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AGO 1979 No. 20 - November 29, 1979
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- HEALTH ‑- CRIMES ‑- ENFORCEMENT OF REGULATIONS RESTRICTING SMOKING IN PUBLIC PLACES

(1) RCW 43.20.050 does not require all state, county, city or township officers or employees to "enforce" the provisions of chapter 248-152 WAC restricting smoking in public places or be subject to criminal penalties for their failure to do so; instead, that statute only applies to those particular officers or employees who, by virtue of their offices or positions, are possessed of the legal authority to take some form of legal action against alleged violators of the regulations.(2) Although RCW 43.20.170 authorizes the director of Social and Health Services to utilize any of the special proceedings provided for in Title 7 RCW in enforcing State Board of Health regulations, except for a suit for injunctive relief under chapter 7.40 RCW, most of those special proceedings have little or no utility in that connection.

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                                                               November 29, 1979

Honorable Georgette Valle
State Rep., 31st District
1434 S.W. 137th
Seattle, Washington 98166

                                                                                                                 Cite as:  AGO 1979 No. 20

Dear Representative Valle:

            By letter previously acknowledged, you posed two questions relating to the enforcement of chapter 248-152 WAC which restricts smoking in public places.  We paraphrase those questions as follows:

            (1) Does RCW 43.20.050 truly require that all officers or employees of the State or any county, city or township thereof enforce the provisions of chapter 248-152 WAC or be subject to the penalties set out therein?

             [[Orig. Op. Page 2]]

            (2) Other than an action for injunctive relief, what legal actions may be brought, under RCW 43.20.170 and 43.20.190, to enforce the regulations contained in chapter 248-152 WAC?

            We answer your first question in the negative and respond to your second question in the manner set forth in our analysis.

                                                                     ANALYSIS

            Chapter 248-152 WAC codifies a set of regulations relating to the smoking of tobacco in certain public places.  Those regulations were adopted by the State Board of Health in 1975 under the authority of RCW 43.20.050. Assuming that such places are open to and used by the public, the regulations prohibit smoking in elevators, conveyances for public mass transportation, highways, museums, concert halls, theaters and similar indoor facilities for public recreation, indoor sports arenas, hallways and waiting rooms of health care facilities, office reception areas and waiting rooms, the public areas of retail stores and financial institutions, school classrooms and lecture halls, and, finally, any rooms in which meetings open to the public are held.  WAC 248-152-030.  In addition, the regulations require that signs prohibiting smoking be conspicuously posted ". . . in every room, building, or other place where smoking is prohibited by this chapter, . . ." WAC 248-152-040.

            The regulations, however, prescribe no penalty, criminal or civil, for the violation thereof.  Moreover, an examination of the applicable statutes reveals that a violation of those, or any other regulations adopted by the State Board of Health under RCW 43.20.050,supra. is nowhere stated to be a crime.  Instead, under the heading "enforcement," the regulations themselves, in WAC 248-152-050, provide as follows:

            "Due to the limitations inherent in the means provided by state law for enforcing any health regulation of the state board of health, the enforcement and effectiveness of this regulation must also depend on the willingness of the general public to abide by its provisions and to request others to do so.

            "(1) Complaints of violations of this chapter shall be made to the owner, operator, manager  [[Orig. Op. Page 3]] or other person having control over any room, building or other place where smoking is prohibited by this chapter.  This person shall then notify the violator of the applicability of this regulation.

            "(2) Complaints of violations of this chapter shall also be made by the complainant to the state board of health, P.O. Box 1788, Mail Stop 1-2, Olympia, Washington 98504."

            Under RCW 43.20.170, to which further reference will be made in our response to your second question, the "director" (i.e., now, the secretary of the Department of Social and Health Services)1/ is authorized to,

            ". . . bring an action to enjoin a violation or the threatened violation of any of the provisions of the public health laws of this state or any rules or regulation made by the state board of health or the health department pursuant to said laws, or may bring any legal proceeding authorized by law, including but not limited to the special proceedings authorized in Title 7 RCW, in the superior court in the county in which such violation occurs or is about to occur, or in the superior court of Thurston county."

