After sneaking in new rules that outlawed a large segment of the city's smoking patios last year, state health officials are making amends.
In coming months, the Oregon Health Authority plans to open a new rule making process, potentially scrapping regulations that altered what qualifies as an "enclosed area" under Oregon's Indoor Clean Air Act.
As we reported last year, officials quietly expanded the definition of enclosed spaces in 2015, during a months-long process that had been largely advertised as a means of crafting rules for vape pens. Bar and restaurant owners had no interest in that discussion, but were surprised last year to learn it had also contained a surprise tweak. Suddenly, patios were deemed off limits for smoking if they consisted of two walls and a ceiling—a change over old regulations some business owners had spent thousands of dollars to comply with.
State regulators enforced the rule only when complaints surfaced, meaning some bars were forced to curb smoking—frequently losing customers in the bargain—while others operated as normal.
After the Mercury first reported on the growing outrage, the OHA offered a small concession, agreeing to suspend enforcement of the rule until January 2018. Now it's going further.
According to Sonia Montalbano, an attorney for a contingent of Portland bar owners, the state will consider changes to the rule in coming months, giving businesses a new chance to register their displeasure.
"I feel like AIRBOT had a fantastic victory," says Montalbano, referring to the ad hoc Association of Independent Restaurant and Bar Owners for Transparency that she represents. "They're going to give clear notice. They’re going to allow comment. I would say it’s a full retreat."
The OHA hasn't responded to our inquiries about the new process, but Montalbano shared correspondence from state officials that indicates the state plans to take up rule changes this summer. The rule-making process will be required to better account for economic impacts to local bars and restaurants, she believes, and regulators will be forced to take her clients' testimony into account.
Depending on the speed of the rule-making process, Montalbano's also not ruling out legal action. Her clients have until December to challenge the rule change that started this dispute, she notes.
"We're going to look at where we are in November," she says.