Washington justices say smoking ban extends to private clubs

By Chris Rizo | Sep 12, 2008

Mary Fairhurst

Richard Sanders

OLYMPIA, Wash. (Legal Newsline) -The Washington state Supreme Court has ruled that the state's ban on smoking in workplaces extends to private clubs that have employees.

The 5-4 decision Thursday affirmed that the state's anti-smoking law created by Initiative 901 also affects private clubs, just as it applies to bars, restaurants, bowling alleys and non-tribal casinos
American Legion Post 149 in Bremerton, Wash., challenged the law, suing the state and Kitsap County after it was ordered to ban smoking at its club or face prosecution.

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

The American Legion post argued 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."

The high court's majority disagreed. Writing for the majority, Justice Mary Fairhurst said that Initiative 901 broadened the state's existing prohibition against smoking in public places to include any place of employment.

"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.

"We hold smoking is prohibited in the Post under the Act because it is a 'place of employment' and the prohibition, as applied to the Post, is constitutional," the 46-page decision said.

In a dissenting opinion, Justice Richard Sanders wrote that private facilities are excluded from the anti-smoking 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," 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," he added.

From Legal Newsline: Reach reporter Chris Rizo at chrisrizo@legalnewsline.com.

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