Not everyone is happy with the new regulations against smoking in public places.
The Yellowstone County Tavern Association filed suit on Thursday against Yellowstone City-County Board of Health (Riverstone Health) and against Yellowstone County over the recently issued restrictions on smoking of tobacco and e-cigarettes.
Plaintiffs ask the court to void Rule No. 7, as a violation of the Montana Constitution.
The suit challenges the rule on grounds that the Board minimized public participation, acted contrary to the will of the people, sets arbitrary rules, makes business owners responsible for violations by others, endangers the public, lacks due process in enforcement, and will result in lost revenues for business owners.
Plaintiffs charge that the City-County Board of Health (Riverstone) deliberately avoided public participation, in what they describe as “an anti-democratic and soft totalitarian fashion.” The board deliberately minimized public participation of the enactment of “Rule No. 7”, says the complaint, filed in 13th Judicial District Court by plaintiff’s attorney, Randall G. Nelson.
The Yellowstone County Tavern Association is part of the Montana Tavern Association (MTA), an organization that represents small business owners who own liquor licenses. Founded in 1937, the MTA has about 800 members statewide.
The complaint states that “While the Board technically complied with providing notice, setting a meeting at 7:00 am before regular business hours is so obviously designed to suppress public participation that it violates” the Montana Constitution. The Board approved the rule on December 14, 2017, after telling the public at a public hearing in June that they would likely decide the matter in October.
“Only one person spoke in favor of the Rule, and on information and belief that person did so upon the invitation and urging of the Board, in order to create a pretense of support for its anti-democratic agenda. All other persons who addressed the Board on prior occasions had spoken in opposition to the Rule. While the Board engaged in the most de minimis technical compliance with open meeting and public participation laws, Rule No. 7 was nonetheless enacted without adequate due process and in violation of equal protection laws, as the Board shoved through the Rule with no recognition of public opinion and with a contrived support of one person.”
Plaintiffs further contend that the new rule was adopted in opposition to the will of the people which is also unconstitutional in that the Montana Constitution requires “the exercise of governmental power to be done upon the will of the people.” They further state, it “is an arbitrary and capricious exercise of governmental power.”
The Board failed to pass the rule in initial voting, states the document.
Plaintiffs contend also that the 20 foot stipulation “is based on no science, reason, or common sense.”
Making business owners or managers responsible for the violation of law by others in public areas is also being challenged in the suit. It also claims the law “would dangerously force the business’s patrons to enter the street or alleyway in order to exercise their right to smoke or ‘vape’ outdoors. The actual risk of harm from enactment of Rule No. 7 exceeds the theoretical risk of harm from exposure to outdoor smoke.”
There is no due process for enforcing the new law, contend plaintiffs. It creates a fine and penalty system against tavern association members that requires no due process or standards of proof.
Plaintiffs also point out that the Rule deals with outdoor air quality, not indoor, which is what is governed by the Montana Indoor Clean Air Act, upon which the Board says the Rule is based.
The Tavern Association also contends that their members will suffer a loss of business as patrons no longer do business with them, especially those which lack adequate space near doorways to comply with the law.