purposes.”

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