Legal battles forecast if Ohio OKs smoking ban

10/21/2005

COLUMBUS - Three weeks before petitions are to be filed to force a statewide ban on smoking in public places, advocates yesterday received free legal advice for inevitable court fights ahead.

Ironically, that advice is being funded by the tobacco industry via Ohio's $10 billion share of the national tobacco settlement.

"If you're doing [a Clean Indoor Air Act] and you haven't been sued yet, you're not doing it right," Christina Mickey, of the Smoke-Free Initiative of West Virginia, told a crowd at the first conference sponsored by the new Tobacco Public Policy Center.

The center, based at Capital University Law School in Columbus, is slated to receive a total of $900,000 in grants over three years from the Ohio Tobacco Use Prevention and Control Foundation.

Under the national settlement reached in 1998, five major tobacco companies agreed to pay $206 billion over 25 years to compensate 46 states for the cost of treating illnesses related to smoking. In 2000, the Ohio General Assembly created the Tobacco Use Prevention and Control Foundation, which uses settlement money to help reduce tobacco use, emphasizing youth, minorities, and pregnant women.

The statewide ban effort, spearheaded by organizations such as the American Cancer Society, plans to file at least 96,780 signatures, equal to 3 percent of the votes cast in the 2002 gubernatorial election, on Nov. 17, coinciding with the Great American Smokeout.

If the petitions are certified by Secretary of State Ken Blackwell, lawmakers would have four months to act. Petitioners also have the option of gathering another 96,870 signatures to put the question directly to voters in November 2006.

Approval would make Ohio the first Midwest state to ban smoking in all indoor places, including bars and restaurants, going further than Toledo's ban.

Given the history in cities such as Toledo and Columbus, aggressive court challenges are likely with smokers, bars, restaurants, hotels, bowling alleys, or cigarette retailers who may feel their rights or livelihoods will go up in smoke.

"If you don't want to be in a nonsmoke-free environment, don't go there," said Michael Oker, owner of the Traffic Night Club in Cleveland's warehouse district. "Don't take my business that I put over $1 million into and put it out of business."

In addition to attending the conference to gather information, Mr. Oker, also an attorney, took advantage of the six continuing education credits the all-day conference offered. "If I lose my smoking population, I'll be out of business," he said.

"And you'll also be out of business if one of your employees sues you for exposure to secondhand smoke," said Ms. Mickey.

After years of litigation over various county Clean Indoor Air ordinances, the West Virginia Supreme Court unanimously upheld the right of county boards of health to regulate smoking.

The opposite occurred in Ohio in 2002, when the state Supreme Court voted 6-1 to strike down Lucas County's broad ban on smoking in public places, including bars, restaurants, and bowling alleys. The court determined the county board of health had overstepped its authority.

Toledo later enacted a similar ban, but a subsequent voter referendum opened an exemption for bars and bowling alleys.

"The answer to all of this is a statewide regulation for Clean Indoor Air," said John Madigan, attorney for the city of Toledo.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.