State Supreme Court upholds local regulations on smoking shelters

The Montana Supreme Court has reversed a decision by the district court and upheld the City-County Board of Health’s regulations regarding the Montana Clean Indoor Air Act and smoking shelters.

The Supreme Court issued its opinion in mid-November and remanded part of the case back to the district court for further proceedings regarding the claim of selective enforcement by Totem Beverages, otherwise known as The Do Bar.

The decision essentially affirmed the local health board’s authority to establish regulations related to the law and to enforce those regulations.

The Montana Legislature enacted the Montana Clean Indoor Air Act in 1979. The law prohibited smoking in an “enclosed public place,” which was defined as “an indoor area, room or vehicle that the general public is allowed to enter or that serves as a place of work.”

Place of work is defined in the law as “an enclosed room where one or more individuals work.”

The Montana Department of Health and Human Services adopted rules related to the application of the Montana Clean Indoor Air Act and defined enclosed room for places of work as “an area with a wall on all sides reaching from floor to ceiling, exclusive of windows and doors, and does not include an area completely or partially open to the outside air such as a roofed shelter.”

The Cascade City-County Board of Health adopted regulations on smoking shelters in June 2015 defining permissible smoking shelters as “either ‘unenclosed standalone shelter[s]’ or ‘unenclosed shelter[s]’ that met certain criteria, including a permanent opening that was no less than 20 percent of the entire square footage of the vertical plane forming the shelter’s interior, and did not reduce airflow. Prior to adoption of the regulation, the board sent a letter to bar and tavern operators in Cascade County, stating, ‘[t]he enclosed photos are existing structures here in Great Falls, that the [Board] has found to be in total compliance with the MT MCIAA, and as such there would be no need for any enforcement action by the [board] on these structures.’ Some of the structures in the photos did not comply with the requirements of the subsequently adopted regulation,” according to the Supreme Court document.

The lawsuit stemmed from a January 2016 notice to Totem Beverages, or The Do Bar, citing alleged violations of the local regulation. Tho Do Bar had been inspected multiple times between 2012 and 2014 and was not cited for violations of the Montana Clean Indoor Air Act, according to the court document.

The 2016 notice stated that smoking was happening within an enclosed public space at The Do Bar and that the bar should “immediately cease and desist with all activities which allow, encourage and/or permit active smoking within The Do Bar,” according to the court document.

Totem Beverages and the health board filed for summary judgement. The District Court concluded that the local regulation conflicted with the state law and DPHHS rules and was therefore void, according to the court documents. District Court declined to rule on Totem’s selective enforcement claim since it invalidated the regulation.

The case made its way to the Supreme Court and in the meantime the county didn’t do much enforcement of the local regulations.

“We didn’t feel it was appropriate to follow up on complaints,” under the county’s regulations, Carey Ann Haight, chief of the civil division in the county attorney’s office, told the health board during their Dec. 4 meeting.

The county did follow up on complaints that came through the state’s complaint system though, she said.

Since the court validated the local regulation, Haight said the county could start investigating complaints under the local regulations again.

Haight told the health board that the court’s decision meant that if the county’s health officials are in an establishment and notice something that gives them concern, the health department can proceed with an investigation and they’ll also follow up on anonymous complaints. The county will also go back to reviewing plans for smoking shelters.

Haight said there had been some concern over whether anonymous complaints that resulted in prosecution would count toward stacking offenses in misdemeanor prosecutions. She said it wasn’t clear if that would change under the court’s decision.

Health department officials in the environmental health division, which oversees enforcement of the clean air regulations, said they would review the local regulations since it’s been so long since they enforced under those rules and perhaps find areas for improvement.

The Do Bar can still go to district court on their claim that the local health department is singling out their establishment. Haight said that was up to the bar’s lawyers and she didn’t know Wednesday whether that would happen.

The lawyer for Totem Beverages declined to comment on Thursday.

“It might not be the end,” she said of the Supreme Court’s decision during Wednesday’s health board meeting.