PLEASE SAVE FOR YOUR REFERENCE
SMOKING IN INDOOR PLACES OF EMPLOYMENT AND
- 8.37.010 Findings and Purpose.
- 8.37.020 Definitions.
- 8.37.030 Prohibition of Smoking in Indoor Public Places and Places
- 8.37.040 Exemptions to Smoking Prohibitions of 8.37.030.
- 8.37.050 New Construction and Change of Use.
- 8.37.060 Ashtrays.
- 8.37.070 Notification.
- 8.37.080 Enforcement.
- 8.37.090 Appeals.
- 8.37.100 Nonretaliation.
- 8.37.110 Violations and Penalties.
- 8.37.120 Public Education.
- 8.37.130 Other Applicable Laws.
8.37.010 Findings and Purpose
- Pursuant to Article II, Section 3 of Montana’s Constitution, all
persons have certain inalienable rights which include a
constitutional “right to a clean and healthful environment”. And
pursuant to Article IX, Section 1 of Montana’s Constitution, “the
state and each person shall maintain and improve a clean and
healthful environment in Montana for present and future
generations.” With respect to this right and correlating duty, it is
the intent of the City Council, the Board of County Commissioners,
and the City-County Health Board in enacting this health ordinance
to prescribe requirements concerning smoking tobacco in enclosed
public places and places of employment in order to provide for a
clean and healthful environment and to protect the health and safety
of the people of the city from exposure to smoke in environments not
under their control.
- The Missoula City Council, the Missoula Board of County
Commissioners, and the Missoula City-County Health Board hereby find
- Environmental tobacco smoke (ETS) has been categorized as a
known carcinogen by the United States Environmental Protection
Agency (EPA), and;
- Numerous scientific studies have determined that environmental
tobacco smoke is a major cause of indoor air pollution that
contains more than 40 known human carcinogens, numerous
suspected carcinogens, co-carcinogens, carbon monoxide, sulfur
dioxide, nitrous oxides, EPA-listed hazardous air pollutants,
cilia toxic agents, sub-micron sized particulate, and;
- The Surgeon General of the United States has declared that
smoking is the largest preventable cause of premature death and
disability in the United States; breathing environmental tobacco
smoke is a cause of disease, including lung cancer, in
- At special risk from environmental tobacco smoke are children,
elderly people, individuals with cardiovascular disease and
individuals with impaired respiratory function, including
asthmatics and those with obstructive airway disease, and;
- Health hazards induced by breathing secondhand smoke include
lung cancer, heart disease, respiratory infection, decreased
respiratory function and broncho-constriction, and;
- The National Institute for Occupational Safety and Health has
recommended that all preventable measures should be used to
minimize occupational exposure to environmental tobacco smoke,
- Employees working in enclosed spaces where smoking is present
have little or no control over the environment to which they are
exposed, yet are likely to suffer lengthy and repetitive
exposure to ETS.
- This health ordinance is jointly adopted by the Missoula
City-County Board of Health pursuant to 50-2-116 MCA and 7-4-4306
MCA; by the City of Missoula pursuant to 7-4-4306 MCA and the Board
of County Commissioners pursuant to 7-4-4306. The City Council, The
County Commissioners, and Board of Health find that:
- There are federal and state laws that minimally regulate
smoking and tobacco, but that those laws do not exclude local
government regulations that are consistent therewith, and;
- This chapter is consistent with federal and state laws, and is
not preempted by any such laws, and;
- The provisions of this Chapter protect the constitutional,
inalienable right of persons in the State of Montana, as set
forth in Article II, Section 3 of the Constitution of Montana,
to a clean and healthful environment and the right of those
people to seek their safety, health and happiness in all lawful
- The provisions of this Chapter are pursuant to the
correlative duty of the state and each person to maintain and
improve a clean and healthful environment as set forth in
Article IX Section 1 of the Montana Constitution, and;
- The Missoula City-County Health Board, in a resolution adopted
February 19, 1998, recognizes “environmental tobacco smoke as a
significant, preventable public health hazard” and seeks
“feasible and effective education and policy measures that may
be employed to reduce and prevent exposure to this prevalent
- The provisions of this Chapter are of particular importance
for protecting the health of persons working in or obtaining
goods and services in enclosed places in which they have little
or no control over the indoor environment.
The following words and phrases, whenever used in this health ordinance,
shall be construed as defined in this section:
- “Employee” means any person who is employed by any employer in the
consideration for direct or indirect monetary wages or profit.
- “Employer” means any person, partnership, corporation, including a
municipal corporation, or non-profit entity, who employs the
services of one or more individual persons.
