State Officials Are Walking Back Their Sneak Attack on Smoking Patios

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New state rules that outlawed many of Portland's smoking patios overnight have been extinguished. At least for now.

Facing outcry and threats of legal action from bar owners, the Oregon Health Authority tells the Mercury it's suspending new rules many say was a sneak attack. The OHA will push back enforcement of the laws until January 2018. In the mean time, the authority plans to "implement a communication plan to conduct education of restaurant and bar owners on the rules."

As we reported in October, last year the state altered the definitions of what constitutes an acceptable outdoor smoking area under state law—effective January 2016.

The problem: The OHA didn't bother to broadcast that it was even considering such a move. The rule change was shoehorned into discussions about new regulations for e-cigarettes, and the public announcements about the meetings were vague about other items up for discussion.

So when bar owners began learning last April that their patios had been off limits—and that they faced potential fines of $500 any time someone was caught smoking there—they lost it. Bars all over the city told the Mercury business had slackened since Multnomah County Health Department ordered them to disallow smoking. And since the rule wasn't enforced uniformly, smoking customers could easily find another bar that hadn't yet been caught.

In response, local bars formed a group they're calling Association of Independent Restaurant and Bar Owners for Transparency, or AIRBOT. They argue that the state violated its own rules by not giving proper notice of the rule change. And they've now got some company.

The Oregon Restaurant and Lodging Association (ORLA), a trade organization that lobbies for the Oregon hospitality industry, has sent notice to at least one local bar saying it "is actively challenging the legality of this rule change" and that public notice requirements "were not followed in accordance with state law." ORLA has also told members to "disregard the threat of fines by government officials regarding your outdoor smoking area..."

Oddly, even after the OHA decided to hold off on the new rules, such threats were a possibility. Though the OHA confirmed to the Mercury on December 14 that it was delaying implementation of the rule, it didn't bother to communicate as much to the Multnomah County Health Department—a chief enforcer of the rule—until December 16, according to Erik Vidstrand, a county tobacco program specialist.

The OHA's decision doesn't mean the conflict is over. Health Authority spokesperson Jonathan Modie tells the Mercury there are no plans to re-open the rule change for public discussion. That's not going to fly with ORLA or AIRBOT.

"While the OHA indicates it will help bars 'comply' with the new rule, we still plan on pushing for a new rulemaking process," says Sonia Montalbano, an attorney representing AIRBOT.