By Martin Kidston/Missoula Current

Complaints of cigar odor and possible second-hand smoke have prompted the Missoula City-County Health Department to file litigation against a private downtown social club in a case that may test a portion of the state's Clean Indoor Air Act.

The issue stems from complaints from patrons and staff at the Missoula Children's Museum, which shares the same building as the Fool's End Club, a private cigar venue located at 225 W. Front St.

While the club is private, the Health Department contends that it still qualifies as an enclosed public space because it shares walls with other public venues. The club, however, contends that it's a private space and, therefore, it doesn't fall under the Clean Indoor Air Act.

“In looking at the Clean Indoor Air Act, we believe that it qualifies as an enclosed public space,” said Shannon Therriault, the environmental health director at the Health Department. “The reason (the act) talks about a whole building instead of a single office is because it's hard to prohibit smoke intrusion to other parts of the building that have the same ventilation system.”

The Fool's End Club opened last September and serves as a private social venue for cigar and pipe smokers. It's located in a former storage area in the lower part of the building. The Children's Museum sits above the club and has been there for several years.

While efforts have been made to resolve the issue, Therriault said, they have been unsuccessful. As a result, the Health Board this week voted to litigate the issue in what's believed to be the first test of a private cigar club under the state's Clean Indoor Air Act.

The Health Department is also filing a public nuisance complaint.

“Because it's an enclosed public space, our board is asking the court for declaratory judgment as to whether that qualifies as an enclosed public space under the Indoor Air Act,” said Therriault. “If it does qualify, we asked the judge to make them stop smoking in there. This is creating a public nuisance because of the effect that it's having on other occupants of the building, especially the Children's Museum.”

Donald Gaumer, a representative of the club, said the club's backers met with the landlord and the adjacent tenant prior to signing the lease to discuss any potential issues that might arise from the business.

Gaumer said extra precautions were taken in designing and constructing the space to ensure that its use as a cigar and pipe venue would not cause problems for the adjacent tenant. That included crack-sealing primer, extra paint, a negative pressure air-removal system, and the isolation of air vents.

The club's attorneys have been in contact with the Missoula County Attorney's Office, Gaumer said.

“These discussions both affirmed the club's belief that it was in compliance with the law and that any issues with the adjacent tenant could be resolved through communication,” said Gaumer. “These communications also led the club to procure two additional smoke filtering devices, which now await installation.”

Gaumer accused the Health Department of soliciting complaints against the club, though the county's log shows 12 complaints through January regarding the smell of smoke.

In a letter to the Health Board, he said the complaints are “riddled with inaccuracies and hyperbole.” He said cigarette smoking is forbidden in the club.

“Fool's End was created after careful consideration of the Clean Indoor Air Act, Missoula city ordinance, and a comprehensive legal analysis,” Gaumer said. “We abide by the law and take many precautions to ensure this is the case. We also have tried to be considerate of our neighbors.”

While the club maintains that it's in compliance with the law, the Health Department disagrees and is asking the court to resolve the dispute. The act was established in 2005, though bars had until 2009 to comply.

“This is the first time a private cigar club issue has come up, not just in Missoula but across the state,” Therriault said. “The Clean Indoor Air Act doesn't allow smoking in an enclosed public space, and as part of its intent, it recognizes the right of nonsmokers to breathe smoke-free air.”

Contact reporter Martin Kidston at