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Totem Beverages, Inc. v. Great Falls-Cascade County City-County Board of Health

Supreme Court of Montana

November 19, 2019

TOTEM BEVERAGES, INC., d/b/a The Do Bar, Plaintiff, Appellee, and Cross-Appellant,
GREAT FALLS-CASCADE COUNTY CITY-COUNTY BOARD OF HEALTH, Defendant and Appellant, and Cross-Appellee.

          Submitted on Briefs: July 17, 2019

          APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADV 16-0112 Honorable Robert G. Olson, Presiding Judge

          For Appellant: William O. Bronson, William O. Bronson, PLLC, Great Falls, Montana, Joshua A. Racki, Cascade County Attorney, Carey Ann Haight, Charity Nicole Yonker, Deputy County Attorneys, Great Falls, Montana

          For Appellee: Gregory G. Smith, Stephanie A. Oblander, Smith Oblander & Meade, P.C., Great Falls, Montana



         ¶1 The Great Falls/Cascade County City-County Board of Health (Board) appeals from the entry of summary judgment in favor of Totem Beverages, Inc. (Totem), challenging the District Court's determination that a Board regulation was invalid. Totem cross-appeals, challenging the District Court's denial of attorney fees and its determination not to reach Totem's selective enforcement claim. We reverse in part, and remand for further proceedings.

         1. Did the District Court err by granting summary judgment to Totem on the validity of the Regulation?

         2. Did the District Court err by dismissing Totem's selective enforcement claim?

         3. Did the District Court abuse its discretion by denying Totem's request for attorney fees?


         ¶2 This case arises from actions that followed our decision in MC, Inc. v. Cascade City-County Bd. of Health, 2015 MT 52, 378 Mont. 267, 343 P.3d 1208.

         ¶3 In 1979, the Montana Legislature enacted the Montana Clean Indoor Air Act (MCIAA, or Act), §§ 50-40-101 to -120, MCA. The MCIAA prohibits smoking in an "enclosed public place," § 50-40-104(1), MCA, which is defined as "an indoor area, room, or vehicle that the general public is allowed to enter or that serves as a place of work . . . ." Section 50-40-103(3), MCA. In turn, "place of work" is defined as "an enclosed room where one or more individuals work." Section 50-40-103(7), MCA. Pursuant to § 50-40-110, MCA, the Department of Health and Human Services (Department) promulgated Admin. R. M. 37.113.101(2) (2019), which provides a definition of "enclosed room" for purposes of the term "place of work" within § 50-40-103(7), MCA; MC, Inc., ¶ 23. The Rule defines "enclosed room" as "an area with a wall on all sides reaching from floor to ceiling, exclusive of windows and doors, and does not include an area completely or partially open to the outside air such as a roofed shelter."

         ¶4 The MCIAA provides that "[t]he provisions of this part must be supervised and enforced by the department and the department's designees, [and] local boards of health . . . ." Section 50-40-108, MCA. The Board is a "city-county board of health" organized pursuant to § 50-2-106(1), MCA. Local boards of health may adopt regulations that do not conflict with regulations adopted by the Department "to implement the public health laws." Section 50-2-116(2)(c)(vi), MCA.

         ¶5 In June 2015, the Board adopted a regulation titled "Cascade City-County Board of Health Regulation Re: Montana Clean Indoor Air Act and Smoking Shelters" (Regulation). The Regulation was adopted in response to cited concerns expressed to the Department and the Board, and was intended to provide "additional clarity" regarding smoking shelters, a type of which had been declared to be "enclosed public spaces . . . subject to the MCIAA's prohibition on smoking" by this Court, in MC, Inc., ¶ 30. The Regulation defined permissible smoking shelters, that is, not subject to the smoking prohibition, as either "unenclosed standalone shelter[s]" or "unenclosed shelter[s]" that met certain criteria, including a permanent opening that was no less than 20% of the entire square footage of the vertical plane forming the shelter's interior, and did not reduce airflow. Prior to adoption of the Regulation, the Board sent a letter to bar and tavern operators in Cascade County, stating, "[t]he enclosed photos are existing structures here in Great Falls, that the [Board] has found to be in total compliance with the MT MCIAA, and as such there would be no need for any enforcement action by the [Board] on these structures." Some of the structures in the photos did not comply with the requirements of the subsequently adopted Regulation.

         ¶6 Totem is a Montana corporation and operates The Do Bar in Great Falls. It is undisputed that the MCIAA applies to The Do Bar. Section 50-40-103(3)(h), MCA; see also MC, Inc. The Do Bar includes two areas on its premises where smoking has been allowed in the past: the former smoking shelter attached to the Casino Room that was at issue in MC, Inc., ¶ 19, now a non-smoking area; and a partially roofed outdoor "patio," which is the subject of the underlying litigation in this case.

         ¶7 Between November 2012 and March 2014, the Board conducted permitting and inspection activities at The Do Bar, including food establishment inspections on December 15, 2012, August 22, 2013, May 15, 2014, and May 20, 2014; and renovation inspections between spring 2013 and March 2014. During one inspection, a Board official photographed The Do Bar's patio area. However, the Regulation had not yet been adopted, and the Bar was not then cited for any violations of the MCIAA.

         ¶8 On January 26, 2016, Totem was served with a Notice and Order for Immediate Abatement (Notice) from the Board, citing alleged violations of the Regulation adopted in June 2015. The Notice was issued after the Board completed an inspection on The Do Bar's premises to determine Totem's compliance with the Regulation. The Notice stated that smoking was taking place within "an enclosed public place" of the Bar, and ordered the Bar to "immediately cease and desist with all activities which allow, encourage and/or permit active smoking within The Do Bar." Totem initiated this action, seeking injunctive and declaratory relief. Totem also sought issuance of a preliminary injunction, which the District Court denied. Both parties filed motions for summary judgment. The District Court granted Totem's motion and denied the Board's, concluding the Regulation conflicted with the MCIAA and DPHHS rules in violation of § 50-2-116(2)(c)(vi), MCA, and was therefore void. The District Court declined to rule on Totem's selective enforcement claim, reasoning the issue was effectively mooted by its ruling that invalidated the Regulation. Totem sought attorney fees under §§ 27-8-313 and 25-10-711, MCA, but the District Court denied the request, reasoning the Board's arguments had facial merit.

         ¶9 The Board appeals the order granting summary judgment to Totem on the validity of the Regulation. Totem cross-appeals, challenging the District Court's determination to not reach its selective enforcement claim, and the ...

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