By Michael Howell
The County Commissioners have decided to drop consideration of a policy making all county-owned property tobacco-free after receiving a letter from District Court Judge Jeffrey Langton. After reading a newspaper article about the proposed policy, Langton wrote to the commissioners, stating that “smoking and other tobacco use outside county administrative and courthouse buildings on county property is a legally protected activity and the Commission has no lawful authority to ban outdoor smoking in those areas under existing Montana law.”
The commissioners heard a proposal for establishing a tobacco-free policy that would prohibit all forms of tobacco products and the use of those products, including e-cigarettes and chewing tobacco, on the grounds or in any of the buildings owned by the County from Tobacco Free Ravalli County coordinator Lindsay Stover in early August. They agreed to consider the matter and asked Stover to help prepare a draft policy.
Langton wrote to the commissioners on August 13, reminding them of their “earlier misguided attempt in 2006 to ban smoking within 25 feet of county buildings, which the commissioners ultimately retracted.”
Langton said that he pointed out at the time that the Montana Clean Indoor Air Act only prohibits smoking in an “enclosed public place.” The term is defined as “an indoor area, room, or vehicle that the general public is allowed to enter or that serves as a place of work….”
In his letter, Langton went on to note that in a comment to the Department of Public Health and Human Services regarding the adoption of administrative rules to administer the Act, a commenter stated that a new rule should clarify whether or not smoking outdoors near a workplace is prohibited.
He quotes the Director of the Department, stating: “The statute prohibits indoor smoking and does not address outdoor smoking. Therefore, the department has no authority to prescribe by rule anything about outdoor smoking.”
Neither does the County, according to Langton.
“I am certain you are fully aware that Ravalli County voters have rejected the assumption of self government powers and therefore Ravalli County, as a traditional county government, only has those legislative, administrative and other powers specified or necessarily implied from those expressed in state law,” wrote Langton.
He concludes that, “no case can be made that the law necessarily implies a ban on outdoor smoking… any ordinance to the contrary would be illegal and unenforceable.”
Jeff Burrows, Chairman of the Board of Commissioners, said that the Commission had dropped consideration of the matter after receiving Langton’s letter.