- “Liquor license” means all beverages licenses, beer and wine
licenses, fraternal and resort licenses as defined in Title 16,
Chapter 4, MCA and shall exclude cabaret special permit and catering
locations as allowed by Montana law.
- “Indoor Public Place” or “Place of Employment ” means any indoor
“place, building, or conveyance to which the public has or may be
permitted to have access and any place of public resort” (MCA
16-1-106(18) or serving as a place of employment except enclosed
areas specifically excluded from being an enclosed public place or
place of employment by this ordinance.
- Examples of indoor public places and places of employment include,
but are not limited to:
Adult day care facility, Auditoriums, arenas and assembly and
meeting rooms open to the public, Banks, Break/Lunch rooms,
Child-care facility, Common areas in apartment buildings, trailer
courts, condominiums, retirement facilities, nursing homes and other
multiple-use residential facilities; Elevators; Educational
facilities; Facilities and nursing homes and other Multiple-use
residential facilities ; Galleries ; Hallways ; Health care
facilities; Laundromats ; Libraries ; Lobbies ; Meeting Rooms; Movie
theaters; Museums; Offices; Polling places ; Public transit
vehicles; Reception areas ; Restaurants; Retail and wholesale stores
; Schools ; Waiting rooms; Wards and semi-private rooms of health
facilities; Work Areas.
- The term “Indoor Public Place” or “Place of Employment” does
not include private residences including apartments and
condominiums, except during times used as a child-care, adult
day care or health-care facility, and individual hotel and motel
rooms. Family-owned and operated businesses with only related
employees, and offices of self-employed persons with only
related employees shall not be considered an “indoor public
place or place of employment” when the indoor space that they
occupy is not in the same building with other public places
subject to this regulation. A private residence remains exempt
from this provision when an employee of another business is
providing services in the private residence, such as, but not
limited to, housecleaning and home maintenance services.
- “Place of Employment” includes any enclosed area under the
control of a public or private employer which employees normally
frequent during the course of employment including, but not
limited to, work areas, employee lounges and restrooms,
conference and classrooms, employee cafeterias and hallways.
- Places of employment that meet the Missoula Municipal Code
definition of “residential accessory” (19.61.020 MMC) are
excluded from the definition of “indoor public places and places
- “Person” means an individual, partnership, corporation,
association, political subdivision, or other entity.
- “Retail Tobacco Store” means a retail store utilized primarily
for the sale of tobacco products and accessories and in which the
sale of other products is merely incidental.
- “Separately ventilated smoking room” means a tightly enclosed
space or room served by a ventilation system that is completely
separate from the ventilation system serving any area where smoking
is allowed and allows no air exchange from the smoking room to the
smoke-free area by maintaining the smoking room at an atmospheric
pressure less than the smoke-free areas or through another means
that allows no air exchange from the smoking room to the smoke-free
area and is approved by the City Building Inspector if inside the
zone of Building Inspector authority or the Health Department if
outside the zone of Building Inspector Authority.
- “Service Line” means any indoor line at which one (1) or more
persons are waiting for or receiving service of any kind, whether or
not such service involves the exchange of money.
- “Smoking” or “to smoke” includes the act of lighting, smoking or
carrying a lighted cigar, cigarette, or pipe.
- “Smoke-free” means that smoke or exchanged air from a smoking
permitted area or room does not enter the confines of an enclosed
- “New construction” means a newly-constructed indoor public place
or place of employment.
- “Truck stop” means an establishment that disburses food and fuel
to the public and has parking spaces for at least twenty (20)
8.37.030 Prohibition of Smoking in Indoor Public Places and Places
Smoking shall be prohibited in all indoor public places and places of
employment within the area of application of this ordinance except as
exempted in 8.37.040.
8.37.040 Exemptions to Smoking Prohibitions of 8.37.030
- Separately ventilated smoking rooms as required in 8.37.050.
- Private functions, parties, or gatherings not advertised or
accessible to the general public.
- Retail tobacco stores.
- Stage, drama or musical performances are exempted from smoking
restrictions when smoking is part of the production.
- Businesses that hold a liquor license as defined in 8.37.020 are
exempted in areas in the business primarily used for liquor service
and where food service is secondary. A business serving liquor
established at a location after the first effective date of this
ordinance must use a separately ventilated smoking room as provided
in 8.37.050 if the employer chooses to allow indoor smoking.
- Areas in truck stops used for liquor or food service, or as
truckers’ waiting lounges. A truck stop established at a location
after the first effective date of this ordinance must use a
separately ventilated smoking room as provided in 8.37.050 if the
employer chooses to allow indoor smoking.
