Smoking rules require signed complaints
By Cole Boehler
Montana Tavern Times
On June 25 the Department of Public Health and Human Services published new rules, MAR Notice No. 37-477, fully implementing the ban on smoking in indoor public places enacted by the 2005 Legislature.
The original proposed rules would have allowed anonymous complaints to be filed against businesses where smoking was allegedly occurring in violation of the law. The final published version, after taking into account testimony offered at a July public hearing, was amended to require complaints be signed.
In its response to comments on the proposed rule, the Department wrote, "(We) agree that complaints where the complaining party is identified are more likely to be valid and will not make the proposed change."
At the time of the hearing, representatives of some business associations protested the idea of anonymous complaints, including Mark Staples of the Montana Tavern Association and Neil Peterson of the Gaming industry Association. Rep. Harry Klock, (R-Harlowton) also testified in opposition to that clause as did individual business owners. Written comments in opposition were also filed, whereas only one person testified in favor.
In essence, business representatives argued the proposed rule could be abused and was unnecessary.
Staples said, "MTA, GIA, and the licensed community at large is expecting full compliance, and thus believe that the late proposal for allowing anonymous complaints to spur investigations or citations flies in the face of that positive approach and expectation.
"The requirement for a signed complaint has worked appropriately and was unchallenged for restaurants, offices, businesses and all other public entities. So, why segregate out licensed establishments for different treatment now that they, too, will become non-smoking?
"It appears to insinuate that our folks will act punitively to anyone complaining. That's an unwarranted and unsupported insinuation, has no place in the rule-making process, and sets exactly the wrong tone as we go into the transition.
"If any business of any kind retaliated against a complaining employee, they would have bigger legal problems than a misdemeanor citation–they'd have an expensive court suit to contend with, so the rationale behind the "anonymous" proposal doesn't stand up.
"Let's go on as we have. It's working. If we run into problems, we'll deal with them then. Let's not abridge due process of law (right to know who has accused you) for mere speculation."
Rep. Klock said, "No new laws had been passed since the last set of rules was negotiated and implemented and thus, beyond the clean-up language, there is no justification for implementing new rules. In my opinion, if the proposal for allowing anonymous complaints had been part of the original conception for the non-smoking bill, the Legislature would never have approved it."
Another comment the Department considered was, "... Owners of establishments plan to build or are in the process of building non-enclosed shelters on their property to allow customers to smoke."
The Department responded to that concern, "ARM 37.113.101(2) defines an 'enclosed room' and 50-40-103(2), MCA defines 'enclosed public place.' Smoking that occurs outdoors or under a non-enclosed shelter is not governed by the Clean Indoor Air Act. The department does not have the statutory authority to regulate or investigate non-enclosed shelters where smoking is allowed unless these shelters fall under these definitions."
Another comment the Department considered but rejected suggested investigations (of complaints) should be mandatory rather than permissive, as stipulated in the proposed rules.
The Department responded it believed "it is important to allow local health departments or their designees the discretion to determine if an investigation is necessary and will keep the proposed language 'may conduct an investigation' in this section.
"A local health department or their designee may receive complaint(s) that they deem are valid and do not feel an investigation is necessary. Or, a local health department or their designee may receive multiple complaints regarding a specific establishment during a short time period, and more than one investigation is not necessary."
The department received several written comments recommending that smoking continue to be allowed in bars in Montana and responded, "... the Montana Clean Indoor Air Act prohibits smoking in any public place, including bars and casinos after September 30, 2009," and that it lacks the authority to change the statute, which is a legislative prerogative.
The Department stated it intends to apply these rules effective October 1.