Local tavern owners have sued the county over a new 20-foot ban on smoking or vaping outside of businesses, saying the board issued the rule in a “soft totalitarian” manner designed to suppress public participation.
The lawsuit, filed by the Yellowstone County Tavern Association, says the city-county health board forced the new rule’s passage in December without scientific proof for its need, and without proper regard for opposition to the measure.
The suit was filed on Feb. 16 in Yellowstone County District Court. It names the Yellowstone City-County Board of Health, the city of Billings and Yellowstone County. It asks the court to void the new smoking rule.
The Board of Health "slipped through (the ordinance) in a manner that deliberately minimized the public participation," the lawsuit reads.
The tavern owners also say there is little public support for the measure and that the board had received more public testimony in opposition to the measure than in support.
The smoking rule "enjoyed literally no legitimate public support before its passage,” the lawsuit reads.
Hopefully, we all do our best to be healthy. If we eat our fruits and vegetables, exercise regularly, drink plenty of water and avoid harmful …
The rule, which took effect March 1, bans indoor vaping and requires a 20-foot buffer between people smoking or using e-cigarettes and a public building’s entryway, windows or ventilation system.
The state’s public buildings have been smoke-free since 2009, under the Montana Indoor Clean Air Act passed four years earlier. The new Yellowstone County rule extends the indoor smoking ban to e-cigarettes and adds on the 20-foot rule to create a non-smoking buffer around public buildings.
The rule means restaurants and bars will no longer be able to let people smoke on outdoor patios, provided those patios are within 20 feet of the entrance, window or ventilation system.
Tavern owners say that while the health board technically complied with public meetings laws, setting the hearing at 7 a.m. was “so obviously designed to suppress public participation” that it constitutes a violation of the public’s right to participate in government, as guaranteed in the state Constitution.
Come March 1, e-cigarettes will no longer be allowed inside public and commercial buildings in Yellowstone County.
But the health board had been discussing the issue as far back as June. In a meeting held at 5 p.m. on June 21, 2017, eight people spoke in support of the proposed rule and 10 spoke in opposition.
The meeting was held in the evening in order to accommodate more people, said John Felton, CEO of RiverStone Health.
The December board meeting was held at 7 a.m., Felton said, because the board has met at that time, on the fourth Thursday of the month, since it convened in 1998, Felton said.
The lawsuit also claims that the rule failed an initial vote by the health board, but Felton said there was only one vote on the measure. It passed 7-3.
Felton said that in a public notice for the December meeting, county officials note that a final vote on the rule was expected, Felton said.
The health board also amended its originally proposed 30-foot buffer zone to the 20-foot zone that was adopted.
Tavern owners say that in the case of businesses located directly next door to other public buildings (as opposed to standalone buildings), the move will “dangerously force the business’s patrons to enter the street or alleyway in order to exercise their right to smoke or ‘vape’ outdoors,” according to the lawsuit.
A proposed rule that would ban indoor vaping and bar smoking within 30 feet of commercial doorways would hurt local businesses and curtail ind…
Those businesses will take a hit on sales as smoking customers opt not to return, the lawsuit says.
The tavern owners are asking the court to nullify the new rule “for violation of the Montana Constitution.”
The health board cited increased rates of youth using e-cigarettes as well as the aerosol contained in e-cigarettes that are toxic and can cause respiratory problems or cancer as reasons for the new rule.
The rule was prompted by research that e-cigarettes in public places "re-normalizes tobacco use among youth" and could serve as a gateway to other tobacco products, according to a memo on the rule from Felton.
Corey Welter, of the Yellowstone County Tavern Association, said the group has never contested the indoor vaping rule, and that the 20-foot smoking ban was the reason for their complaint.
The new rule is an administrative rule that counties have the power to make under the Montana Indoor Clean Air Act and will be enforced by county health officials, not by law enforcement.
Tara Mahoney, assistant manager at Doc Harper’s Tavern, said she understands the need for the Clean Indoor Air Act banning smoking inside public buildings.
“But outdoors is outdoors,” she said, arguing the new county rule goes too far.
After the indoor smoking ban took effect in 2009, casinos in other parts of town that have larger lots built outdoor smoking huts to accommodate their smoking customers.
But businesses in more crowded districts like downtown didn’t have the space to make that sort of adjustment then, Mahoney said. And with the new 20-foot rule, they’re again in a tough spot, as back-to-back businesses mean downtown smokers will need to walk farther away to have a cigarette than they will at businesses in other parts of town that have their own lot.
Enforcement will be triggered by complaints. Public buildings are required to post signs at entrances informing people of the 20-foot rule, and businesses must tell customers when they are violating the rule.
A business that gets a third violation within three years will be guilty of a misdemeanor. First violations receive a warning. Second violations receive a written warning. And within a three-year period, subsequent violations will be fined $100 for the third violation, $200 for the fourth violation and $500 for the fifth or subsequent violation.
Individuals violating the new rule will be guilty of a misdemeanor and subject to a fine of between $25 and $100.
Complaints may be submitted online at RiverStoneHealth.org/CleanIndoorAir.
Attorney Randy Nelson, of Nelson Law Firm PC, is representing the tavern owners.