State extends smoking ban to private clubs

OLYMPIA – A sharply divided state Supreme Court ruled Thursday that Washington’s smoking ban applies to private clubs that have employees.

In a 5-4 decision, the majority said the law created by Initiative 901 clearly prohibits smoking in workplaces – including private clubs.

American Legion Post 149 in Bremerton sued the state and Kitsap County after it was ordered in 2006 to ban smoking or face prosecution.

The court’s dissent argues that voters never intended to require private clubs to be subject to the smoking ban, and that the initiative didn’t change the underlying law to include those clubs.

Voters overwhelmingly approved the indoor smoking ban in 2005. Initiative 901 prohibited smoking in bars, restaurants, bowling alleys, minicasinos, most hotel rooms and most other nontribal businesses that had been exempted by the state’s Clean Indoor Air Act, which already banned smoking in most public places.

The American Legion post argued that the initiative did not change language in state law that said, “This chapter is not intended to restrict smoking in private facilities which are occasionally open to the public except upon the occasions when the facility is open to the public.”

But the majority, led by Justice Mary Fairhurst, said that I-901 broadened the prohibition against smoking to include any place of employment.

While noting that the law is unclear on the relationship between the private facilities exception and prohibition against smoking in any place of employment, the majority said exempting private clubs with employees “would eviscerate much of the Act and interfere with the express intent of the voters, which was to protect employees regardless of whether their place of employment is a public place.”

In enacting I-901, voters intended to enlarge the smoking ban because of concerns about secondhand smoke, Fairhurst wrote. She was joined by Chief Justice Gerry Alexander, Justices Susan Owens and Barbara Madsen and Justice Pro Tem Bobbe J. Bridge.

“Unlike the former Clean Indoor Air Act, the voters in Initiative 901 recognized the importance of protecting workers in their places of employment from harmful exposure to secondhand smoke,” the majority wrote.

But the dissent said private facilities are excluded from the law, regardless of whether they have employees.

“To interpret the statute any other way is not only to ignore the text and intent of the voters but also to invite constitutional error,” Justice Richard Sanders wrote.

“Undoubtedly the smoking ban regulates private property. But more fundamentally the smoking ban prohibits private conduct. It is this regulation of private conduct I find most disturbing,” Sanders wrote.

Justices Tom Chambers and Jim Johnson wrote separate dissents.

Shawn Newman, who represented the American Legion post, said he was considering appealing the case to the U.S. Supreme Court.

“The majority acknowledges that the law is vague, but rather than find it unconstitutional, they rewrite it, which is not their role,” he said.

Dan Sytman, a spokesman for the state attorney general’s office, said that the decision “upholds the will of the people to protect employees against secondhand smoke in the workplace.”