County health board, The Do Bar settle smoke shack lawsuit

Updated 2 p.m. Jan. 12

The city-county health board voted unanimously to accept a settlement with Totem Beverages, also known as the Do Bar, during their Jan. 5 meeting.

The settlement ends a lawsuit stemming from a January 2016 notice to Totem, citing alleged violations of the smoking shelter local regulations. 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 court documents.

The settlement requires the Cascade County City-County Health Department to pay Totem $5,000 and withdrawal their Jan. 21, 2016 abatement notice.

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As part of the settlement, Totem agrees to prohibit smoking in the covered patio area of The Do Bar and to place signage in the covered patio area indicating smoking is prohibited in that area.

The health board’s outside counsel, Jordan Crosby, told the board in November that she saw no concern with withdrawing the abatement order since The Do Bar hasn’t been allowing smoking in that area and it’s a good business decision to settle since though the county has good defenses for the bar’s claim of selective enforcement, it would cost the county more to continue litigating the case.

In December 2019, the Montana Supreme Court reversed a decision by the district court and upheld the CCHD Board of Health’s regulations regarding the Montana Clean Indoor Air Act and smoking shelters.

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The Supreme Court issued its opinion in mid-November 2019 and remanded part of the case back to the district court for further proceedings regarding the claim of selective enforcement by Totem Beverages.

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The Montana Legislature originally enacted the Montana Clean Indoor Air Act in 1979. The law has been amended several times, including in 2005 when it made smoking inside workplaces illegal and have bars and casinos until 2009 to comply. 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.”

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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 2019 Supreme 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 court documents.

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, 2019 meeting.

The county did follow up on complaints that came through the state’s complaint system though, she said in 2019.

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 in 2019 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.

“CCHD has not received any complaints specifically about smoke shacks in at least two years. Any other complaints relating to the Clean Indoor Air Act have been investigated. Questions regarding enforcement actions, if any, are referred to the County Attorney’s Office,” Ben Spencer of CCHD told The Electric.