Disabled Veteran in Montana gets smacked down for violating a non-law
11.26.2015 by James White NorthWest Liberty News
The article outlining this case has already been written, so my main goal was to produce an interview as a supplement. In that spirit, I am reprinting the press release sent to me earlier in the week; the same press release which prompted me to contact Casey, and subsequently produce the interview contained at the end of the article. If you can find the time, contact Casey to offer encouragement and help with his legal funds; for his battle is our battle. If they can persecute Casey for violating a non-law, they can persecute us.
November 23, 2015
Montana Department of Justice Shuts Down Disabled Veterans Small Business
BILLINGS, MT – Tim Fox’s Department of Justice recently won an unprecedented legal injunction, more easily referred to as a harassment campaign against a Montana disabled veteran’s business, after Judge Ingrid Gustafson ordered a shutdown of the use of all free-to-use machines in the store. The injunction, which takes effect immediately, will cost the veteran thousands of dollars in personal savings. It will also cost the jobs of two employees, one of whom is a disabled veteran as well. Lastly, the shutdown of these stores will cost the state roughly a quarter of a million in tax revenue.
The Department of Justice began its bullying tactics in June of 2015 when the department presumably received a complaint from Big Tobacco on Smokes 4 Less, a locally owned tobacco shop in Billings. The complaint alleged that Smokes 4 Less was a tobacco manufacture and should be forced to get a tobacco manufacture license. However, at this time the Department of Justice has yet to make the complaint available to the owners of Smokes 4 Less. This complaint allowed the Department of Justice to file a civil suit against the local business.
Montana State Representative Daniel Zolnikov said “Montana’s legislature serves to make the laws. The State of Montana’s role is to enact our legislation. If our laws are unclear, it is the duty of the legislative branch to fix these laws upon our next session. The Department of Justice has circumvented this process. Instead of serving to enact laws, it is working to create laws through lawsuits and judicial activism. This is a disgrace to Democracy, Montana’s Legislature and the entire state of Montana.”
Montana’s Code Annotated, 16-11-307, 16-11-102, subsection 2 (i) and 16-11-402, subsection 9, are the sections of Montana’s law that defines what a tobacco manufacturer is, and Smokes 4 Less does not fit this description. Instead of the Department of Justice using its ability to enforce the current law, the Department of Justice took it upon itself to rewrite and enforce its preferred translation of these laws.
MCA 16-11-102. Definitions. (1) As used in this chapter, the following definitions apply, unless the context requires otherwise: (i) “Manufacturer” means any person who fabricates tobacco products from raw materials for the purpose of resale.
Casey Brock, one of the store’s owner, stated “Any customer that comes into the store knows they are able to buy kits from us which they in turn may take home and roll themselves or use a machine located in my shop. The machine is free of use, and does not cost our customers a dime. The question I ask is, if our customers are choosing to use the machine and the product is already bagged by another entity, how can I be a manufacturer? The answer is simple, I cannot be a manufacturer. My involvement ends when the customer pays me and I hand them a receipt. I no longer have control of that product.”
16-11-307. Distribution of tobacco products in other than sealed packages prohibited — minimum package size. (1) A person may not distribute a tobacco product for commercial purposes in other than a sealed package that is provided by the manufacturer and that contains the health warning required by federal law. Single cigarettes may not be sold.
(2) A person may not knowingly manufacture or distribute for commercial purposes cigarettes in a package containing fewer than 20 cigarettes or rolling tobacco in a package containing less than 0.6 ounces net weight of tobacco. For purposes of 16-11-308 and this section, “rolling tobacco” means any tobacco that, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to or purchased by consumers as tobacco for making cigarettes.
According to the definitions in law, Smokes 4 Less does no such thing. The store sells the product to the customer who then has the option to use a machine on site or can take the product home. By saying the store is in violation of this law and by not allowing customers to use the machine, Judge Ingrid Gustafson’s ruling may have unintended consequences and may have made Roll Your Own (RYO) hand machines illegal.
Attorney General Tim Fox’s department even went as far as calling in the FDA to inspect the store, and Smokes 4 Less passed this inspection. However, while in court, Assistant Attorney Andres Haladay neglected to inform the judge of this. He also made the claim Smokes 4 Less was avoiding paying all applicable taxes, a claim made to the Judge which again was not true. All taxes are paid to the State and the Federal Government. Mr. Haladay also alleged in court that this was not an issue that had to do with money, but this was clearly another of the Department of Justice’s false claims, especially since Haladay stated numerous times before that although Montana had no law against these machines, HE would like the store to become compliant on the federal level so as to not affect the Montana Master settlement agreement. In other words, it was not about enforcement, it was about the money.
The Montana master settlement agreement is: In November 1998, Montana joined 45 other states in signing the Master Settlement Agreement (MSA) with the nation’s largest tobacco companies. The settlement resolved a lawsuit brought by the states seeking to enforce their laws and to recoup hundreds of millions of dollars the states spent on Medicaid-funded care for people suffering from tobacco-related illnesses. It contained two critical components: restrictions on tobacco marketing and annual payments to states. The MSA’s goals were to reduce youth smoking, promote public health and provide states with financial relief. Montana is one of the only states that, by resolution of its voters, embraces these goals. Montana uses the majority of its MSA income – $35.5 million in 2009 – for its intended purposes – improved health and tobacco disease prevention.
Since March of 2015, Smokes 4 Less was in contact with the Department of Revenue (DOR) to ensure the store was in full compliance since the DOR oversees all licensing and tobacco enforcement. As far as Smokes 4 Less is concerned, the Montana DOR has had no problems with the operation. This is just another fact that the Department of Justice likes to ignore. The Department of Justice even made the claim in court that the DOR has their own set of rules and the Department of Justice has a different set of rules. If this is true, this makes Smokes 4 Less and many other businesses unable to be compliant with both.
Representative Zolnikov said “A Democracy works when our departments are transparent and work for the people. It appears that our Department of Justice is acting on its own accord, and with a budget that reaches almost $100,000,000, it leaves small businesses in an overwhelming position where it is basically impossible to fight the Department of Justice’s self-serving actions and deep pockets.”
About Smokes 4 Less
B and B Smokes Inc. DBA as Smokes 4 Less is owned by two disabled veterans. It opened in Billings Montana, April of 2015. Smokes 4 less currently employs a disabled veteran and one part-time employee. Smokes 4 Less offers customers the ability to purchase kits which consist of an 8oz bag of tobacco and a carton of 200 paper tubes, as well as numerous other smoking products and accessories. The customer can then take these kits home or use one of the rolling machines on site. If customers use the free machines on site, the machines will roll 200 tubes in roughly 8 minutes, greatly speeding up the process, especially for elderly customers.
Casey Brock, Owner
Smokes 4 Less