Thursday, August 29, 2002

Ohio ruling curbs bans on smoking

Health board powers limited

By Tim Bonfield,
The Cincinnati Enquirer

        In a ruling that shocked anti-tobacco activists and surprised public health officials, the Ohio Supreme Court ruled Wednesday that local health boards cannot ban smoking in public places.

        The court ruled 6-1 that unelected health boards can create regulations only when granted authority by an elected body, such as the state General Assembly or a city with home-rule lawmaking power. And such power to regulate tobacco use has not been granted, the court ruled.

        The ruling strikes down a regulation approved in June 2001 by the Toledo-Lucas County Board of Health that would have prohibited smoking in all indoor public places, including bars and restaurants.

        “There is no express grant of power in (state law) allowing local boards of health unfettered authority to promulgate any health regulation deemed necessary,” the court stated in a majority opinion written by Justice Andy Douglas. “Administrative regulations cannot dictate public policy but rather can only develop and administer policy already established by the General Assembly.”

        Justice Paul Pfeifer dissented without giving a reason.

        The ruling immediately raised several questions about its potential effects beyond Toledo.

        How would Cincinnati's own smoking regulations, passed by the city Board of Health in 1985, be affected? Would a total smoking ban in Meigs County, Ohio, become invalid? Would this decision in Ohio have any impact on anti-smoking movements in other states?

        For many years, health boards have regulated everything from rat control to restaurant food handling to whether people should be quarantined in the event of an epidemic or bioterror attack.

        “I was quite surprised by the ruling,” said Cincinnati health commissioner Malcolm Adcock, who also is president of the Association of Ohio Health Commissioners. “All of us in health departments have read the law for years to say that in matters of public health, local health boards could pass regulations. What this calls into question is whether local boards of health have the authority to pass any regulations at all.”

        Louis Tosi, lead attorney for the 27 businesses challenging the Toledo smoking ban, disagreed. State law expressly grants power to local health boards to take emergency public health measures, regulate food services, inspect swimming pools, and many other functions. Those powers would not be affected by Wednesday's ruling, he said.

        This ruling does fly against national trends toward tougher smoking regulations in public places.

        In California, a state law bans smoking in bars and restaurants. New York City is considering similar regulation. In Florida, the American Lung Association and other anti-smoking groups are spending millions to promote a ballot initiative that would ban smoking in public places.


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