CCHD finds no violation in investigation of complaint against downtown cigar lounge

The Cascade County City-County Health Department investigated a complaint against the Omerta Cigar Lounge downtown over the Montana Clean Indoor Air Act.

Wade Stout, CCHD’s tobacco prevention specialist, told the Board of Health during their Oct. 5 meeting that he met with one of the owners and didn’t find any violations based on the complaint.

In July, a group of people signed a letter and submitted it to CCHD alleging that Pizazz held a public event in May that invited people to the cigar lounge, making it a public facility subject to the Montana Clean Indoor Air Act.

Omerta is located downtown above Pizazz.

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The letter is signed by Jane Weber, former county commissioner, the Cascade County Substance Abuse Prevention Alliance, Alliance for Youth, and representatives from heart, lung and cancer societies.

Neal DuBois, an Omerta owner and local lawyer, told The Electric in September that he had not been notified of the complaint and that it was not based on facts.

He said that the chef at Pizazz, who is a founding member at Omerta, made a social media post for an event she was hosting. Since the chef is a lounge member, she can being guests to Omerta, DuBois said in September.

“This was not an Omerta event. Omerta did not advertise it. Omerta did not profit from this event, nor did it partner in any way with Pizazz in this event,” he said.

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DuBois said in September that he told the chef when she indicated she wanted to bring a few people up from the Pizazz event that she could, “as long as they know it’s a private lounge and they are guests of a member. None of the people who signed the complaint were at the Pizazz event as far as I understand, nor have any of them been up to the lounge. This is obvious by the statement ‘cigars don’t sell themselves.’ In fact, we have a self-serve point of sale system and the members purchase cigars on the honor system. We have no employees.”

Stout said he met with DuBois in September, as well as the owner of Pizazz, and discussed the complaint. Stout told the board that DuBois explained the Pizazz event and that it was not an Omerta event, the same information DuBois provided to The Electric in September.

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Stout told the board that he expressed concern to DuBois that private cigar bars weaken the clean indoor air act and DuBois said they were operating within the law.

Stout said he asked to tour the lounge, but was denied since DuBois told him it wasn’t pertinent to the complaint being investigated.

Stout told the health board that DuBois had expressed displeasure with the way the complaint was handled and would have preferred if those with concerns had come to him first versus the health board.

In response, Carey Ann Haight, a deputy county attorney, said “that’s just the was the cookie crumbles, we got a complaint and we’re following up on it.”

School Superintendent Tom Moore, a health board member, asked what CCHD’s response would be to the complainants and Omerta.

Stout said they didn’t find any violations in their investigation.

Moore said that is a finding and any complaint to a public agency warrants a response.

Abigail Hill, public health officer, said that they’d check the laws and regulations but assumed they would issue some form of response.

Stout and Haight said that based on the law and the court findings regarding a Missoula private cigar lounge, Omerta was not in violation of the rules.

CCHD staff have discussed concerns about the Omerta Cigar Lounge with the Board of Health on a regular basis since November 2021.

They have raised concerns about allowing the business to operate since it shares walls with other businesses and they worried about its compliance under the Montana Clean Indoor Air Act.

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The lounge, which is locally owned in a space above Pizazz on Central Avenue, has argued that because it’s a private, members only lounge with no employees, the law doesn’t apply to their operation.

Similar issues have been raised in Missoula, where a cigar lounge opened next to the children’s museum. Courts ruled that because the club was private, it could operate and the Montana Clean Indoor Air Act didn’t apply.

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The Missoula children’s museum vacated their space next to the cigar lounge.

During the Sept. 12 health board meeting, officials discussed that the Montana Supreme Court upheld the board’s regulations regarding the Montana Clean Indoor Act, but while that litigation was pending and since its conclusion, that the county hasn’t done any enforcement of those regulations or received any complaints.

Earlier this year, the board accepted a settlement with Totem Beverages, also known as the Do Bar, over a 2016 lawsuit stemming from a January 2016 notice to Totem, citing alleged violations of the smoking shelter local regulations. The 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 agreed 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 2021 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.

Carey Ann Haight, deputy county attorney, said the issue of selective enforcement would remain if the board chose to take enforcement action against Omerta and not other establishments that The Do Bar owners had alleged during their litigation that were also in violation of the Montana Clean Indoor Air Act.

Hill said during the Oct. 5 meeting that CCHD staff was working on a plan to address the complaints of other establishments violating those rules that were raised by The Do Bar during the lawsuit.

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 in January 2022.