Smoking ban clouded in confusion

4/27/2001

A health board regulation that would ban smoking inside public places in Lucas County is mired in a procedural mix-up complicated by a potential conflict with a city of Toledo ordinance.

The Toledo-Lucas County board of health mistakenly thought it had passed the controversial regulation in a 5-4 vote yesterday.

Instead, the much-debated measure is in limbo as lawyers and health department officials try to sort out the confusion.

Here's what happened yesterday:

The Toledo-Lucas County health board voted to accept its no-smoking regulation for a third reading, thinking that vote guaranteed passage. However, the board has 11 members, and its rules require six affirmative votes to pass a regulation. Board member Robert Shultz was absent because he was ill, and Arturo Quintero abstained.

The 5-4 vote counts as an official third reading - the board needs to “read” a regulation three times before a regulation is passed - but it must now take another vote for passage or rejection. If passed, it would go into effect after 45 days.

Health board president Dr. John Newton was one of those who voted yes, thinking it was for passage, but he and the other board members were told later by legal counsel the board was mistaken.

Dr. Newton said the mistake was a minor glitch.

“We'll just redo the vote,” he said, indicating the board could take the matter up again at its May 24th meeting or hold a special meeting.

It doesn't appear the board will have much trouble getting six votes. Several of the members who voted no yesterday said they did so only because they wanted more time to consider a late-breaking development brought up by Mr. Quintero, who is an executive assistant to Mayor Carty Finkbeiner.

He maintains that a review by the city law department found the health board regulation conflicts with a 1987 Toledo ordinance that permits smoking in bars, restaurants, and many other areas. The ordinance requires no-smoking sections in some cases.

His question was a bombshell for board members and could kill the no-smoking regulation, even if the board eventually passes it.

Board member Richard Lehman, who voted against the measure, said he supports the regulation, and once he gets more information about Mr. Quintero's concerns, he's willing to vote yes. Board members Joan Mossing and Mary Gregory, who both voted no, said much the same thing. Board member Doni Miller, who voted no, did not say if she supported the regulation, but said she needed more information.

Realizing the city ordinance could prevent enactment of the no-smoking regulation, Mayor Finkbeiner yesterday directed legal staff to draft legislation for consideration by council that would remove the conflict.

Ford Weber, a senior attorney in the city law department, said the new legislation would state that the health board's regulation would supercede the city's clean indoor air ordinance. He said he hopes to finish the draft soon, possibly in time for the city council meeting Tuesday.

Most city council members contacted yesterday said they'd have to study the matter before deciding how to vote.

Councilman Pete Gerken said he would be reluctant to give up the city's jurisdiction on its smoking ordinance. He was surprised that the mayor was willing to give up power in this situation and called Mr. Finkbeiner's proposal a “knee-jerk reaction”.

Lance Kieffer, assistant Lucas County prosecutor, has been giving legal advice to the board and said he's not convinced Mr. Quintero is correct that the city ordinance automatically trumps a health board regulation.

For example, the city's ordinance says it shall be in effect as long as no other law conflicts with it. Mr. Kieffer said one question is whether a health board regulation would be interpreted by courts as having the weight of a law.

Health board members were angry at the last-minute news from Mr. Quintero.

“It almost feels like a sandbag,” Dr. Newton said.

One reason the matter has become so confusing is that the city law department's view appears to contradict with a legal opinion issued Tuesday by the Ohio Attorney General. The health board, through Mr. Kieffer's office, had asked the attorney general to review the regulation to avoid confusion and make sure the board was on firm legal ground.

Attorney General Betty Montgomery issued a nonbinding opinion stating that the board has the authority to pass a no-smoking regulation provided there are no exceptions, such as allowing smoking in bars. The attorney general also said the regulation would not conflict with “provisions of statute or constitution.”

But the city law department said the opinion dealt only with possible conflicts with state law, rather than local law.

Dr. David Grossman, Toledo-Lucas County health commissioner, said he was especially annoyed because the city law department previously appeared to give a green light to the health board.

On March 27, the department issued an analysis that said the health board's regulation wouldn't conflict with any state law. However, the analysis did not raise the potential for conflict with city ordinances.

The analysis said, “if the courts conclude the rule-making powers of local boards of health include the authority to regulate smoking in public places, it is likely that the courts will also find the [health board regulation] is legally enforceable.”

Mr. Kieffer had known about the Toledo city ordinance and had assumed the health board could pass a regulation with stricter provisions than the city's. Dr. Grossman said that based on Mr. Kieffer's feelings and after reading the city law department's own memo, the health board didn't see any problems.

Mr. Weber said the law department wasn't specifically asked about a potential conflict with city ordinance, so it didn't address that in its March findings. He said Mr. Quintero asked the law department to look at the matter again, and that's when it was discovered that the attorney general appeared to clear the board from state conflicts, not local ones.

Even if city council rescinds its own smoking regulation or cedes authority to the health board, there's no guarantee other cities in Lucas County won't pass their own indoor air regulations.

Kevin Olman, president of the Maumee city council, said he thinks his city would consider passing its own regulation, similar to Toledo's, that would circumvent the health board.

Potential challenges by other cities aren't the only problem. All along the health board has assumed it will be taken to court by bar and restaurant owners.

Arnie Elzey, owner of Arnie's Eating and Drinking Saloon in West Toledo, repeated yesterday that he's considering filing a lawsuit, although he said he wants to sort out the confusion from the vote first. Mr. Elzey said he has formed a political action committee and will begin raising funds from bar and restaurant owners to fight the regulation if it goes into effect.