Fighting for their right to light up



After watching their comrades make the ultimate sacrifice for peace and freedom on battlefields around the world, members of Bremerton’s American Legion Post No. 149 are fighting another battle on the homefront.

However, this time it’s not with artillery pieces and rifles, it’s with lawyers, judges and other legal experts as post members are seeking an exemption to the state’s indoor smoking ban and the case was heard by the Washington state Supreme Court on Nov. 6. A ruling is expected in the coming weeks.

The court battle began on July 27, 2006 when the post filed suit against the Kitsap County Health District over its cease and desist order against the post banning indoor smoking in the post’s Kitsap Way facility in Thurston County Superior Court.

The superior court ruled in favor of the health district on Jan. 26, 2007 and less than a month later, the post notified the court of its intention to appeal to the state Supreme Court.

In a reply brief to the state Supreme Court, Olympia attorney Shawn Newman, who is representing the post, outlined the argument for allowing smoking in the post’s facility.

“The law prohibits smoking in designated ‘public places’ that are also places of employment. Respondents concede that the Post Home is a ‘private facility,’ not a public place,” Newman wrote. “The law expressly exempts ‘private facilities’ from ‘this chapter.’”

The “private workplace” exemption is consistent with the “private facility” exemption and the title of the Act “Smoking in Public Places,” Newman wrote.

“Nevertheless, the Respondents argue that the exemption for ‘private workplaces,’ does not apply to ‘private facilities’ and, in any case, the exemption is trumped by the definition of ‘place of employment,’” he continued.

Post members are also asking the state Supreme Court to infer the hotel/motel room exemption also applies to “place of employment” as if those hotel/motel rooms were “private facilities” exempt from “this chapter,” he wrote.

“The Post has standing as a member-owned organization,” he stated. “The Respondents’ arbitrary application of the law to prohibit smoking anywhere at the member-owned Post Home impinges of fundamental rights.”

In conclusion, Newman wrote that “This case comes down to one of statutory interpretation and application.”

In the response for the Washington State Health Department and the Kitsap County Health District, state Attorney General Rob McKenna’s office wrote that “Two issues are before the court in this appeal: 1) whether the ‘place of employment’ smoking prohibition (RCW 70.160.030) added by Initiative 901 is applicable to the Post; and 2) whether, under the proper review, the ‘place of employment’ smoking prohibition violates the Washington or United States Constitution for any of the many reasons suggested by the Post.”

The Court should “reject all of the Post’s arguments and affirm the Superior Court,” McKenna’s office continued.

The court should consider the intent of the initiative “as the average informed voter voting on the initiative would read it,” McKenna’s office wrote.

“The exception for ‘private facilities’ does not apply to an employer such as the Post,” the response continued.

Also the post is not a “private enclosed workplace,” McKenna’s office wrote, citing RCW 70.160.060.

McKenna’s office cited the numerous times where the state’s indoor smoking ban is very specific in its wording and that in general the post’s suit does not have any merit based upon that wording.

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