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Judge upholds ban on smoking within 20 feet of buildings in Yellowstone County

Posted at 2:17 PM, Dec 17, 2018
and last updated 2019-07-17 14:50:44-04

BILLINGS- A Yellowstone County district judge has upheld a local rule prohibiting smoking and vaping within 20 feet of entryways, doors, windows or vents of public buildings.

Judge Gregory Todd’s ruling, issued late Friday, was a defeat for the Yellowstone County Tavern Association, which had argued that the rule adopted by the Yellowstone City-County Board of Health was unconstitutional.

Todd rejected that argument and others put forward by the tavern owners, who initially challenged the new rule in a suit filed last February, two months after it was adopted by the health board. It took effect March 1. The ruling was issued one week after a hearing at which both parties presented their arguments to Todd.

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Yellowstone County District Judge Gregory Todd looks over documents handed to him by Randy Nelson, the lawyer for the Yellowstone County Tavern Association, at a hearing in Friday, Dec. 7. photo by Ed Kemmick/ for MTN News

Corey Welter, president of the Yellowstone County Tavern Association and a plaintiff in the suit, said Monday that he hadn’t seen the ruling yet, but thinks the association might appeal Todd’s ruling.

“I believe we would,” he said. “I think we would look at that very hard.”

Todd’s ruling denied a motion for summary judgment sought by the tavern owners and granted a cross-motion for summary judgment filed by the health department, which operates under the name RiverStone Health.

The tavern owners, represented by Billings lawyer Randy Nelson, argued that the health board’s Rule No. 7, as it was called, violated the Montana Constitution two ways. The first argument was that it was “arbitrary and capricious” because it was not based on scientific, peer-reviewed findings.

They further argued that the rule violated the constitution because it allows complaints to be lodged anonymously, depriving tavern owners of their right to confront their accusers.

In regard to the first argument, Deputy County Attorney Kevin Gillen said, and Todd agreed, that because the rule was not aimed at a protected class and did not involve a constitutional right, it only needed to be “rationally related to a legitimate government objective.”

Under that standard, Todd ruled, “the Board has a legitimate government interest to keep the public safe from secondhand smoke.”

As for allowing the use of anonymous complaints, Todd wrote, it passes constitutional muster because methods of enforcement and penalties are the same in the local rule and in the Montana Clean Indoor Air Act, which gave local boards of health authority to enforce the law and to adopt additional regulations, as long as they don’t conflict with the act.

“Further,” Todd ruled, “as in any criminal case, an uncorroborated complaint will not result in prosecution. … The Board would have to turn over any complaints to a prosecutor, and the County Attorney would only file charges based upon probable cause and adequate evidence.”

The tavern association also maintained that the local rule conflicted with the Clean Indoor Air Act, but Todd said it only created a new, stricter regulation, “as allowed by the statute.”

Related to the constitutional argument, the tavern owners also challenged the local rule on the grounds that under state statute, the health board was required to “reference the studies that formed the basis of their conclusion.” However, the suit said, only four pages of the 683 pages of justification provided by the board discussed the harmful effects of outdoor smoke.

Those four pages, Todd wrote, “showed that under some conditions, outdoor levels of smoke can be as high as indoor levels of secondhand smoke,” and those observations came from “a peer-reviewed fact sheet that cited multiple studies across the United States and Canada.”

“The Board is not required to adhere to the studies verbatim,” Todd continued, “so long as they make a showing that they referenced them in making their decision. The Court is satisfied that the Board did so here.”

Welter, the tavern association president, said he was still most worried about the idea that an anonymous complainant could “turn in a business owner — not a smoker but the business owner,” resulting in charges against the owner.

Nelson, the association’s lawyer, made the same point in last week’s hearing, saying it was “ludicrous” to imagine charging a business owner with a crime based on the activities of someone in the public space outside his business, someone who might not even be a patron of that business.

Welter said the worst was yet to come.

“We put a lot of effort into it, and now that it’s become a rule they will start enforcing it,” he said. “They were just playing nice before so this wouldn’t come into the public eye too much.”

Story by Ed Kemmick for Q2 News