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Court of Appeals Ruling Regarding Pierce County Smoking BanFebruary 26, 2004
IN THE COURT OF APPEALS OF THE STATE OF
The Tacoma-Pierce County Board of Health and Health Department seek a stay, pending review, of a Pierce County Superior Court order invalidating Board of Health Resolution 2003-3527, which prohibits smoking in all indoor public places and places of employment in
At issue here is the effect of several provisions of Chapter 70.160, RCW, the Clean Indoor Air Act. Subsection 70.160.010 provides:
The legislature recognizes the increasing evidence that tobacco smoke in closely confined places may create a danger to the health of some citizens of this state. In order to protect the health and welfare of those citizens, it is necessary to prohibit smoking in public places except in areas designated as smoking areas.
RCW 70.160.030 prohibits smoking in public places except in designated smoking areas. RCW 70.160.040 lists the places that may not have designated smoking areas, and provides in subsection 70.160.040(b):
Except as provided in other provisions of this chapter, no public place, other than a bar, tavern, bowling alley, tobacco shop, or restaurant, may be designated as a smoking area in its entirety.
RCW 70.160.080 authorizes local fire departments or fire districts and local health departments to “adopt regulations as required to implement this chapter.”
The trial count found that Resolution 2003-3527 conflicts with RCW 70.160.040, in violation of Article 11, §11 of the Washington State Constitution. That section states:
Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.
The County asserts that the Resolution is authorized by and consistent with RCW 70.05.060(3) and (4), which require local boards of health to enact rules and regulations necessary to preserve, promote, and improve the public health, and provide for the control and prevention of any dangerous, contagious or infectious disease within its jurisdiction.
The legislature granted broad authority to local health officials in RCW 70.05.060. It also encouraged greater participation from local governments in dealing with substance abuse in the Community Mobilization Against Substance Abuse Act, Chapter 43.270, RCW. In RCW 43.270.010, the legislature expressed its intent that statewide efforts aimed at reducing the incidence of substance abuse, including alcohol and tobacco, be increased. It further recognized that the most effective strategy in such an effort would involve the collaboration of local groups, including local government officials.
Great deference is given to local legislative activities. Public health statutes and the actions of local health boards must be liberally construed. Spokane County Health Dist. v. Brockett, 120 Wn.2d 140, 149 (1992). Accordingly, “[a] statute will not be construed as taking away the power of a municipality to legislate unless this intent is clearly and expressly stated.” State ex rel. Schillberg v.
There is an unconstitutional conflict if an ordinance permits that which a state law forbids, or prohibits that which a state law permits. Rabon v. City of
Apparent inconsistency with one statute might not require invalidation if another statute appears to authorize the action taken by the local health board. See Brockett, 120 Wn.2d at 146-52 (county’s needle exchange program was consistent with state statute providing for needle sterilization, and that statute prevailed over a statute criminalizing the delivery of drug paraphernalia). Neither is there necessarily a constitutional conflict because a local regulation prohibits entirely an activity that the state law permits. See Weden v.
This court must interpret RCW 70.160.040 in the context of the deference given to local health regulations, the heavy burden of proving preemption, the requirement that public health laws be liberally construed, and the legislature’s expressed interest in giving local governments a greater role in dealing with substance abuse. In this context, it is at least arguable that Chapter 70.160, RCW, is prohibitive as contemplated by Brown v. Yakima, supra; that the provision for designated smoking areas in restaurants, bars, taverns, tobacco shops, and bowling alleys is not an exemption and does not confer an absolute right to permit or invite smoking in those places; and that RCW 70.160.080 does not clearly and expressly limit the scope of a local regulation to the parameters established by the state law.
BALANCE OF HARM
The findings supporting Resolution 2003-3527 were based on at least 20 studies indicating, inter alia, that there is no safe level of environmental tobacco smoke (ETS), and that workers in the hospitality industries are exposed to ETS levels that are equivalent to smoking two packs of cigarettes a day. Based on the studies, it is estimated that in
The Entertainment Industry Coalition (EIC) asserts that several of its members suffered losses in revenue during the time that Resolution 2003-3527 was in effect and some were told by customers that they would go elsewhere if they could not smoke. EIC has produced the affidavit of the manager of the Silver Dollar Casino, asserting that the casino lost $27,000 in a three-day period in early January. If this regulation is enforced, some businesses will undoubtedly suffer losses, at least initially. However, the evidence submitted is too little and too speculative to provide a reliable estimate of those losses. In any case, the interest of the citizens of the county in their physical wellbeing must outweigh the financial interest of the members of EIC.
For the reasons discussed above, it is hereby
ORDERED that the Pierce County Superior Court order invalidating Resolution 2003-3527 is stayed pending resolution of this appeal. The Resolution is effective upon the filing of this ruling.
DATED this _________ day of _____________________________, 2004.
Ernetta G. Skerlec
cc: Paul J. Lawrence
Jay S. Carlson
Samuel R. Watkins
Malaika M. Eaton
Hon. Ronald E. Culpepper
Cause number: 04-2-03878-8
 The act was passed in 1989, but it specifically listed tobacco as one of the substances of concern in a 2001 amendment. See Laws of 2001, ch. 48 §1.
 See RCW 43.270.010.
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