            In addition, RCW 43.20.190, also referred to in your second question, provides that:

            "(1) It shall be the duty of each assistant attorney general, prosecuting attorney, or city attorney to whom the director reports any violation of this chapter, or regulations promulgated under it, to cause appropriate proceedings to be instituted in the proper courts, without delay, and to be duly prosecuted as prescribed by law.

            "(2) Before any violation of this chapter is reported by the director to the prosecuting attorney for the institution of a criminal proceeding, the person against whom such  [[Orig. Op. Page 4]] proceeding is contemplated shall be given appropriate notice and an opportunity to present his views to the director, either orally or in writing, with regard to such contemplated proceeding."

            And finally, RCW 43.20.050 itself (the statute under which chapter 248-152 WAC was promulgated) provides, in material part, as follows:

            ". . .

            "All local boards of health, health authorities and officials, officers of state institutions, police officers, sheriffs, constables, and all other officers and employees of the state, or any county, city, or township thereof, shall enforce all rules and regulations adopted by the state board of health.  In the event of failure or refusal on the part of any member of such boards or any other official or person mentioned in this section to so act, he shall be subject to a fine of not less than fifty dollars, upon first conviction, and not less than one hundred dollars upon second conviction.

            ". . ."

            Question (1):

            Your first question, repeated for ease of reference, asks whether this last quoted provision truly requires all officers and employees of the State, or of any county, city, or township, to "enforce" chapter 248-152 WAC or be subject to the criminal penalties set forth in the statute.  Read in isolation we can readily understand how the language of RCW 43.20.050,supra, might appear to require an affirmative answer to that question.  After all that is what the statute, on its face, seems to say.

            At the same time, however, since this portion of RCW 43.20.050 then imposes criminal penalties on those who fail or refuse to enforce a rule or regulation adopted by the  [[Orig. Op. Page 5]] State Board of Health, the well-established principle that penal statutes are to be strictly construed comes into play.  Under that rule penal statutes are to be strictly construed to the end that offenses not entitled to be included shall not be prosecuted.  State v. Larson, 119 Wash. 123, 204 P.2d 1041 (1922).  Accordingly, all doubts regarding the true meaning of such a statute are to be resolved against the State and in favor of the accused.  State v. Thompson, 38 Wn.2d 774, 232 P.2d 87 (1951).

            Another principle which bears, significantly, upon the question is the well-established rule that public officers or employees, as such, have only thosepowers which have been granted to them by law, either expressly or by necessary implication.  See,e.g.,State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952) andPacific First Federal Savings and Loan Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947).  Thus, in this instance, the secretary of the Department of Social and Health Services is authorized, by RCW 43.20.170, supra, to initiate a civil (but not a criminal) action to enforce such rules and regulations (like chapter 248-152 WAC) as have been adopted by the State Board of Health and/or to report any such violations to the Attorney General's Office, a prosecuting attorney or a city attorney for action by them under RCW 43.20.190,supra.  And that latter statute, in turn, qualifiedly2/ makes it the duty of ". . . each assistant attorney general, prosecuting attorney, or city attorney . . ." to whom such a violation has been reported by the secretary ". . . to cause appropriate proceedings to be instituted in the proper courts, . . ."  But, otherwise, particularly noting (again) that a violation of chapter 248-152 WAC does not, itself, constitute a crime, we have found [[Orig. Op. Page 6]] no other statutes under which any other state, county, city or town officers or employees may be said to have the legal authority either to apprehend a person who they see smoking in a public place in apparent violation of the regulations or to initiate any sort of legal action against those persons.