8.37.050 New Construction and Change of Use
Indoor public places and places of employment newly constructed or
established as a result of a change of use of property after the earliest
effective date of this ordinance shall provide separate ventilation for
non-smoking and exempted smoking areas if the employer chooses to allow
smoking. Separately ventilated smoking areas must be constructed and
ventilated in a manner approved by the City Building Inspector or the
Missoula City-County Health Department as defined in 8.37.020(G).
All ashtrays shall be removed from within any area where smoking is
prohibited by this ordinance.
Ashtrays may be placed immediately outside of areas where smoking is
- The proprietor or manager of an establishment containing enclosed
public place or place of employment subject to Montana Code
Annotated Title 50, Chapter 40 shall post signs according to MCA
Title 50 Chapter 40.
- The proprietor or manager of an establishment containing an
enclosed public place or place or employment not subject to Montana
Code Annotated Title 50, Chapter 40 shall designate enclosed public
places and places of employment where smoking may not be allowed
with easily readable signs and shall also designate those areas
where smoking may be allowed pursuant to Missoula Municipal Code
8.37.040, A, B, C, E & F with easily readable signs.
- An owner, manager, operator, or designated employee of any
establishment regulated by this ordinance shall inform persons
violating this ordinance of the appropriate provisions thereof and
- Places of employment exempted in 8.37.040 A,B,C,E, and F and
choosing to allow smoking, shall notify all employees of exposure to
environmental tobacco smoke prior to hiring.
- Enforcement of this ordinance and public education shall be
implemented primarily by the Missoula City-County Health Department.
Other City Departments may be assigned enforcement responsibility at
the discretion of the mayor. A person requesting enforcement of this
ordinance shall do so by completing and signing a written complaint
form provided by the Health Department.
- Notice of the provisions set forth in this ordinance shall be
given to all applicants for a business license in the City of
Persons who are adversely affected by an administrative order arising
from this ordinance may initiate judicial review.
No person or employer shall discharge, refuse to hire, or in any manner
retaliate or discriminate against any employee, applicant for employment, or
customer because such person exercises any constitutional right to a clean
and healthful environment afforded by this ordinance. Any such
discrimination shall be cause for private civil action against the offending
party or parties.
8.37.110 Violations and Penaltie
- It shall be unlawful for any person who owns, manages, operates or
otherwise controls the use of any premises subject to regulation
under this ordinance to fail to comply with any of its provisions.
- It shall be unlawful for any person who owns, manages, operates
or otherwise controls the use of any premises subject to regulation
under this ordinance to serve any person who violates this ordinance
by smoking in an area where smoking is prohibited.
- It shall be unlawful for any person to smoke in any area where
smoking is prohibited by the provisions of this ordinance.
- Any person who violates any provision of this ordinance shall be
guilty of a misdemeanor offense punishable by a fine not exceeding
one hundred dollars ($100) for each violation of this ordinance.
Incarceration is not a penalty. Each day of violation is a separate
8.37.120 Public Education
- The Missoula City-County Health Department shall engage in a
continuing program to explain and clarify the purposes and
requirements of this ordinance to citizens affected by it, and to
guide owners, operators and managers in their compliance with it.
Such program may include publication of a brochure for affected
businesses and individuals explaining the provisions of this
ordinance, as well as group training and on-site visits with owners,
managers, and designated employees.
8.37.130 Other Applicable Laws
This ordinance shall not be interpreted or construed to permit smoking
where it is otherwise restricted by other applicable laws.
8.37.140 Area of Application and Effective Date
This ordinance shall be in effect in restaurants that do not have a
liquor license within one-hundred eighty (180) days (December 14, 1999); and
in all other enclosed public places and places of employment within ninety
(90) days (September 15, 1999) from and after its adoption by the City
Council and approval by the City-County Board of Health and County
Commissioners as provided for in MCA 7-4-4306. (approved June 17, 1999)
Passage of this ordinance shall cause the immediate repeal of Chapter
8.36, Smoking In Elevators, Missoula Municipal Code.
If any section, subsection, sentence, clause, phrase or word of this
ordinance is for any reason held to be invalid or unconstitutional, such
decision shall not affect the validity of the remaining portions of this
ordinance. The council hereby declares that it would have passed this
ordinance and each section, subsection, sentence, clause, phrase and words
thereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses, phrases or words have been declared invalid
or unconstitutional, and if for any reason this ordinance should be declared
invalid or unconstitutional, then the remaining ordinance provisions will be
in full force and effect.
some documents are in "Portable Document Format" and
requires Adobe Acrobat Reader to view. If you do not have
this viewer, visit