WSR 07-19-050


[ Filed September 14, 2007, 10:12 a.m. ]


RCW 34.05.330(3)

Pursuant to RCW 34.05.330(3), you are hereby notified for publication in the Washington State Register that:

On July 30, 2007, the Governor's Office received an appeal from Mr. Robert W. Haller relating to the University of Washington Board of Regent's denial of a petition to repeal or amend WAC 478-136-035. The appeal was denied on September 7, 2007.

September 11, 2007

Richard E. Mitchell

General Counsel to the Governor

September 7, 2007

Robert W. Haller

P.O. Box 237

Gig Harbor, WA 98335

Re: Administrative Rule Appeal - WAC 478-136-035

Dear Mr. Haller:

Thank you for your letter dated July 27, 2007, concerning the above-referenced rule. It was received by the Governor's Office on July 30, 2007, two days after the statutory due date of July 28. Technically, under the Administrative Procedure Act, it is untimely and cannot be considered by the Governor.

Nonetheless, the Governor strongly supports the University of Washington Board of Regents' decision to protect the public and its employees from exposure to secondhand smoke. The health effects of secondhand smoke are well documented. In September 2006, the Centers for Disease Control and Prevention reported that secondhand smoke exposure increases the risk of heart disease and lung cancer in non-smokers by 25-30 percent and is dangerous even after brief exposure. The Governor has long been committed to tobacco control and prevention and supports efforts by organizations to further protect the public from its harmful effects.

Please note that nothing in RCW 70.160 grants smokers the affirmative right to smoke in any particular location. This absence of an affirmative right combined with the University of Washington Regent's right as "owners" of the University to limit smoking more broadly than the minimum distances required by RCW 70.160, lead to one legal conclusion. The Regents have the legal right to regulate smoking on the campus, so long as they do not allow smoking in areas prohibited by RCW 70.160, and even if such regulations are more stringent than RCW 70.160.

Since your petition is untimely, the Governor lacks jurisdiction to either grant or deny it. However, given the clarity of the legal authority of the university, had your appeal been timely, the Governor would have likely denied it. Notwithstanding this, the Governor appreciates your expression of concern about the efficacy of WAC 478-136-035.


Richard E. Mitchell

General Counsel

Washington State Code Reviser's Office