            With that in mind let us note yet another applicable principle of statutory construction.  As was stated by the court in In Re Horse Heaven Irrigation Dist., 11 Wn.2d 218, 226, 118 P.2d 972 (1941):

            "The courts, in pursuance of the general object of giving effect to the intention of the legislature, are not controlled by the literal meaning of the language of the statute, but the spirit or intention of the law prevails over the letter thereof. . . .

            ". . .

            "It is a rule of such universal application as to need no citation of sustaining authority that no construction should be given to a statute which leads to gross injustice or absurdity."

            See also,Wilson v. Lund, 74 Wn.2d 945, 947, 447 P.2d (1968) and Lenci v. Seattle, 63 Wn.2d 664, 388 P.2d 926 (1964).

            It would, however, be must incongruous and unjust to attribute to the legislature an intention to require a state or municipal officer or employee, under threat of criminal penalty, to do something which that officer or employee has no legal authority to do.  For example you, as a member of the state legislature, are presumably a "state official" within the meaning of RCW 43.20.050, supra.  But as a state legislator you have no legal authority to arrest somebody you see smoking in public (if for no other reason than that even a citizen's arrest will not lie in such a case because the conduct does not constitute a crime) or to file charges in court against that person.  Therefore, it would be absurd to say that you, yourself, would be guilty of a crime for failing to "enforce" the State Board of Health regulation.

In summary, we therefore answer your first question in the negative.  RCW 43.20.050 doesnot require all state, county, city or township officers or employees to "enforce" chapter 248-152 WAC, supra, or be subject to criminal penalties for  [[Orig. Op. Page 7]] their failure to do so.  Instead, that statute only applies to those particular officers or employees who, by virtue of their offices or positions, are possessed of the legal authority to take some form of legal action against alleged violators of the regulations.

Question (2):

Your second question, repeated for ease of reference, asks:

            Other than an action for injunctive relief, what legal actions may be brought, under RCW 43.20.170 and 43.20.190, to enforce the regulations contained in chapter 248-152 WAC?

            Once again, RCW 43.20.170 provides that:

            "The director may bring an action to enjoin a violation or the threatened violation of any of the provisions of the public health laws of this state or any rules or regulation made by the state board of health or the health department pursuant to said laws, or may bring any legal proceeding authorized by law, including but not limited to the special proceedings authorized in Title 7 RCW, in the superior court in the county in which such violation occurs or is about to occur, or in the superior court of Thurston county."

            One of the forms of action provided for in Title 7 RCW is a civil suit for injunctive relief.  See, chapter 7.40 RCW.  An injunction, basically, is a court order prohibiting or restraining action.  There are, in addition, nearly 20 other "special proceedings and actions" provided for in Title 7 RCW including arbitration, attachment, certiorari, mandamus and prohibition, ejectment, garnishment, habeaus corpus, partition, quo warranto, and replevin.  All of those have their uses in given situations and, under the literal language of RCW 43.20.170,supra, are theoretically available in the enforcement of State Board of Health regulations.  As a practical matter, however, other than the possibility of using a petition for a writ of mandamus to compel compliance by a public official having ministerial functions to perform, we do not see how most or all of those other forms of action would be of much use in enforcing the provisions of chapter 248-152 WAC, supra.

             [[Orig. Op. Page 8]]

What all of the foregoing leads one to, it seems to us, is simply a better understanding of the practical legal limitations on enforcement which caused the State Board of Health, in adopting this particular set of regulations, to include there in the provisions of WAC 248-152-050, supra.  As noted above, that section of the regulations begins with the phrase "due to the limitations inherent in the means provided by state law for enforcing any health regulations of the state board of health, . . ."

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See RCW 43.20A.030 and RCW 43.20A.120.

2/Note, however, subsection (2) of RCW 43.20.190 which (once again) provides that:

            "(2) Before any violation of this chapter is reported by the director to the prosecuting attorney for the institution of a criminal proceeding, the person against whom such proceeding is contemplated shall be given appropriate notice and an opportunity to present his views to the director, either orally or in writing, with regard to such contemplated proceeding."

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