Monday, February 05, 2007

According to a Minnesota Senate report, the tribal casinos cannot be exempt from a statewide smoking ban

The full Minnesota Senate report is found here, and states:

Do state ..... laws apply on American Indian reservations?

To the extent that state law is "prohibitory" as opposed to "regulatory," it applies to American Indian reservations under the operation of Public Law No. 280, which provides Minnesota with the authority to enforce criminal and prohibitory law on American Indian reservations,

[I]f the intent of a state law is generally to prohibit certain conduct, it falls within Pub.L. 280's grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and does not authorize its enforcement on an Indian Reservation. The shorthand test is whether the conduct at issue violates the state's public policy.

The smoking ban law is generally to prohibit certain conduct specifically to prohibit smoking. Therefore, for fair and equal treatment under the law, the tribal casinos cannot be exempt from a statewide smoking ban.

If however, DFL leadership does want to exempt the tribal casinos from a statewide smoking ban, then lawmakers need to rewite the smoking ban bill to be a regulatory law instead of prohibitory. A regulatory smoking ban law would allow for air quality testing and monitoring to ensure that secondhand smoke levels are within air quality safety standards.

Regulatory monitoring is the manner in which welding smoke is dealt with in the workplace, and it is the manner in which secondhand smoke should also be controlled. OSHA has a permissible exposure limit (PEL) for all the components of secondhand smoke, which can easily be measured to determine if the hospitality workplace is within compliance.

The fact that lawmwkers have never proposed a ban on welding smoke indicates that OSHA regulatory air quality standards are a safe acceptable method for dealing with air quality issues in the workplace.

A regulatory smoking ban is the only manner of ban that will exempt the tribal casinos. On the other hand, a prohibitory smoking ban which exempts the tribal casinos will surely be challenged and ruled as unequal treatment under the law in court.

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