After settling a lawsuit and investigating a complaint related to smoking and the Montana Clean Indoor Air Act, the Cascade County health board is reviewing their own regulations pertaining to smoking shelters and enforcement.
The Montana Legislature amended the Montana Clean Indoor Air Act in 2005 related to smoking.
The law prohibits the use of tobacco products in all public schools and any indoor area, room or vehicle that the general public is allowed to enter or that serves as a place of work, according to the City-County Health Department.
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Bars and casinos were granted a temporary exception and had until Oct. 1, 2009 to comply.
In 2015, the county board of health adopted its own local regulations on smoking shelters.
In 2016, Totem Beverages, also known as The Do Bar, sued the county health board.
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CCHD had issued 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.
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.
In January 2022, the health board voted to accept a settlement with Totem, paying the company $5,000 and withdrew their 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 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.
While the case was being litigated, 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.
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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.
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During the health board’s Jan. 4 meeting, Haight and CCHD officials reviewed the enforcement options for the board.
Haight said the board could update their regulations or become more proactive with inspections and enforcement.
She said that if they choose to be more proactive on enforcement, she’d recommend a public information campaign and that the board should prepare for more litigation.
Haight said that since the smoking shelter regulations were approved before the Legislature changed the law on governing bodies for local health departments, she didn’t see that as an issue if the regulation remains unchanged.
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If the board opted to change the regulations, they’d need approval from the governing body, which doesn’t technically exist currently as the county and city are in litigation over the makeup of that body.
The current CCHD regulations include inspections, which haven’t been done over the last few years during the Totem litigation.
Haight said there would likely be a learning curve since new establishments have opened and some are under new ownership.
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She said the board could set a date by which the board would expect the community to have reviewed and addressed any noncompliance issues before CCHD resumes inspections.
But, she said the CCHD sanitarians who would perform those inspections are already swamped and the division is short-staffed, so adding smoking shelter inspections to their tasks “may not be reasonable as a practical matter.”
Haight said that other communities haven’t had issues with compliance with the smoking rules.
Dr. Ray Geyer, who recently retired as an infectious disease doctor at the Great Falls Clinic, said “that makes me feel that we’re backwards and need to be moving into that thought that smoking is illegal in these establishments.”
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Haight told the board that the state created an online database where people can report smoking violations and enforcement was a complaint driven process.
She said those were anonymous and the county hadn’t received a complaint through that system in years.
She said that smoking shelters were an issue in 2015 and 2016 but may not be as much of an issue now.
Wade Stout, the prevention specialist at CCHD, said they get a few local complaints annually.
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Haight said there may be establishments that aren’t compliant with the regulations, but they aren’t getting complaints about them.
Board members asked Rhonda Knudsen, the new head of CCHD’s environmental health division, what it would take to enforce the regulations.
She said she didn’t know how they’d enforce it and hadn’t had a chance to review the regulations before the meeting.
Knudsen said her some of her questions included would an establishment have to get CCHD approval before constructing a smoke shelter and where there are existing shelters they don’t know about.
She said it would always seem as though CCHD was picking on an establishment, which was a key issue in the Totem lawsuit as that company alleged selective enforcement by CCHD.
County Commissioner Joe Briggs, a health board member, said that the only way to avoid the appearance of selective enforcement would be to make the smoke shelter inspection part of the normal food and beverage inspections.
“We don’t want to put out people looking for problems,” Briggs said. “If you’ve got a regulation, you’ve got an obligation to enforce it.”
He said that since CCHD is already understaffed, the logical solution would be to make smoke shelters part of the regular inspection process when sanitarians are already visiting an establishment.
He said if CCHD received a complaint, they’d instruct staff to investigate.
Briggs said he didn’t support changing the regulations as it would likely encourage more litigation.
Great Falls Mayor Bob Kelly, a health board member, asked staff to work on how to enforce the existing regulations through regular inspections and the complaint process.
Haight said enforcement isn’t a problem until an establishment gets a violation and they could end up in court fighting about it.
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