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Fargo business may face charges over 'loophole' in smoking ban

FARGO - A cigar lounge here that is attempting to skirt the statewide smoking ban may soon be facing legal action.

The director of Fargo Cass Public Health said she plans to file a complaint with Cass County prosecutors against the owner of JT Cigarro, who has been allowing people to continue smoking in a "members only" room through what he has called a "loophole" in the law.

Ruth Bachmeier said she has attempted for weeks to reach out to bar owner Dana Coulter to get him in compliance with the law, but she is hitting a wall.

"I don't anticipate that by our education we're going to change the mindset," Bachmeier said. "He believes that he's found a loophole, and no amount of education is going to change how he is interpreting the law."

Just before the ban went into effect Dec. 6, Coulter told The Forum he would allow customers to smoke in a room inside his bar under an exemption to the ban that allows smoking in areas "not commonly accessible to the public and which is part of an owner operated business having no employee other than the owner operator."

Coulter believes a club called Level he owns and operates by himself in the same building as JT Cigarro falls under this exemption. One must pay a fee to join the club, Coulter said, and members are provided an electronic key card to gain access. Those without keys or who have not paid membership dues are not allowed into the area.

Bachmeier said she has been documenting what has occurred at JT Cigarro, including multiple attempts to speak to Coulter and her own observations of customers smoking indoors. She plans to present the information to the state's attorney's office within a week.

Because the ban is state law, the state's attorney's office is responsible with pressing charges after receiving such a complaint, said Assistant City Attorney Jason Loos, who has been providing legal advice to public health officials.

"In this case, it's an interpretation of the law," Loos said. "Dana's not denying what he's doing. It's not like anyone needs to catch him at it. It's just a matter of determining what the judge thinks."

Coulter said Wednesday that he has not spoken to anyone at Fargo Cass Public Health since the ban went into effect.

"I've had no complaints," he said. "In fact, to me, it's just business as usual."

Coulter would not say if he was expecting legal action, but said he has sought legal counsel. He deferred all further questions to his attorney, Joel Fremstad. A message left for Fremstad at his Fargo office on Wednesday was not immediately returned.

What the bar owner has already said to the media could make up part of the complaint, Loos said. Even though the smoking room is restricted to members, Loos believes Coulter is still not in compliance.

"Granted, the steps he's made give him a better argument, I don't think it gives him necessarily all that good of an argument," Loos said.

On a first offense, the law provides for a $100 fine to be dealt to business owners found to be not in compliance. With a second offense, that amount jumps to $200. Each additional violation carries a $500 fine.

The law also details that each day that the ban is not followed counts as a separate and distinct violation. Business owners can also have licenses suspended or revoked for not complying.