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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 Pierce County. In evaluating the merits of this request, this court must consider whether the appeal presents debatable issues, and whether the moving party will suffer greater harm if the stay is not granted than the respondent will suffer in the event of a stay. RAP 8.1(b)(3). For the purposes of this motion, this court examines the merits of the appeal only to the extent necessary to determine debatability. Shamley v. Olympia, 47 Wn.2d 124, 127 (1955).

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.[1] 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. Everett Dist. Court, 92 Wn.2d 106, 108 (1979). The party challenging a local regulation must prove constitutional preemption beyond a reasonable doubt. Seattle v. Shin, 50 Wn. App. 218, 220, review denied, 110 Wn.2d 1025 (1988).

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 Seattle, 135 Wn.2d 278, 292 (1998). However, where both laws are prohibitive, a local ordinance does not conflict with a state statute in the constitutional sense merely because it prohibits a wider scope of activity. Brown v. Yakima, 116 Wn.2d 556, 562 (1991) (city could impose greater restrictions on the sale and discharge of fireworks than those imposed by the state statute); see also State v. Lundquist, 60 Wn.2d 397, 400-01 (1962) (no constitutional conflict, even though state statute prohibited only willful discharge of firearm, while Longview ordinance applied also to negligent and accidental behavior).

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. San Juan County, 135 Wn.2d 678 (1998) (statute providing for registration of watercraft does not grant an unconditional right to operate such vessels, and county could prohibit the use of personal watercraft in its waters). However, courts have held that a local regulation cannot fail to recognize an exemption provided by state law. See City of Tacoma v. Franciscan Found., 94 Wn. App. 663, 668-69 (1999) (city’s ordinance conflicted with state antidiscrimination law because it did not exclude religious groups); and Ritchie v. Markley, 23 Wn. App. 569, 573-74 (1979) (county’s shoreline management ordinance conflicted with state SMA because it did not exclude from the definition of “substantial development” irrigation projects and agricultural access roads).

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[2] 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.

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 Pierce County, ETS is responsible for 33 deaths a year from heart disease, lung cancer, and SIDS. As to children in particular, it is responsible for an estimated 12 low birth weight infants, 2,829 ear infections, 71 new cases of asthma, 1,715 incidents of asthma exacerbation, and 553 cases of lower respiratory disease, such as bronchitis and pneumonia. There is no evidence before this court suggesting that these studies and estimates are inaccurate.

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.

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.

[1] 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.

[2] See RCW 43.270.010.

Washington Courts: Press Release Detail

Court of Appeals Ruling Regarding Pierce County Smoking Ban