Island County may be taking legal action against a downtown Oak Harbor nightclub over alleged violations of the state law banning smoking in public places, according to the health department.

Keith Higman, the director of the county health department, got permission from the board of county commissioners last week to work with the county prosecutor on the matter involving the Element nightclub. He said the county may seek a civil penalty and an injunction.

In a phone interview, Higman explained that the health department has been dealing with violations of the smoking ban at Element nightclub since the summer of 2008. Health officials tried “passive enforcement,” with warning letters and education. Higman said he even took the unusual step of meeting with the owner, Mike Kummerfeldt, to resolve the issue.

“Our goal here is that they comply, not that they are punished,” Higman said.

“We typically are successful in that course of enforcement action before we ever threaten to bring lawyers to the table,” he added.

Higman thought the problem was solved until the department again received complaints of people smoking inside the Element. He said staff members investigated and found that patrons were indeed smoking in the club.

“We have visually seen people smoking in the building,” Higman said.

But Kummerfeldt said that’s just not true.

“That is 100 percent false. No one is smoking inside,” he said.

In addition, Kummerfeldt said he wasn’t aware of any allegations of smoking in his nightclub.

“If they would like to talk to me, come on down. We have nothing to hide,” he said, referring to health department personnel.

Yet Higman said the health department’s effort to work with Kummerfeldt haven’t been successful, so it may be time to move toward more active enforcement. The process, he explained, is that health department staff will meet with an attorney from the prosecutor’s office. The prosecutor may recommend more passive enforcement or possibly legal action in court.

One possible avenue is for the prosecutor to ask a superior court judge to impose an injunction on the Element, which would basically be a court order barring smoking on the premises. A violation of the injunction could result in a serious penalty.

Also, Higman said the prosecutor could seek a civil penalty against Kummerfeldt, with or without the injunction.

In 2005, voters passed the initiative that prohibits smoking in all public places and workplaces in the state, including restaurants and bars.