Oregon health authorities are forcing many of the state’s bars to close their outdoor smoking patios, creating inconvenience for customers and financial hardship for business owners.
Oregon has long prohibited smoking in bars and restaurants, with the state’s Indoor Clean Air Act (ICAA) banning the practice in “enclosed spaces.” However, the ICAA does not define what exactly an “enclosed space” is, leaving it to the Oregon Health Authority (OHA) to make that determination.
Since 2009 the OHA has operated under the definition that anything with three or more walls and a roof was an “enclosed space” where smoking was prohibited. This forced smokers outside, but gave businesses enough freedom to create comfortable and secluded patios where patrons could enjoy a smoke in peace.
But now that peace is being disturbed, thanks to a tweak the OHA made in how it considers “enclosed.”
Last year, the OHA drastically expanded what an “enclosed space” was to include anything with more than two walls, roof or no. Given how the OHA defines walls, this change meant that if a bar has an open-air patio with no roof and a waist-high fence on three sides, it could not allow smoking.
While the rule went into effect back in January of this year, many business owners are just now learning of it. This is in large part the doing of OHA itself, which has gone out of its way to avoid attracting attention to its changes to the ICAA.
For instance, when the agency sent out notifications of public hearings on the proposed rule change they declined to mention anything about smoking patios or “enclosed spaces,” instead saying only that definitions to the ICAA were to be updated at meetings largely about new vaping laws. When the expanded definition of enclosed spaces was approved following those hearings, OHA failed to notify businesses.
As a result, bar owners have been taken completely by surprise as notifications from OHA have started to appear, telling them to shut down their outdoor smoking areas or risk massive fines.
One owner told The Portland Mercury that his business had declined 20 percent since the OHA told him he had to shut down his smoking patio. Another owner reports losing out on hundreds of dollars a night since the change, and frets that he’ll be out of business in six months if the revenue drop-off continues.