PIERRE-Video lottery terminals can be placed inside the vented smoke shacks that some bar owners have built onto their establishments, according to several Daugaard administration officials.
An administrative policy now being followed by the South Dakota Lottery allows smoking at a video lottery establishment if it occurs in a non-enclosed area.
South Dakota voters ratified a state law in 2010 that banned smoking in public places, including bars, restaurants and gambling establishments.
But the lottery's policy rests in the law's definition of a public place.
It says a public place is "any space between a floor and a ceiling that is enclosed, exclusive of doorways, on all sides by permanent or temporary walls or windows."
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The smoke shacks attached to bars and casinos aren't considered by lottery officials as public places under the law if they have at least a strip of open space for air to circulate.
Business people can put video lottery terminals in the smoke shacks at their own risk, according to Norm Lingle, executive director for the South Dakota Lottery.
Lingle and his supervisor, state Revenue Secretary Andy Gerlach, talked about their administrative policy during a recent meeting with the South Dakota Lottery Commission.
Gerlach said decisions about how to treat smoke shacks now rest with local governments that issue the alcohol licenses.
Video lottery terminals are allowed only in licensed establishments that can sell alcohol for on-site consumption.
State Attorney General Marty Jackley said lottery officials didn't seek a legal opinion from his office about the smoke-shack policy and he hasn't issued one.
Gerlach said a business could move the terminals into smoke shacks and later remove them, so long as the data connection remained with the lottery's central computer.
Whether a business could place a video lottery terminal on a patio without any walls around it isn't clear, according to Gerlach.
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He said the terminal must be in a place where alcohol is routinely served.
There have been questions raised in a variety of communities across South Dakota, including Watertown, Mitchell, Rapid City and Sioux Falls.
The Legislature, in passing the 2009 law, specifically repealed the previous exemption that allowed smoking in video lottery establishments.
The 2009 ban also continues to provide a limited exemption for cigar bars. There were two operating at the time.
The law grandfathered those existing cigar bars from the smoking ban, but didn't allow for additional ones to be opened.
Tobacco retail shops also are protected from the smoking ban, but they are prohibited from holding alcohol licenses for on-site consumption.
Voters approved the smoking ban 204,160 to 113,011 at the 2010 general election.
Video lottery play dropped sharply after the smoking ban took effect and still hasn't regained its pre-2010 level.
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Lingle told lottery commission members there aren't state laws or rules for placement of video lottery terminals, other than within the boundaries of the alcohol license.
If an owner wants to risk the terminal by exposing it to the outdoor elements, Lingle said, "That is their decision."
Jennifer Stalley, of Pierre, was at the center of the lobbying effort seven years ago for the smoking ban. She said the definition of an enclosed structure could be tightened in state law to further enforce the ban.
"I don't think it would take a lot to correct that in the Legislature," Stalley said.
The health risk might be the deciding factor, she suggested.
"I think it is pretty clear employees should not be subjected to smoke," Stalley said. "At the end of the day, the trial lawyers may take care of this."
Tony Venhuizen, the governor's chief of staff, deferred questions about the smoke-shack policy to Revenue Department lawyers.
The lottery's new policy wasn't mentioned in an April 30 memo sent to all video business businesses, local government officials and law enforcement.
