Doc Harper’s

Tara Mahoney, assistant manager at Doc Harper’s Tavern, pours a martini in March. At the time, Mahoney said she understood the need for the Clean Indoor Air Act banning smoking inside public buildings, but a Yellowstone County rule limiting outdoor use goes too far.

A judge has ruled against a group of bar owners and upheld the county’s smoking ban within 20 feet of public buildings.

In a ruling issued Friday, Yellowstone County District Court Judge Gregory Todd upheld the county’s new smoking buffer rule as lawful.

The Yellowstone County Tavern Association had sued the county in February, arguing the rule — passed in December 2017 — "enjoyed literally no legitimate public support before its passage,” and that the county health board issued the rule in a “soft totalitarian” manner designed to suppress public participation. The tavern group also claimed the health board did not have a scientific basis for the rule.

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.

But the Yellowstone City-County Health Department Board of Health noted it held two public meetings on the proposed rule and gave notice of both, bumping one of the meetings to the evening to accommodate more people. At the initial meeting, eight people spoke in favor of the proposed rule and 10 spoke against it.

The health board can enforce the Montana Clean Indoor Air Act under the direction of the Department of Public Health and Human Services. An agreement between the state and county has been in place since 2012, the judge’s order noted.

Todd ruled that the county properly cited scientific studies that served as the basis for its smoking ban, as required by state law. The health board included a fact sheet pulling from multiple studies showing that outdoor smoke can be as concentrated as indoor secondhand smoke, and that it can be detected at distances beyond 13 feet.

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 the 20-foot rule to create a non-smoking buffer around public buildings.

The rule means restaurants and bars can no longer let people smoke on outdoor patios, provided those patios are within 20 feet of the entrance, window or ventilation system.

Corey Welter, of the tavern association, said the group had not yet decided whether to appeal the ruling but that upholding the rule, which has been in effect since March, was an "economic hindrance" to the business owners. He stressed it would be the business owners who face fines, and not the smokers, for violating the rule. 

John Felton, CEO of RiverStone Health, applauded the ruling. 

"The tavern association made their case, we believed that we did it appropriately, the judge agreed and we’re grateful for that," Felton said. 

Felton added the rule would have a long-term benefit for the county. 

"In terms of the long-term impact on the public’s health, there is no safe exposure to secondhand smoke, according to surgeon general of the United States," Felton said. "So anything we can do to reduce that exposure is going to be good for the public in the long run."

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Justice Reporter

Justice reporter for the Billings Gazette.