Judge Day kills smoking ban

Ninth Judicial District Court Judge Timothy Day on Wednesday struck down the county-wide smoking ban passed by the Teton County Board of Health two years ago.

Day said in a ruling the Smokefree Air Rule of 2009 not only was outside of the authority of the county board of health but that the act of passing it was unconstitutional.

“The District Board of Health has exceeded the rulemaking authority granted to a district board of health in [state statute] by enacting rules beyond the scope of an area regulated by the state Department of Health and without clear direction from the Wyoming Legislature,” Day said in the ruling. “In any event, the enactment of a rule that creates a new criminal offense in the absence of appropriate authority is a legislative act and in clear violation of the Wyoming Constitution.”

Mike Moser, executive director of the Wyoming State Liquor Association, praised the ruling. His group was one of several that challenged the ban.

“I’m relieved,” Moser said. “And I agree with it.

“Elected officials are the ones to make this kind of decision,” he said. “They’re good people trying to do good things, but sometimes we disagree over the process.”

The crux of the lawsuit was whether boards of health could broaden their authority, Moser said

“It wasn’t just about a smoking ban in Teton County,” Moser said. “It was about how far boards of health can go in making rules regulating workplace safety.”

In striking down the ruling, Day acknowledged that the “ … rising incidence of tobacco-related illnesses attributed to secondhand smoke cannot be ignored,” but said the process by which the rule was passed was problematic.

“The court can only imagine that the individuals on the board who created the Smokefree Air Rule were motivated by legitimate public health concerns,” Day said in the ruling. “However well-intentioned and beneficial the regulation may be, the Court nonetheless cannot extend the authority of the District Board of Health beyond clearly stated and well-defined limits within the law and constitution.”

The local health board passed the rule in March 2009. Almost immediately after, Flat Creek Development, which owns the Virginian Saloon, along with the Wyoming Contractors Association, Wyoming Trucking Association and the State Liquor Association, filed suit. They claimed the board did not have the authority to pass such a rule.

During numerous court hearings, county attorneys argued state law clearly affords the board the authority to, “enact rules and regulations pertaining to the prevention of disease and the promotion of public health.”

The rule, which was never put into effect because of the lawsuit, banned smoking in all public areas, including bars and restaurants and within 20 feet of such businesses.

The rule provided exemptions for private residences and hotel and motel rooms rented to guests.

Day said state law bars appointed boards from extending their authority beyond what is defined by elected officials. Doing otherwise, Day said, shirks a public process.

“Here, in the case of the Smokefree Air Rule, a local, unelected board is, in effect legislating a new criminal offense in the absence of an explicit standard from either the state Department of Health or the Wyoming Legislature,” Day said in the ruling. “And it does so with no oversight from any elected officials or body. This impermissibly circumvents the legislative process and it precludes public participation and the checks and balances inherent in the legislative process.”

Day noted several times in the ruling that the state legislature and town council, two bodies legally able to pass a smoking ban, have elected not to.

Furthermore, Day said he was particularly troubled by the lack of oversight of the board of health’s decision to pass such a rule.

“Although district boards of health are not subject to approval by the Governor, it is notable that the Smokefree Air Rule has not been reviewed or approved by any elected board or official within the District of Teton County,” Day said in the ruling.

Despite the thorough ruling, some see the judgment as the first step in a protracted legal challenge.

Dr. David Shlim, chairman of the county board of health, called the ruling “a shame” and said it likely would be appealed.

“Non-smoking rules are going into effect all over the world,” Shlim said Thursday.

Shlim said that although the ruling was a step backward for the county, he is glad that most bars and restaurants voluntarily have adopted no-smoking policies.

source: www.jhnewsandguide.com

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