The Health Department was counting members of boards of directors as employees when applying the ban to clubs with more than 10 workers.

12:08 PM EST on Tuesday, March 8, 2005

BY SCOTT MAYEROWITZ
Journal State House Bureau

PROVIDENCE -- The Department of Health is backing down from a strict interpretation of the state's smoking ban that would have practically wiped away most exemptions to the new law.

The issue has been: when does a volunteer become an employee?

A few hundred small, nonprofit clubs, such as the Knights of Columbus and the American Legion, are exempt from the ban for the next 18 months as long as they meet certain requirements, including having 10 or fewer employees.

Lawmakers defined employee to include "a person who volunteers his or her services for a nonprofit entity," to prevent a club from circumventing the law by replacing all of its paid bartenders with volunteers.

But the Department of Health took things one step further. It read the law to include any volunteer, even those who have nothing to do with serving liquor, such as trustees.

When told last week by The Providence Journal of the Health Department's interpretation, House Majority Gordon D. Fox said: "I think that's a strict interpretation that was not meant by the bill."

Fox, sponsor of the smoking legislation, said, "it was not meant to include board of directors, because obviously some of these nonprofits may have 30 or 40 . . . directors who may go into the place once or twice a year."

With such a narrow view, the exemption would be "eaten up" said Fox, D-Providence.

"The Health Department understood the negotiations and the fine balance that we created through this legislation, and I would just hope that they would interpret it in accord with that balance," Fox said.

Yesterday, Health Department lobbyist Helen Drew said: "I think there's been a little shift."

Journal file photo

The Bristol County Lodge of Elks has many volunteers who help run its activities. Those volunteers - such as, from left, George Bonny, Ron Cruz, Kevin Brown, Okie Falcoa, Charlie Francis, Dave Camara and John Lazzaro at last Thanksgiving's food drive - put the organization over the Health Department's 10-person no-smoking limit.

Drew said the department will probably change its interpretation to include just volunteers involved in serving liquor.

The statewide smoking ban that took effect last week applies to virtually every public place.

However, 35 class C liquor license holders -- small bars that must close by midnight and are limited in what food they can serve -- are exempt until Oct. 1, 2006, as long as they have 10 or fewer employees.

Also exempt for 18 months are 278 class D license holders who also must have fewer than 10 employees, are "a nonprofit or charitable corporation with a defined membership," and are "not ordinarily a place of public accommodation."

The state's two gambling parlors, Lincoln Park and Newport Grand, and cigar bars are permanently exempt.

THE ST. MARY'S Feast Society is one of the class D license holders told by the Health Department that it couldn't allow smoking.

The group puts on a five-day feast each July honoring the Madonna della Civita. It also has a bar in its Cranston headquarters where members can purchase drinks year-round, according to society president John L. Nardolillo Jr.

The group pays three bartenders and one janitor, and has five volunteers who oversee the day-to-day operations of the bar.

With just those nine "employees," Nardolillo said he thought the group was under the 10-person cap. But officials at the Department of Health ruled differently.

The feast society has a 14-person executive board and a grand centennial committee with 35 volunteers. Nardolillo says he was told that because of these other volunteers -- who have nothing to do with the serving of alcohol -- the society would have to prohibit smoking.

"They've made an exemption that's virtually impossible to comply with," Nardolillo said. "I don't think it's reasonable and I don't understand the meaning behind it."

The Bristol County Lodge of Elks has a similar situation. It hires four bartenders and one house manager, and pays its secretary and treasurer, according to Exalted Ruler Dick Devault.

But the group also has many other volunteers who run clam boils, blood drives, a motorcycle rally for diabetes and a 10K run for charity.

"Depending on your point of view about smoking, you can take the interpretation that meets your need," Devault said.

The Lymansville Memorial Post of the Veterans of Foreign Wars, in North Providence, could also be affected. The group has four volunteer bartenders, four officers and another three people on the host committee that keeps the place clean, according to Rico Marciano, a member of the host committee.

The post prohibited smoking in its main room several years ago, and members now need to go into the hallway for a smoke.

Marciano said the ban will have little impact on his group because fewer people are smoking there anyway.

"During the busiest time of the night, if you find one or two guys smoking, it's a miracle," he said. "Nobody drinks anymore, nobody really smokes anymore. We sell more candy than we do beer."