U.S. District Judge James Carr's strongly worded opinion denying bar and bowling alley owners' a preliminary injunction against the enforcement of Toledo's anti-smoking ordinance should settle the matter forever.
Likely it won't, though. Rather than an appeal, the plaintiffs would be better off joining forces with the anti-smoking majority in this city and this state to effect a statewide anti-smoking law.
Judge Carr shot down the foolish claim that the anti-smoking ordinance amounted to a taking of private property without compensation and correctly labeled the issue what it is, a serious public-health problem that public officials have the duty to resolve.
Because the anti-smoking adversaries took this bizarre tack, they did not try to refute testimony of Dr. James Price, a professor of public health. He said that, on average, one nonsmoking Toledoan dies each week of heart or lung ailments related to exposure to secondhand smoke.
The imposition of a preliminary injunction requires the likelihood of success of any case on its merits and must also consider whether those seeking relief will suffer irreparably without it, whether an injunction will harm others substantially, and whether the public interest would be served by it.
Judge Carr said the smoking crowd's case wouldn't succeed and that an injunction would harm others and not serve the public interest.
The ordinance may adversely affect some businesses, the judge allowed, by diminishing profits or forcing closures. But, he noted, smoking has been a matter of concern for 50 years during which time both the city and the state have restricted it in public places. People who invested in businesses dependent on smokers had ample warning of what lay ahead, he said.
Needless to say, those who would sacrifice the health of workers and patrons to make a buck can't give it up. They should forget an appeal. It is surprising that an attorney of Richard Kerger's prominence and acumen is associated with this lot. He would do them no good advancing an appeal that is not only unlikely to succeed but is against his own best interests as a citizen subject to the perils of secondhand smoke.
In the end numbers count. Toledo, a city where about 30 percent of the population smokes, is also a city where 70 percent doesn't. Majority rules, especially when it is right.
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