A Missoula judge said she would issue a decision soon after hearing arguments Friday about whether a cigar club in downtown Missoula runs afoul of the Montana Clean Indoor Air Act.
Both sides in the lawsuit filed last year between the Missoula City-County Board of Health and Calumet — the company that runs the Fools' End Club — had asked District Court Judge Leslie Halligan to rule in their favor in the case.
Attorneys for the county on Friday laid out the argument to the judge that Fools' End is an “enclosed public place,” which under the state law means it cannot allow indoor smoking.
But Gregory McDonnell, the attorney representing Fools' End, said the only people allowed in the club are paying members and their guests, who know when they step inside that the location is used for smoking. That situation means the club should be looked at as a private space under the law.
“If my home is private, and I invite a guest in, my home doesn’t become public,” McDonnell said. “The folks that go into the club go in there to smoke cigars.”
The decision over how the state law will be applied will likely also hinge on whether the cigar club, which sits in a building underneath a space previously occupied by the Families First Children’s Museum, should be considered its own discrete unit or if the building should be taken as a whole in the eyes of the law.
In December the children’s museum closed up shop following what its executive director called concerns over a growing issue of tobacco smoke in the building.
Testing later confirmed the presence of tobacco smoke in the museum space, court records and museum officials said.
This spring, the museum, which had not reopened, announced plans to move to a new location across town. Deputy County Attorney Matt Jennings said in court Friday that despite the upper floor being vacated, that didn’t change the legal argument of whether the club was violating the state law on indoor smoking.
Through its attorneys, the Fools' End contends that despite being in the same building it should be looked at as a separate space from the museum above it because it has its own entrance, HVAC system and other characteristics.
“The Fools' End is not a separate enclosure when the smoke from the club penetrates the children’s museum,” he wrote in court filings.
Any other interpretation, Jennings concluded, would create a “freight train- sized loophole” in the law that “can and will be replicated" by anyone walling off a section of an otherwise public place, selling memberships and calling it a private smoking room.
“Calumet’s entire creation was designed to evade the (Montana Clean Indoor Air Act) by clever semantics … in an attempt to distinguish itself from the clear statutory intent to prohibit smoking in a building,” Jennings wrote.
The club’s attorneys also cast doubt on the validity of the complaints about the smoke smell that led to the children’s museum ceasing operations and the health board filings its lawsuit, contending there was a “deliberate and concerted effort” between the museum and health board to “neutralize” Fools' End.
Due to some vague language in the law, the discussion in court Friday trailed off into what the exact definition of terms like area, office building and place of work actually mean. Jennings told Halligan that partly because the Montana Clean Indoor Air Act appears to not have been challenged in court, she would need to “break new ground” in interpreting how to apply it.
For example, the Clean Indoor Air Act specifies that smoking is forbidden in any office building, even if it's private. Attorneys for the health board brought up the fact that the children's museum had some of its offices in the part of the building above the cigar club.
But McDonnell said when the lawsuit was originally filed, those offices were in an adjacent unit in the building not directly above the club, were only moved there during a remodel last year, and that even if they did exist, it didn’t meet the legal definition.
“Just having an office inside of a structure doesn’t make it an office building,” he told Halligan.
Similarly the county attorneys contended that because members clean up after themselves, including sweeping; or meet clients and discuss business matters, the club should be considered a “place of work” similarly barring smoking under state law.
McDonnell said the clients aren’t paid and that if that was all that was required to meet the term “place of work,” then every restaurant where lunch meetings happen in Missoula would also fit the bill.